AGB Software - Plan-Soft Interior Design Ltd. - Business Software for Shopfitting

I. Scope

The following terms and conditions of Plan-Soft Einrichtungsplanung GmbH („PLAN-SOFT“) for the provision of software shall apply to all contractual relationships with customers in connection with the provision of software programs and shall be deemed an integral part of the contract, unless otherwise agreed in writing in an individual agreement between PLAN-SOFT and the customer. The General Terms and Conditions for Software supplement the General Terms and Conditions – General, which are an integral part of the contract alongside the General Terms and Conditions for Software.

II. PLAN-SOFT Services

(1) PLAN-SOFT provides the customer with the software designated in the offer, order confirmation, or contract in machine-readable object code. The software is licensed, not sold. The license files will be provided via email to an email address to be designated by the customer. The customer will acknowledge receipt of the software via email. The costs and risks of transferring the license file are borne by the customer.
(2) The user manual or other software documentation describes in detail the functions and performance that the software has when used in accordance with the contract („performance description“). The respective performance description is solely authoritative with regard to the agreed quality of the software and its intended use. Public statements, promotions, or advertising do not constitute a quality specification of the software programs.
(3) PLAN-SOFT's services in connection with the software license do not include the delivery of new program versions, installation, customer-specific adaptations, training, or other services beyond the software license. In particular, PLAN-SOFT owes no services that enable connection and data exchange with other software, even if PLAN-SOFT's software contains interfaces. The establishment of this connection, as well as the aforementioned services, will only be provided by PLAN-SOFT for additional remuneration within the scope of a separate agreement to be concluded with the customer.

III. Customer's Duty to Cooperate

1) The hardware and software environment (system environment) required for proper operation is bindingly defined in the order confirmation from PLAN-SOFT or in the respective software documentation. It is the customer's responsibility to ensure a suitable system environment in a timely manner. If this is lacking and the supplied software cannot be used for this reason, the customer alone bears the responsibility.
(2) Before commissioning the software, the customer is obligated to test all functions of the software within the customer's system environment. Likewise, upon handover, the customer must inspect the data carriers, user manuals, and other documentation for defects. If the customer identifies any defects, these must be reported to PLAN-SOFT immediately in writing, by email, or by fax.
(3) The customer is obligated to prevent unauthorized access to the software. The customer will store the delivered original data carriers in a location secured against unauthorized access.
(4) The aforementioned cooperation obligations are essential contractual obligations.

IV. Grant of Rights (License)

PLAN-SOFT grants the customer the perpetual, non-exclusive, and non-transferable right to use the software in accordance with the terms and conditions of these T&Cs. This right of use is subject to the full payment of the software.
(2) The customer is entitled to install and use the software in the quantity specified in the offer, order confirmation, or software license agreement.
authorized by the licenses. The customer may use the software on any hardware available to them. If they change the hardware, they must uninstall the software from
erase the hardware used to date. Simultaneous storage, stocking, or use of more licenses than agreed upon in the contract is not permitted.
(3) The customer may duplicate the software to the extent that any such duplication is necessary for the lawful use of the software. This includes installing the software from the original data carrier onto the mass storage of the hardware used, as well as loading the software into main memory. In addition, the customer is authorized to create a backup copy, which must be labeled as such. It may be used exclusively for backup purposes and may not be transferred to third parties. Simultaneous use of the original and the backup copy is not permitted. No further copies may be created. This also includes duplication by outputting the program code. Only one printout or copy may be made of the user manual or other documentation. Any further duplication of the software or of the user manual or other documentation by the customer is only permissible with the prior written consent of PLAN-SOFT.
(4) The customer is entitled to transfer the software to a third party a single time in its entirety. A transfer may only take place in such a way that the customer transfers the original data carrier and hands over or deletes all copies of the software that they may have made to the third party, obliges the third party in writing to comply with these GTC, and the customer informs PLAN-SOFT of this transfer as well as the written consent of the designated third party.
(5) The foregoing regulation also applies if the customer only makes the software available to the third party temporarily. However, the customer is not permitted to rent the software or parts thereof.

V. Limitations on the Right of Use, Overuse

(1) The customer is not authorized to make any modifications to the software code, even for the purpose of rectifying defects. PLAN-SOFT enables the rectification of defects even after the expiry of the limitation period for claims arising from defects, within the scope of a program maintenance agreement to be concluded.
(2) Reverse compilation of the provided program code into other code forms (decompilation) and other types of reverse engineering of the various stages of software development are not permitted. The right to make translations of code forms to ensure the interoperability of an independently created computer program remains unaffected, provided that the conditions specified in Section 69e of the Copyright Act (UrhG) are met.
(3) Information obtained in actions under Section 69e (1) of the Copyright Act may not be used or passed on to third parties for any purposes other than those specified therein and within their scope. It is also impermissible to use the information for the production or marketing of a program with substantially similar expression or for any other actions that infringe copyright.
The customer is prohibited from removing, altering, or obscuring any proprietary notices, copyright notices, stickers, labels, or trademarks of PLAN-SOFT that are contained in the software and in the user manual or other documentation, if any.
(5) Commercial use of the software by way of so-called „Application Service Providing (ASP)“ is not permitted. Furthermore, any use of the software beyond the scope defined herein, in particular, the simultaneous use of more licenses than contractually agreed upon, constitutes a breach of contract with regard to the software. The customer is obligated to inform PLAN-SOFT thereof immediately. For the period of unauthorized overuse, the customer agrees to pay compensation for the overuse according to PLAN-SOFT's current prices. Amortization over four years on a straight-line basis will be used to calculate the compensation. If the customer fails to report the overuse, a contractual penalty equal to five times the price of the used capacity, according to PLAN-SOFT's price list, will become due.

VI. Use of Technical Safeguards

PLAN-SOFT expressly reserves the right to deliver the software with a technical protection mechanism (copy protection), e.g. in the form of a dongle or software key.
(2) If PLAN-SOFT supplies the software with a dongle and the dongle malfunctions, the customer may request a replacement dongle from PLAN-SOFT by returning the defective dongle. Within the statute of limitations for claims for defects in the software pursuant to Section VII. (2) below, the replacement will be provided free of charge. After the expiration of the limitation period for claims for defects, the customer must pay the price for the replacement dongle that was in effect at the time of delivery. In the event of theft or other loss of the dongle, the customer has no right to a replacement.
(3) Bypassing or removing technical protection measures infringes PLAN-SOFT's rights and may be punishable by law.

VII. Liability for Defects

(1) The customer's rights in the event of defects in the software provided shall be governed by statutory provisions, unless otherwise stipulated below.
(2) The statute of limitations for claims due to defects in the software shall be one year. The one-year statute of limitations shall begin upon the handover of the software to the
Customers. However, the statutory limitation period shall apply if PLAN-SOFT has fraudulently concealed a defect or has assumed a guarantee for the quality of the software. The guarantee for quality is only effective if it is in writing.
(3) PLAN-SOFT warrants that the software, when used in accordance with the contract, conforms to its performance description and is free from defects that materially impair its suitability for the contractually agreed use. Insignificant deviations from the performance description do not constitute a defect. The customer is aware that, according to the current state of the art, software of this complex nature cannot be developed absolutely free of errors.
The customer is obliged to notify PLAN-SOFT of any defects in writing, by email or fax, immediately upon discovery. The notification must specify and describe how the defect manifests itself, its effects, and the circumstances under which it occurs. Claims for defects only exist if the reported defect is reproducible or can be demonstrated by machine-generated output.
PLAN-SOFT will rectify any defect properly reported by the customer through subsequent performance, i.e., by repair or replacement.
PLAN-SOFT initially has the right to choose how a defect is remedied through supplementary performance. PLAN-SOFT's right to refuse the chosen method of supplementary performance under the statutory conditions remains unaffected. To the extent that this is reasonable for the customer, PLAN-SOFT is entitled to remedy the defect by providing the customer with a new version of the software (e.g., „update“, „maintenance release/patch“) which no longer contains the alleged defect or eliminates it, or to develop a workaround.
(6) If the subsequent performance fails within a reasonable period, the customer shall set PLAN-SOFT a reasonable additional period for renewed subsequent performance, provided that setting a deadline is reasonable for the customer and PLAN-SOFT has not definitively refused subsequent performance. If these conditions are met, the customer may withdraw from the contract or reduce the purchase price after the second subsequent performance fails and, if applicable, claim damages instead of performance or reimbursement of futile expenses if PLAN-SOFT is at fault. After the unsuccessful expiration of the last additional period, the customer must declare within a reasonable period whether they still demand subsequent performance or whether they are asserting their aforementioned rights. A right of withdrawal does not exist in the case of an insignificant defect. Upon declaration of withdrawal or reduction, the customer's claim for delivery of non-defective software shall be extinguished.
(7) PLAN-SOFT shall not be liable for defects if defects in the software have occurred after changes to the operating or usage conditions, after changes to the system environment, after installation and operating errors, insofar as these do not result from defects in the user manual, after interventions in the software such as modifications, adaptations, connection with other programs and/or after use contrary to the contract, unless the customer proves that the defect already existed at the time of handover of the software or is not causally related to the aforementioned events.
PLAN-SOFT is not liable for the accuracy of customer or third-party data contained on the software and any resulting defects.
If it turns out that a defect reported by the customer does not actually exist or is not due to the software, the customer shall pay PLAN-SOFT for the effort incurred in analyzing and otherwise processing it, calculated according to PLAN-SOFT's current price list.
(10) In the event of a justified withdrawal, PLAN-SOFT is entitled to demand reasonable compensation for the benefits the customer has derived from the use of the software in the past until the rescission. This usage compensation will be calculated based on a total usage period of four years for the software, with a reasonable deduction for the impairments of the software due to the defect that led to the withdrawal.

General Terms and Conditions for Software Licensing