1.1. Subject matter of the agreement. The following terms and conditions (hereinafter GT&C) apply to the licensing of software, maintenance and support, as well as for the IT services of Quanos Service Solutions GmbH (hereinafter Quanos). The provisions contained herein on the licensing of software apply to the standard software offered by Quanos as well as for software that Quanos develops for the customer individually. IT services within the meaning of these GT&C include in particular the installation, configuration, customizing and individual programming of software as well as training and IT consulting.
1.2. Customer's terms and conditions. Contradictory or additional contractual terms and conditions of the customer are only valid if Quanos expressly confirms the application of such terms and conditions in writing.
1.3. Future business. The following terms and conditions apply in the case of ongoing business relationships and also for all future mutual transactions between the parties.
1.4. B2B. Quanos offers services exclusively to entrepreneurs within the meaning of section 14 German Civil Code (BGB).
2. OFFERS; CONCLUSION OF THE AGREEMENT; SUBCONTRACTORS
2.1. Conclusion of the agreement. An agreement is concluded upon written acceptance of the offer made by Quanos to the customer, at the latest, however, upon acceptance of the delivery (Separate Agreement).
2.2. Order of precedence. If these GT&C and a Separate Agreement contain different provisions on the same subject, the provision of the Separate Agreement takes precedence.
2.3. Subcontractors. Quanos may provide the contractually owed services through qualified subcontractors.
3. SOFTWARE LICENSING / RIGHTS OF USE
If the subject of the agreement is the licensing of software, the following terms and conditions govern the granting of rights of use to the software and delivery of the software:
3.1.1. If the customer purchases a license restricted to the number of named users (Named Users), (i) the customer is authorized, subject to the terms and conditions of these GT&C and the Separate Agreement, to install the software on workstations of its named employees and of third parties to the extent that they work for and on behalf of the customer, and (ii) the Named Users are authorized, subject to the terms and conditions of these GT&C and the Separate Agreement, to use the software on these workstations in accordance with the software license’s intended purpose.
3.1.2. If the customer purchases a license restricted to a number of unnamed users (Concurrent Users), the customer is authorized, subject to the terms and conditions of these GT&C and the Separate Agreement, to install the software on a server operated by the customer or on the customer's behalf, and to make the licensed software available to its employees as well as third parties to the extent that they work for and on behalf of the customer, provided that the number of concurrent users does not exceed the contractually stipulated maximum number of users.
3.1.3. If the customer purchases a license restricted to a use within a company (Enterprise License), the customer is authorized, subject to the terms and conditions of these GT&C and the agreement, to install the software on a server operated by the customer or on the customer's behalf, and to make the licensed software available to its employees at the location specified in the Separate Agreement as well as to third parties to the extent that they work at such a location for and on behalf of the customer.
3.1.4. The customer may make the service and IT systems and other results generated with the software available to third parties on data storage media, for download, or for access using an internet browser. Any restrictions indicated in Quanos' offer on the number of third parties to whom the work results may be made accessible or transmitted must be complied with. If the permissible number is exceeded, the customer will inform Quanos without undue delay. This obligation also applies after the end of the term of the right of use.
3.2. Duration of the right of use. The duration of the right of use is specified in the offer. If the customer purchases a term license, its duration begins upon delivery of the software (section 3.12). It may be terminated by each party without disclosure of reasons with a notice period of four weeks as of the end of a calendar month, but not before the expiration of the minimum term stipulated in the Separate Agreement. Notice of termination requires the written form. The right to termination for good cause is not affected hereby.
3.3. Transferability. The rights of use granted to the customer are non-transferable, except that they are transferable with respect to software programs to which Quanos has granted the customer a right of use for an indefinite period in consideration of a one-time fee (software purchase). In the case of a software purchase, if the customer transfers the right of use to the software, the customer's right of use lapses automatically upon transfer. The prohibition on leasing the software to third parties remains unaffected hereby.
3.4. Condition precedent. If the customer purchases a perpetual license, the granting of rights is subject to a condition precedent to the date of full payment of the purchase price pursuant to section 6.2. Quanos acquiesces to the use of the software in the manner described above until full payment. The acquiescence is revocable if the customer is in default of payment.
3.5. License key. The license key required for the installation of the software serves to facilitate substantiation of the customer's authorization. Possession or use of the license key alone does not grant any right to use the software. Such a right follows only from an agreement with Quanos or from a statutory provision.
3.6. Restrictions and prohibitions on use. The following actions by the customer are not authorized:
3.6.1. Modification, adaptation, translation, processing, arrangement or other reworking of the software as well as duplication of the results generated by such actions, unless these actions are necessary for the intended use of the software, including the correction of errors by the persons authorized to use the program, and Quanos has not offered, and in the event of commissioning, carried out the elimination of the obstacle to intended use within a reasonable time;
3.6.2. Disassembly, decompilation, reverse engineering, or use of another process to obtain the source code, unless these actions are necessary for achieving the interoperability of an independently created computer program with other programs and Quanos has not provided the necessary information within a reasonable period;
3.6.3. Duplication of the software with the following exceptions: installation and execution pursuant to section 3.1 above, creation of a backup copy, which must be marked as such;
3.6.4. Removal or alteration of trademarks, copyright notices or other proprietary notices from the software;
3.6.5. Lending, hiring out, leasing or otherwise handing the software over to a third party on a temporary basis;
3.6.6. Use of the software on behalf of a third party, e.g., as software as a service (SaaS) or as an application service provider (ASP);
3.6.7. In the event of a licensing of Quanos software for the creation of service and information systems: the development, modification or arrangement of similar systems through analyzing the structures underlying the service and information systems created by use of the software.
3.7. PARTS-PUBLISHER Offline Viewer License. In the event that the customer acquires a production software program for the creation of service and information systems, in particular spare parts, service, and ancillary component catalogues, together with the right to grant a license of a PARTS-PUBLISHER Offline Viewer software program (in the following „Viewer Software“) to its own customers, then the customer may license a copy of the Viewer Software to its own customers for the sole purpose that its customers have a read only access to the service and information systems which the customer has delivered to them. The use of the Viewer Software is subject to the applicable Viewer license agreement. Prior to concluding the respective agreement with its own customer, the customer will make its own customer aware of the terms and conditions of the Viewer license agreement and will point out to its customer that such license agreement shall apply. The applicable Viewer license agreement at the time can be viewed and be downloaded at https://quanos-service-solutions.com/en/gtc. Upon the customer’s request, Quanos will also send the Viewer license agreement to the customer.
3.8. Contractual commitment. The copyright provisions contained in this section 2 also bind the parties under the law of obligations.
3.9. Infringement of rights. The customer will inform Quanos without undue delay as soon as the customer becomes aware of the breach of an industrial property right or copyright to or in the software or the disclosure of user identities or passwords to unauthorized users.
3.12. Delivery. Unless otherwise expressly agreed between the parties, delivery of the software takes place upon installation of the software by Quanos.
3.13. Executable version. Quanos owes the software as an executable version in the object code. The source code of the software is not owed.
4. MAINTENANCE / SUPPORT
4.2. Support. If the customer purchases additional support, Quanos will provide the following services:
4.2.1. Quanos will provide the customer with a support hotline by telephone, email and online (ticket system) during Quanos' business hours. Business hours are Monday to Thursday from 8:30 am to 5:00 pm and Friday from 8:30 am to 4:00 pm, with the exception of holidays in the German federal state of Bavaria.
4.2.2. Between Monday and Friday (with the exception of holidays in Bavaria, hereinafter referred to as Business Day(s)), Quanos will respond within 24 hours of receipt of a support request. Quanos will respond to support requests received outside of a Business Day by the end of the Business Day following the request.
4.2.3. If the customer reports an error in the software using a support request, Quanos will endeavor to provide the customer with a workaround or complete removal of the error within three Business Days after the end of the reaction time stipulated in section 4.2.2. The customer will support Quanos in the elimination of errors to the extent necessary and reasonable. The customer's obligations to cooperate include, in particular, providing detailed information on (1) the environment in which the error occurs and (2) all steps required to reproduce the error.
4.3. Services not included. The following services are not included in maintenance and support and can be offered separately by Quanos at the request of the customer:
- Configuration, i.e., the adjustment of the standard software to adapt it to the customer's individual wishes and circumstances (e.g., layout colors and logos, forms, mapping of parts lists, etc.)
- Customizing, i.e., customization of the standard software by programming to the customer's individual wishes (e.g., complex changes of layout, shopping cart functionality, integration of web services)
- Programming of modules and functions that are not included in the standard scope of delivery
- Partial and full conceptual consulting
- Support for CAD applications; maintenance and engineering of use data for the software
- Expenses for general hardware and software installation
- Hardware diagnostics, error correction and configuration of the computers
- Hardware refresh and replacement in the production system
- Hardware/software performance measures, performance tuning
- Operation of the production system
- Infrastructure for testing, installation and operation
- Additional software procurement for extensions
- User training
- Superordinate scheduling and coordination with other involved departments, suppliers, and service providers (internal/external)
Exclusions from maintenance and support services
- Elimination of errors caused by the following:
- Improper use, deviating from the documentation supplied, modification of or damage to the software by the customer
- Modifications to the software not made by Quanos
- Application programs not supplied or authorized by Quanos
- Use of the software on operating systems not approved by Quanos
4.4. Term. If the customer purchases maintenance and/or support (maintenance or support agreement) with or before delivery of the software (section 3.12), the term of the maintenance and/or support agreement begins on the first day of the month following the delivery date. If the customer purchases maintenance and/or support during the term of the software license, the term begins on the first day of the month following the day on which the relevant agreement is concluded. The term ends on December 31 of the calendar year following the calendar year in which the term begins. Following expiration this initial term, the term extends automatically by twelve months in each case, unless the maintenance or support agreement is terminated by either party upon three month notice at the end of the respective initial or renewal term. Notice of termination requires the written form. The right to termination for cause shall not be affected hereby. Notwithstanding the above, the term for maintenance and support shall in any event terminate upon termination of the respective software license.
4.5. Congruence. If the customer purchases maintenance and/or support, maintenance and/or support agreements must be concluded for all software programs licensed by Quanos to the customer. This applies in particular to the purchase of additional modules for software licenses already purchased by the customer which are subject to maintenance.
4.6. Liability for defects. Quanos' liability for defects remains unaffected by maintenance and support.
5. IT SERVICES
5.1. Quanos' obligations. If the customer purchases IT services from Quanos, Quanos shall provide the specified services under a Separate Agreement. Quanos does not owe any additional services. Quanos shall provide the stipulated services based on the established state of the art and in accordance with the specification of services using professional expertise. Quanos may replace employees or contractors with other qualified employees or service providers at any time. Unless expressly stated otherwise in a Separate Agreement, Quanos is not obligated to achieve specific results.
5.2. Customer's obligations to cooperate. The customer will provide the co-operative performance stipulated in the Separate Agreement (e.g., provision of infrastructure, staff, hardware, documents, organizational support). Unless stipulated otherwise in a Separate Agreement, the customer's personnel will be available to answer Quanos' inquiries within one Business Day. Quanos may demand the replacement of the customer's participating employees or contractor if the employee or contractors, as applicable, to be replaced is not qualified or ready to cooperate. The customer is responsible for the practical implementation of the services owed, even if the customer and Quanos jointly develop a plan for the practical implementation of the services owed.
5.3. Deadlines. If a Separate Agreement provides for specific deadlines for the provision of contractually owed services or part thereof (milestones), these deadlines are only estimated dates and are not binding, unless they are expressly designated as binding.
5.4. Work results. Work results owed by Quanos will be delivered by Quanos in accordance with the contractual specification of services, and in cases of work results which are subject to acceptance, will be examined and accepted by the customer in accordance with the contractually stipulated criteria and tests. The customer will inform Quanos without undue delay in writing of possible defects that are uncovered in the acceptance test, including a reasonably detailed specification of the nature and conditions of these defects (Defect Report). The work results will be considered to be accepted if a Defect Report is not received by Quanos within four weeks following delivery.
6.1. Compensation provision in the Separate Agreement. The amount and manner of compensation are stipulated in the Separate Agreement. In addition, the following provisions apply.
6.2. Compensation for perpetual licenses. The fees for software licenses granted for an indefinite period in consideration of a one-time fee (software purchase) is payable upon conclusion of the agreement and receipt of the invoice by the customer.
6.3. Compensation for limited term licenses. The recurring fees for software licenses granted for a limited period of time is payable for the first time upon conclusion of the Separate Agreement and subsequently monthly in advance on the first day of the calendar month. If a license begins or ends during a month, the monthly fee is also charged in full for these months, unless otherwise agreed between the parties.
6.4. Maintenance and support fees. Maintenance and support fees are charged annually in advance. The annual fees are payable on the first day of each billing period, for the first time on the first day of term pursuant to section 4.4, subsequently on the first day of the calendar year. If the maintenance and/or support agreement begins or ends during the year, the fees for the year in question are changed on a pro rata basis.
6.5. Compensation for IT services. The following terms and conditions apply to the provision of IT services:
6.5.1. If the fees are time-based, Quanos will charge the customer at the end of the month the fees for the work provided during the month at the stipulated hourly or daily rates.
6.5.2. If the parties agree to a flat-rate fee, Quanos is authorized to charge the customer partial payments in the amount of the value of services provided and owed by Quanos pursuant to the agreement.
6.6. Costs. Unless stipulated otherwise, the customer will bear the costs of materials, travel and expenses incurred by Quanos in the course of providing the services. Travel costs and expenses will be charged based on the actual expense and at flat-rate expense rates in accordance with statutory provisions applicable in each case. Travel time will be charged at the same hourly rate as working time. If hourly rates are not charged in individual instances, an appropriate hourly rate will apply to the charging of travel time taking the respective personnel’s qualification into account.
6.7. Net prices. All prices are understood to be net prices plus statutory value added tax applicable at the time.
6.8. Right of price adjustment. Quanos may reasonably adjust the amount of the recurring fees for software licenses limited in time as well as maintenance and support fees annually. When making an adjustment, Quanos takes into account interim changes in the cost of wages and salaries and as well as costs for the acquisition of IT services. An adjustment will become effective on the date specified by Quanos, but not earlier than one month following receipt of the notification of the adjustment by the customer. In the event of an increase in compensation by more than 5% in each case, the customer may terminate the Separate Agreement in question by way of extraordinary termination with effect from the effective date of the increase. The termination must be declared in writing and without undue delay following receipt of the notification of the increase.
6.9. Exceedance of stipulated usage restrictions. In the case of software licensing, if the number of third parties to whom work results generated with the software may be made available or delivered is contractually limited and the parties have agreed on additional fees when the permitted number is exceeded, the additional fees will be charged as of the date on which the permitted number was first exceeded.
6.10. Offsetting; retention. An offsetting or retention is permissible only in the case of undisputed or finally adjudicated counterclaims of the customer.
7. INDUSTRIAL PROPERTY RIGHTS; COPYRIGHTS
Quanos and its licensors own all copyrights and industrial property rights to the licensed software products. If the customer becomes aware of breaches of Quanos' or Quanos’ licensors rights, they will inform Quanos without undue delay.
8. LIABILITY FOR DEFECTS
8.1. Subsequent performance. In the event that Quanos owes the licensing of a software license for an indefinite period (software purchase) or a success-oriented activity under a contract for work (Werkvertrag) or a contract for delivery of work (Werklieferungsvertrag), and Quanos’ performance was not free from material defects in rem or defects in title, Quanos may upon the customer’s request for an elimination of the defect choose between a remedy of defects or replacement delivery (collectively Subsequent Performance). If the Subsequent Performance fails, the customer may withdraw from the agreement or reduce the fees. A failure to remedy a defect is only to be assumed if such remedy is impossible, if it is refused or unreasonably delayed by Quanos, if there is reasonable doubt about the prospects of success after a second attempt at Subsequent Performance, or if an additional attempt at Subsequent Performance is not reasonably acceptable for the customer. The provision of a workaround as a preliminary solution must be taken into account in the assessment. The statutory cases of dispensability of setting a deadline are not affected hereby.
8.2. Statute of limitations. Statutory warranty claims, in particular warranty claims for software purchases, expire 12 months from delivery (section 3.12), contractual warranty claims under a contract of work (Werkvertrag) expire 12 months from acceptance. Damage claims as well as claims for defects due to fraudulent concealment of defect are excluded herefrom.
8.3. Exclusion of strict liability (liability without fault). In the event that Quanos owes a limited term license in consideration of recurring compensation, the strict liability for damages regardless of fault by Quanos is excluded for defects already existing when the agreement was concluded (section 536a (1) BGB).
8.4. De minimis. There are no warranty claims for insignificant deviations from the stipulated quality, which do not significantly hinder the use of the service.
8.5. Damages. The customer is only entitled to claims for damages due to defects to the extent Quanos' liability is not excluded or limited in accordance with section 9 of these GT&C.
9.1. Intent and gross negligence. Quanos has unlimited liability for intentional damage or damage caused by gross negligence (grobe Fahrlässigkeit).
9.2. Ordinary negligence. Quanos' liability for ordinary negligence (einfache Fahrlässigkeit) is limited to damages foreseeable at the conclusion of the agreement and that are typical for the agreement, which are caused by the breach of a primary performance obligation or of an accessory obligation, the breach of which endangers the achievement of the purpose of the contract, or the satisfaction of which makes the proper execution of the agreement possible in the first place and on whose compliance the customer may rely (hereinafter Material Accessory Obligation). Quanos is not liable for ordinary negligent breach of accessory obligations that are not Material Accessory Obligations. However, the limitations and exclusions of liability stipulated above do not affect Quanos' liability for an assumed guarantee of quality, malice, damages from the injury to life, limb or health, or for product defects in accordance with of the German Product Liability Act. This provision does not entail a change in the burden of proof to the detriment of the customer.
9.3. Beneficiaries. To the extent liability is excluded or limited pursuant to this section 9, this also applies to the personal liability of Quanos' employees, staff, representatives and vicarious agents.
10. CONFIDENTIALITY; DATA PROTECTION
10.1. Confidentiality. The Parties undertake to maintain strictest confidentiality about all confidential information, including know-how, and business and trade secrets of the other party, to which they became cognizant during the course of execution of the agreement, and not to pass them on or use them in any other way. This applies to any unauthorized third parties, unless the disclosure of information is necessary for the proper execution of the agreement.
10.2. Data protection. If the customer commissions Quanos with the collection, processing and use of personal data or Quanos gains access to personal data used by the customer when executing the agreement, Quanos will process and use these data only in compliance with data protection provisions, in particular those of the German Data Protection Act as well as of the General Data Protection Regulation.
10.3. Cooperation. The customer will inform Quanos of all relevant facts the cognizance of which is necessary for Quanos for reasons of data protection or confidentiality.
11. INDEPENDENT CONTRACTUAL PARTNERS
The Parties are independent of each other. There exists no company, joint venture, or comparable legal relationship between the parties. Neither party is authorized to represent the other party in legal transactions. Each party is authorized to instruct, supervise and issue instructions exclusively to its own personnel. The employees of one party are at no time integrated into the operational or work organization of the other party.
12. FINAL PROVISIONS
12.1. Severability clause. Should individual provisions of the agreement be or become invalid in whole or in part, the effectiveness of the remaining provisions will not be affected thereby. In such an event, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to fulfilling the economic intent and purpose of the invalid provision. The same applies to any loopholes in the agreement.
12.2. Place of jurisdiction. Starnberg, Germany, is the exclusive place of jurisdiction for all disputes from or in connection with the agreement. Quanos may also bring legal action at the customer's domicile or any other competent court.
12.3. Applicable law. This agreement is construed in accordance with and governed by the laws of the Federal Republic of Germany, with the exception of those regulations regarding the choice of applicable law, which would lead to the application of another legal system. The applicability of the CISG (UN Convention on Contracts for the International Sale of Goods) is excluded.
Version as of November 2020