1. Scope / Conclusion of contract
1.1. For the business relationship between the company Matplus GmbH, Hofaue 55, 42103 Wuppertal, represented by the managing director Mr. Uwe Diekmann, (hereinafter referred to as Matplus) and the customer who is an entrepreneur, the following terms and conditions apply exclusively in their version valid at the time of conclusion of the contract ,
1.2. Deviating conditions of the customer or third parties are not recognized, unless Matplus expressly agrees to their validity in writing.
1.3. Customer i. s. d. Terms and conditions are entrepreneurs.
2.1. Software is the software product defined in the service description of the offer, excluding any open-source components that are donated and donated, and associated documentation.
2.3. Entrepreneur i. P. D. Terms and conditions are natural or legal persons or legal partnerships that act in the exercise of a commercial or independent professional activity.
3. Permanent paid software transfer / purchase
The subject of this contract is the permanent transfer of software (both third-party and Matplus developed software) to the customer as well as the granting of corresponding rights of use. Matplus only provides the customer with a copy of the acquired software for its own use and along with documentation via data carrier or download. Unless otherwise agreed, the installation of the software supplied by Matplus is not part of the contract.
3.2. Rights of Use and Reproduction v. proprietary software
3.2.1. As far as third-party software is concerned, the respective license conditions of the manufacturer apply.
3.2.2. As far as software developed by Matplus is concerned, Matplus grants the customer, under the condition precedent of the full payment of the agreed fee, a simple, non-exclusive, unlimited, irrevocable right to use Matplus’s software and software associated documentation for your own use. Unless otherwise agreed, the acquisition of the software entitles the user to install and operate on only one device at the same time and within a network. Incidentally, the number of licenses and the type and extent of use are determined by the content of the order. If the customer purchases a multi-user version, he may use the agreed number of copies on different computers on the same network. Use is understood to mean the storage of the software in a temporary storage medium (RAM) as well as in a permanent storage (in particular fixed, removable disk, USB stick or CD-ROM).
3.2.3. The customer is entitled to make a backup copy of the data carrier provided to him if this is necessary to secure future use. The customer must affix the note “Backup copy” as well as a copyright notice visibly on the created backup copy.
3.2.4. Further duplication, which includes the output of the program code on a printer as well as the photocopying of the entire manual or essential parts thereof, may not be made by the customer.
3.3. Multiple uses / network deployment
The customer may use the software on any hardware available to him. However, if the customer changes the hardware, he must erase the software from the mass storage of the previously used hardware. A simultaneous storing, keeping or use on more than one hardware is not allowed, unless otherwise agreed. A simultaneous multiple use within a network is also inadmissible and requires a separate remuneration.
3.4. Retention of title
3.4.1. Matplus retains title to the software delivered to the customer until full payment of all existing or future claims arising from this contract at the time of delivery; if paying by check or bill of exchange until their redemption.
3.4.2. In case of culpable payment arrears of the customer, the assertion of the retention of title by Matplus shall not be considered a withdrawal from the contract, unless Matplus informs the user expressly.
3.4.3. Upon assertion of the retention of title by Matplus, the customer’s right to reuse the software ceases. All of the
Customer made program copies must be returned or demonstrably deleted.
4. Permanent gratuitous leasing v. Matplus developed software (freeware)
4.1. The subject matter is the free, permanent transfer of software developed by Matplus to the customer in the sense of a donation.
4.2. In the event of the permanent and gratuitous transfer of software to the customer, Matplus grants the customer, without appropriate remuneration for the intended use, a simple, non-exclusive, unlimited, unlimited, irrevocable right to use the software provided by Matplus for his own use. Use is understood to mean storage of the software in a temporary storage medium (RAM) as well as in a permanent storage (hard disk, USB stick, etc.).
4.3. The special provisions of sections 3.2.2., 3.2.3., 3.3., And 3.4. Apply accordingly.
5. Software development
5.1.1. Subject matter in the software development is a software to be developed by Matplus according to customer specifications and to be provided to the customer, including the corresponding user instructions and the granting of corresponding rights of use. The scope of performance owed as well as further specification are to be described in detail by the customer in a specification sheet to be drawn up by him. The software is created by Matplus according to the state-of-the-art requirements of science and technology as described in the specifications. Matplus delivers the software as an executable program on a suitable medium to the customer. The installation is carried out by the customer.
5.1.2. The deadlines for the delivery of the work owed are specified in the specifications. As soon as Matplus recognizes that an execution period can not be met, Matplus must notify the customer in writing without delay, stating the reasons and the expected delay.
5.2. Duty to cooperate with the customer The customer must provide Matplus with the information, documents and other work equipment (pre-installed IT components, individual customer software) required to carry out the services free of charge and in good time. The customer shall ensure that Matplus may have qualified employees for binding information.
Matplus supplies the customer with a program copy in encoded and ready-to-use form, as well as documentation, in order to carry out the functional test of the created software specified in the specifications. If the functional test shows that the performance of Matplus corresponds to the specifications in the specifications, the customer immediately declares acceptance of the work in writing. If the customer does not declare acceptance within a reasonable time, Matplus may set a reasonable deadline for the declaration. The service shall be deemed to have been accepted at the end of the period if the customer neither declares the acceptance nor gives the reasons for an extension of the functional test and has not set a grace period himself. At the beginning of the deadline, Matplus will point out to the customer the intended meaning of his behavior.
5.4. use rights
Unless otherwise agreed, Matplus grants the customer, subject to acceptance and full compensation for the duration of the statutory copyright, the simple, non-exclusive, unlimited, unlimited, irrevocable right to use the software created by Matplus and the associated documentation for its own use. The special provisions of sections 3.2.2., 3.2.3., 3.3., And 3.4. Apply accordingly.
5.5. Infringement of property rights of third parties
To the extent that Matplus Software designs to Customer’s specifications and instructions, Customer indemnifies Matplus against all claims and costs arising out of infringement of third party intellectual property rights arising from Customer’s designs and instructions. The customer pays an appropriate legal process fee on request from Matplus.
6. Maintenance and other services
6.1. As far as Matplus accepts paid maintenance services, the maintenance includes those expressly stated in the order confirmation
Services. It consists of at least the provision of a hotline, the automatic sending of medium and large updates, the
Remote diagnostics and maintenance, as well as an Internet service via which the provision of interim releases takes place.
6.2. The maintenance only applies to software manufactured by Matplus. If the customer sells Matplus software, Matplus is no longer required to maintain or maintain it. Matplus will reimburse the Customer for the remainder of the remaining term only to the extent that Matplus spares or otherwise gains by otherwise using the Services.
6.3. Duration, scope and remuneration result from the closed individual maintenance contracts.
6.4. In the event of late payment by Matplus, Matplus may defer further maintenance or care until full payment has been made and demand payment in advance.
6.5. Matplus carries out further services for the customer, insofar as these are agreed in writing. The customer pays for further services according to the respectively valid price list of Matplus for services.
7. Software rental
7.1. The subject of the contract is the time-limited transfer of software by Matplus to the customer.
7.2. Performance owed, duration of contract and remuneration result from the individual agreements concluded.
7.3. In the context of software rental, Matplus grants the customer the simple right, unlimited in terms of space and content for the duration of the contract, to use the software as intended.
7.4. The customer may not sell the software, including the user manual and other accompanying material, to third parties, nor grant it for a limited period of time, in particular not rent or lend it.
7.5. Any correction of defects will be made at the option of Matplus by free repair or replacement.
7.6. The right of termination of the customer for non-granting of use according to § 543 paragraph 2 sentence 1 no. 1 BGB is excluded unless the repair or replacement is to be regarded as failed.
7.7. The strict liability of Matplus as landlord for already existing at the conclusion of the contract errors according to § 536 a paragraph 1 BGB is expressly excluded.
8. General conditions
8.1. Involvement of third parties
Matplus is entitled to use the help of third parties and to transfer rights and obligations in this regard to the performance of the contract to third parties as vicarious agents.
8.2. terms of payment
8.2.1. The valid price list of Matplus applies. Prices are in Euro plus the costs incurred for postage, packaging, insurance, travel and the applicable value added tax.
8.2.2. Unless otherwise agreed, payments shall be made at the latest with the delivery / provision of the software, or with notification of the
Access data to the customer due and payable within 14 days from the date of invoicing.
8.3. Force majeure
Is Matplus on the timely execution of its deliveries and services by force majeure, strike, malfunction, lockout,
Fire, natural disasters, transportation obstructions, regulatory action or delays in delivery essential rohund
Auxiliaries, prevented by Matplus or the suppliers, the delivery time is extended accordingly.
8.4. Use of open source software
8.4.1. Matplus is – provided that no deviating regulations are made entitled to use different free software components (so-called Open Source Software) within the framework of the service provision. The transfer of open source components by Matplus is donated and free of charge.
8.4.3. The customer is obligated to observe the license conditions of the respective owners and – in case of delivery of the software together with open source software components to third parties – to stop them in compliance with the respective license conditions.
8.5. Labeling / copyright notices
Copyright notices, serial numbers as well as other features serving the program identification may not be removed or changed by the software. The same applies to a suppression of the screen display corresponding features.
8.6.1. The software provided by Matplus essentially corresponds to the product description. Product descriptions are not guaranteed unless otherwise agreed in writing. For update, upgrade and new version deliveries, the warranty claims are limited to the updates of the update, upgrade or new version delivery compared to the previous version.
8.6.2. Obvious defects must be reported in writing to Matplus within a period of one week from receipt of the goods; otherwise the assertion of the warranty claim is excluded. Deadline is sufficient for the timely dispatch. In this case, the customer bears the full burden of proof for all claims, in particular for the defect itself, for the time of the discovery of the defect and for the timeliness of the complaint.
8.6.3. Defects shall be notified in writing by a comprehensible description of the error symptoms, as far as possible, evidenced by written records, hard copies or other documents illustrating the defects. The complaint should allow the reproduction of the error.
8.6.4. The warranty period is one year from date of delivery. The one-year warranty period does not apply if and insofar as a case of clause 8.7.1 or 8.7.2. is present.
The claims of the customer for damages or reimbursement of futile expenditure are based on this clause regardless of the legal nature of the claim:
8.7.1. Matplus is liable without limitation for damages or reimbursement of wasted expenses
– in case of intent or gross negligence
– for injury to life, limb or health,
– in accordance with the provisions of the Product Liability Act as well as
– to the extent of a guarantee assumed by Matplus
– at malice of Matplus.
8.7.2. In the event of a slightly negligent breach of an obligation essential to the achievement of the purpose of the contract (cardinal obligation), the liability of Matplus shall be limited to the amount of damage foreseeable and typical according to the nature of the business in question, up to a maximum of five times that for the remuneration paid.
8.7.3. Matplus is liable for the loss of data only up to the amount that would have been incurred in proper and regular backup of the data for their recovery.
8.7.4. A further liability of Matplus does not exist. In particular, there is no liability of Matplus for initial defects, unless the conditions of clauses 8.7.1 or 8.7.2. available.
8.7.5. The above limitation of liability also applies to the personal liability of employees, agents and organs of Matplus.
8.8. source publication
Unless otherwise agreed, there is no claim of the customer to release the source code.
8.9. Privacy / Data Security
Matplus collects, processes and uses personal data of customers only for the purpose of the proper execution of the contract within the framework of the applicable data protection laws. Both parties comply with the requirements of applicable data protection laws and regulations. This applies in particular as far as the collection, processing, modification, transmission and deletion of data or databases is concerned. The contracting parties commit employees and agents who receive access to data accordingly.
8.10.1. The customer may only offset with undisputed or legally established claims.
8.10.2. The exercise of a right of retention by the customer, which is not based on a right under this contract, is excluded.
8.10.3. The customer will assign his rights under this contract to third parties only with the prior consent of Matplus; § 354 a HGB remains unaffected.
8.10.4. The software may be subject to (re-) export restrictions, eg. The United States of America or the EU. The customer has this
Provisions on resale or other export.
11.8. final provisions
8.11.1. Changes and additions to the contract must be made in writing. This also applies to the amendment or cancellation of this clause. Electronic documents in text form do not fulfill the written form requirement.
8.11.2. German law applies, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).
8.11.3. The place of performance and exclusive place of jurisdiction is Wuppertal, provided that each party is a merchant or a legal entity under public law.
8.11.4. Should individual provisions of this contract be ineffective, this does not affect the validity of the remaining provisions.
Last updated 09.10.2018