General Terms and Conditions for the calculation software Spanflug Make as Software-as-a-Service (SaaS) of Spanflug Technologies GmbH

Status: September 8, 2022

These General Terms and Conditions ("Terms & Conditions") and the Contract entered into on the basis of them ("Contract") conclusively regulate the contractual relationships between the Spanflug Technologies GmbH, Bürgermeister-Steinberger-Ring 4, 84431 Rattenkirchen ("Provider") and the customer with regard to the use of the software described in these GTC. 

1. Definitions

The following terms have the meaning stated below:

"Customer" means the person who enters into the Contract under these GTC for use of the Software.

"Service description" means the description of the software available at https://spanflug.de/make/.

"User fee" means the fee for use of the Software indicated in the Service Description.

"Software" means the calculation software described in the Service Description.

"Users" means a person who uses the Software on behalf of the Customer.

2. Use of the software

2.1 The Provider makes the Software described in the Service Description available to the Customer for the duration of the Contract for use with a common browser as a cloud solution (SaaS).

2.2 The Provider is entitled but not obliged to further develop or otherwise modify the Software at any time.

2.3 The Customer agrees (i) except as expressly permitted in this Contract, not to modify, copy, use or create derivative works of the Software in any manner (ii) not to attempt to circumvent, disable or defeat any technical limitations on use of the Software; (iii) not to make the Software, in whole or in part, available to any third party (iv) to use the Software in an automated manner or process the results of the Software in an automated manner. The Customer will only use the Software for its own business purposes.

2.4 The Provider is entitled to demand from the Customer a list of those persons who actually use the Software within the scope of the right of use granted, if circumstances exist which indicate that the Software is being used by persons other than the authorised Users. The Customer is obliged to compile this list completely and truthfully without undue delay after being requested to do so by the Provider and to make it available to the Provider. If the Customer fails to properly fulfil its obligation to prepare such list or if the list is incorrect and/or incomplete, the Provider is entitled to terminate this Contract extraordinarily. Further claims of the Provider remain unaffected.

2.5 The Customer will use the contractual services exclusively in accordance with applicable law and, in particular, not upload any data to the Software that violates applicable law or the rights of third parties. The Customer will indemnify the Provider against third-party claims in this respect.

2.6 The Customer will ensure that it treats the access data to the Software confidentially and does not disclose it to third parties. If there is reasonable cause to believe that unauthorised third parties have gained access, the Customer must notify the Provider immediately and change its access data. The Customer is responsible for all actions taken using its access data.

2.7 The Provider is entitled to all existing industrial property rights including copyrights and related rights in the Software or in connection with the Software.

2.8 The Software only provides estimates for the manufacturing costs of components, which are calculated using sophisticated automated programs. The Provider is not liable if the actual production costs deviate from the production costs estimated by the program. The Customer undertakes to verify the results of the Software and only use the results of the Software productively if the results have been successfully verified.

3. Warranty

3.1 During the term of the Agreement, the Provider warrants that the Software has substantially the agreed quality, that the Customer's use of the Software to the extent contractually agreed does not infringe any third-party rights, and that the Software is available within the availability rate described in Section 3.6.

3.2 The quality of the Software is specified exclusively in the Contract. Warranties regarding the Software in public statements, in particular in advertising or statements by the Provider's employees, do not contain any indications of the quality, unless the Provider's management has expressly confirmed them in writing. The Provider does not give any guarantee and does not assume any procurement risk, unless expressly agreed otherwise in writing between the parties.

3.3 Minor deviations between the Software and the agreed quality or minor impairments of the usefulness of the Software do not constitute defects. This also applies to minor malfunctions that only have a minor effect on the Software or do not or interfere with the functionality of the Software, or only do so to an insignificant extent.

3.4 If the Customer does not report a defect by email to support@spanflug.de within one week after it first occurs together with information about its occurrence and the possibility of reproducing the defect, the Customer's rights in connection with such defect are excluded.

3.5 Claims due to defects are excluded if the Customer

a) exceeds its right of use,

b) makes changes to the Software itself or causes or permits third parties to make changes, or

c) otherwise uses the Software in an improper or inappropriate manner.

3.6 The Provider warrants an availability of the Software of 99% per Availability Period (as defined below) ("Availability Rate"). The "Availability Period" is calculated as follows: one full contractual month, thereof Mondays to Sundays (excluding national holidays), 6 a.m. to 11 p.m. German time, excluding Maintenance Periods (as defined below). The Provider is entitled to carry out maintenance work on the Software a) with at least one week advance notice (whereby an email notification or warning in the Software will suffice) and/or b) at any time for troubleshooting work to protect data of the Provider or the Customer ("Maintenance Periods"). The Availability Rate will be deemed not to have been breached if a) access to the Software is possible but it does not function correctly, or b) access to the Software is not possible due to outages or other unavailability or disruptions due to causes within the sphere of third parties, suppliers or telecommunication providers or is otherwise beyond the Provider's control.

3.7 In the event of a defect under this Contract, the Provider will remedy the defect at its own discretion; further warranty claims are excluded. The Customer is only entitled to terminate this Contract due to a defect in the Software if the defect significantly impairs use of the Software and the defect could not be remedied within a reasonable period of time.

3.8 The Customer is obliged to provide the Provider with verifiable documentation and information on the type and occurrence of deviations from the Service Description of the Software and to cooperate in containing and identifying errors and their sources.

4. Liability

4.1 In any case of simple negligence each Party is liable for the breach of a contractual obligation which gives distinction to the contract and on which the other Party may rely on (essential obligation) and limited to the typical and foreseeable damage only; this exception does not apply to culpable damage to life, body or health nor in cases of mandatory liability including without limitation liability for cases in which a procurement risk or a guarantee for damages has been assumed, liability under the Product Liability Act, fraudulent concealment of a defect or in the event of default. In addition, the Parties cannot be held strictly liable for a defect which exists when the Contract is entered into.

4.2 The liability of the parties pursuant to section 4.1 sentence 1 is also a) excluded for indirect damage, including loss of profit, and b) limited in total for all damage in connection with this Contract to the remuneration payable under the Contract.

4.3 If damage occurs or has already occurred, the parties undertake to make all necessary efforts or promptly arrange that all necessary efforts are made to minimise the damage and its effects.

4.4 The Provider is only liable for data losses up to the amount that would have been incurred to restore the data if the data had been properly and regularly backed up.

5. Module Free

5.1 The Provider may make the Software available free of charge for a limited period of time for testing purposes or with limited functionality. Details are defined in the Service Description. Sections 599, 600 German Civil Code (BGB) apply and the Provider does not give any warranty in this respect and is not liable in the event of simple negligence. The period of free use and the functionality can be limited by the Provider at any time, even during the term of the Contract. A separate declaration by the Provider to the Customer is not required. The Contract may be terminated by either party at any time without notice. In the case of free use, including use of the Free module, this section shall take precedence over the other provisions of this Contract

6. Support

6.1 The Customer may contact the Provider by email to resolve problems and any incidents with regard to the Software. This form of support is an additional service free of charge for the Customer and can be supplemented or changed by the Provider at any time. Email enquiries from the Customer must be sent to the following email address: support@spanflug.de. The Customer may contact the Provider by email to resolve problems and any incidents with regard to the Software. This form of support is an additional service free of charge for the Customer and can be supplemented or changed by the Provider at any time. Email enquiries from the Customer must be sent to the following email address: support@spanflug.de. The email must contain a description of the technical problem, the user name and the operating system used and any other relevant information describing the issue. Contact details (telephone numbers and fax numbers) under which the respective Customer can be reached must also be provided. The Customer must ensure that in any communication with the Provider, Customer data is only transmitted in anonymised form and that no conclusions can be drawn about individual natural persons. The Provider will endeavour to assist the Customer in the event of support requests, but does not owe any problem resolution. 

7. Confidentiality

7.1 The Customer undertakes towards the Provider to keep secret all confidential information of which it has become or will become aware prior to and/or in the course of performing this Contract, and in particular to prevent any access to such information by third parties. The Customer must oblige all Users, staff and employees authorised by it, insofar as they are not already obliged to do so on the basis of their employment contracts, to maintain confidentiality to the same extent as defined here.

7.2 The confidentiality obligation under section 7.1 binds the Provider accordingly for confidential information of the Customer. In particular, the Provider will not pass on the Customer's data to unauthorised third parties, will only make it accessible as necessary to a limited number of employees and must delete it without undue delay at the Customer's request. The Provider does not evaluate information from customers or about customers and does not pass such information on to third parties. The Provider is entitled to use subcontractors.

7.3 Confidential within the meaning of this Contract is all information that is marked as such by the Provider or where its confidentiality is evident from the circumstances.

7.4 The obligation to maintain confidentiality pursuant to the foregoing section 7.1 does not apply to confidential information (i) which is already in the public domain or in the public domain at the time the Customer becomes aware of it or becomes aware of it without a breach of this confidentiality obligation, (ii) which is provided to the Customer by a third party without a breach of a confidentiality obligation towards the Provider, (iii) which is developed by the Customer independently of this Contract; or (iv) if and to the extent that the confidential information is required to be disclosed pursuant to an enforceable governmental or court order and the Customer has notified the Provider promptly after becoming aware of the disclosure obligation and has given the Provider an opportunity to oppose the disclosure.

8. Data protection and data processing management

8.1 If the Customer transmits personal data to the Provider in a non-anonymised form, the Customer is solely responsible in the relationship between the parties for the legality (under data protection law) of the transmission to the Provider and its collection, processing or use of the transmitted data in accordance with the agreement. In this respect, the Customer must in particular ensure that the persons whose personal data is transmitted to the Provider (in particular the Users authorised under this Contract, including assistants) give their documented consent to the transmission and to collection, processing and use of the transmitted data by the Provider, the use of the Software and/or the provision of services. 

9. User fee

9.1 The amount of the User Fee is based on the Service Description.

9.2 The User Fee is due upon invoicing.

9.3 All User Fees are subject to statutory value added tax, where applicable.

9.4 The Provider may change the User Fee at its reasonable discretion on 1 January of each calendar year, but at the earliest after a period of at least three (3) months. The Provider will exercise its reasonable discretion in such a way that the increased User Fee is within the range of what is customary in the market and corresponds to what is regularly charged for a comparable service; the contractual purpose and the interests of the parties must also be taken into account. It is also permissible to increase the User Fee if the Provider's costs for providing the Software have increased with regard to offering the Software or due to new statutory provisions. The Provider will notify the Customer in writing (email is sufficient) of any change in the User Fee three (3) weeks before the change takes effect. If the Customer objects to the increase in the User Fee within fourteen (14) days in writing (email is sufficient), the User Fee will not be adjusted and both the Provider and the Customer may terminate the Contract extraordinarily within fourteen (14) days.

10. Term; Termination

10.1 The parties agree that the term is indefinite. Unless otherwise stipulated in the Service Description, either party may terminate this Contract with one month's notice a) to the end of a contractual year in the case of an annual subscription and b) otherwise to the end of a month.

10.2 This does not affect the right of both parties to extraordinary termination of this Contract for good cause. Good cause for extraordinary termination by the Provider exists in particular if

  • the Customer is more than four (4) weeks in arrears with payment of the fee or
  • the Customer has allowed third parties unauthorised access to the Software.

 

10.3 Furthermore, extraordinary termination is permissible with a notice period of two (2) weeks if the Provider becomes aware that the Customer or another User is violating the terms of use, in each case if and to the extent that the Provider has issued a warning to the Customer and the violation has not ceased within a period of two (2) weeks and it has been proven that the violation continues to exist.

10.4 Termination must be in writing (email to the respective email address provided by the other party or message in the online form provided is sufficient).

10.5 Upon termination of this Contract, all rights of the Customer to use the Software and the material will lapse.

10.6 All payment obligations relating to this Contract and arising prior to termination of this Contract and all provisions relating to confidentiality, ownership, industrial property rights including copyrights and related rights and protection and restrictions on use of the material (in particular the Software) survive any termination of this Contract in whole or in part.

11. Miscellaneous

11.1 The Customer may only set off its own claims against claims of the Provider or assert rights of retention concerning such claims if the claims are undisputed or have been declared final and absolute by a court of law.

11.2 Any amendments or additions to this Contract must be in writing to be valid. This also applies to any amendment to this clause.

11.3 If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the Provider. However, the Provider is also entitled to assert a claim at the Customer's general place of jurisdiction.

11.4 This Contract, its interpretation and all non-contractual obligations in connection with it are governed by the substantive law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply. The Provider is entitled to amend these GTC for the future. The Customer must be notified in writing (email is sufficient) of any changes. The changes will become effective unless the Customer has objected to them in writing to the Provider within four (4) weeks of receipt of notification pursuant to sentence 2. In the written notification pursuant to sentence 2, the Provider must again expressly draw the Customer's attention to the significance and legal consequences of silence. If the Customer objects to the changes to these GTC, both the Provider and the Customer may terminate this Contract extraordinarily.

11.5 If the Contract requires written form, a simple email will suffice, unless otherwise specified.

11.6 General terms and conditions and other pre-printed provisions on letters of both parties do not apply to this Contract.

11.7 Should individual provisions in this Contract be or become void or invalid in whole or in part, this will not affect the validity of the other provisions. The provisions of statutory law (Section 306 (2) German Civil Code (BGB)) will apply instead of any standard business terms that are not included or are invalid. In all other respects, the parties will agree on a valid provision to replace the void or invalid provision that reflects as closely as possible the original economic purpose, provided that no supplementary interpretation of the Contract takes precedence or is possible. This section also applies in the event of lacunae.

11.8 In case of conflicts between the German and the English version of the Contract, the German version prevails.

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