General Terms and Conditions of Rental - Plan-Soft Interior Design GmbH

I. Scope

The following terms and conditions of Plan-Soft Einrichtungsplanung GmbH („PLAN-SOFT“) for the rental of software shall apply to all contractual relationships with customers in connection with the rental of software and shall be 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 Rental supplement the General Terms and Conditions, which are an integral part of the contract alongside the General Terms and Conditions for Rental.

II. PLAN-SOFT Services

(1) PLAN-SOFT rents the software designated in the offer or contract to the customer. The source code is not part of the contract and will not be delivered.
(2) The user manual and other software documentation describe in detail which functions and services the software provides when used in accordance with the contract. The respective description is solely decisive for the agreed quality of the software and its intended use. Public statements, claims or advertisements do not constitute a description of the quality of the software programs.
(3) PLAN-SOFT's services in connection with the rental of the contract software do not include software installation or uninstallation at the end of the rental period, customer-specific customizations, training, or other services beyond the rental of the contract software. In particular, PLAN-SOFT owes no services that enable connection and data exchange with other software, even if interfaces are included in PLAN-SOFT's software. Both the establishment of this connection and the aforementioned services are provided by PLAN-SOFT only for additional remuneration within the scope of a separate agreement to be concluded with the customer.

III. Care Services

(1) PLAN-SOFT assumes responsibility for the maintenance of the software specified in the offer, order confirmation, or software rental agreement. Unless otherwise agreed, PLAN-SOFT provides the following maintenance services for this software:

Delivery of the current program version marketed by PLAN-SOFT (updates);
individual elimination of software defects.

(2) The scope of the aforementioned services is described in detail below. PLAN-SOFT shall not be obligated to provide any services not listed below.
(3) PLAN-SOFT only provides software maintenance services for software that is being used by the customer in the current program version, meaning the customer is obligated to install the new program version supplied by PLAN-SOFT within a reasonable timeframe. If the customer uses a program version that is not current, PLAN-SOFT will perform a review at the customer's site for a separate fee and update the software for a separate fee, which depends on the number of program versions not updated by the customer. If it is not feasible to perform this update with reasonable effort, PLAN-SOFT is not obligated to provide maintenance services for the existing software.
(4) PLAN-SOFT will provide maintenance services only if the customer has installed the software on a system environment approved by PLAN-SOFT for the respective software.
(5) The obligation of PLAN-SOFT to provide maintenance further requires that the software is installed on an operating system that is still generally maintained by the operating system manufacturer at the time the defect is reported to PLAN-SOFT. Individual maintenance agreements between the operating system manufacturer and the customer that extend beyond the general maintenance period shall be disregarded. If this is not the case and PLAN-SOFT rectifies the defect nevertheless, the customer shall bear any resulting.

IV. Delivery of current program versions (Updates)

(1) PLAN-SOFT shall provide the customer with all new program versions (updates) of the software to be maintained, provided they are currently marketed and available from PLAN-SOFT. This does not apply to extensions of the software to be maintained that PLAN-SOFT offers and markets separately as a new and independent product, nor to new developments of the software with the same or similar functions (upgrades).
The new program version will be delivered as stipulated in the program rental agreement.

V. Elimination of Software Defects

PLAN-SOFT will remedy any defects in the software that are reported by the customer or otherwise become known to PLAN-SOFT within a reasonable timeframe.
The prerequisite for the performance is that the affected software is installed by the customer in the currently current version issued or released by PLAN-SOFT.
(3) PLAN-SOFT shall remedy a defect through appropriate measures of its choice. On-site defect rectification at the customer's premises shall only be carried out if and to the extent that no other measure promises success.
PLAN-SOFT is not liable for the accuracy of third-party data on the software or any resulting errors.
(5) If a defect reported by the customer turns out not to exist or not to be attributable to the software, the customer shall pay PLAN-SOFT for the effort incurred in analyzing and otherwise processing the matter, based on the calculation of these services.

VI. Customer's Duty to Cooperate

(1) The hardware and software environment required for proper operation (system environment) 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 delivered software cannot be used for this reason, the customer alone shall be responsible.
(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 aforementioned cooperation obligations are essential contractual obligations.
(4) The customer is obliged to grant PLAN-SOFT remote access to those data processing systems on which the contract software is installed and used. The customer is responsible for the setup, maintenance, and activation of the online access required for remote access and bears the connection costs.
(5) The defect rectification or maintenance services provided by PLAN-SOFT always refer to the current version of the software supplied by PLAN-SOFT. The customer is therefore obliged to install the currently supplied software version within a reasonable period. If this is not the case and PLAN-SOFT rectifies the defect nonetheless, the customer shall bear the resulting additional costs in addition to paying the rent.
The customer shall appoint a responsible person and, if applicable, a representative, who possess all decision-making authority and powers of attorney necessary for the purpose of executing the contract.
(7) To the extent that support services are provided through data transmission, the customer shall provide and maintain suitable devices and programs at their own expense.
(8) To the extent and scope that an on-site deployment at the customer's premises proves indispensable, the customer shall grant PLAN-SOFT and its employees access to the premises, machinery, and software at least during normal business hours, preferably by prior arrangement, and shall provide the necessary computing time.
(9) If it is unclear which system component is causing the malfunction, the customer will first carry out an analysis of the software environment together with PLAN-SOFT and, if necessary, engage third-party companies with the required expertise regarding the software environment at their own expense.
(10) During the work, the customer shall continuously provide the contractor with a competent employee who can provide information about the customer's overall system and the use of the software, as well as about the reported defect, and can perform test runs.
To the extent necessary for the creation and/or use of a new program version of the rented software, the customer shall provide new versions of the operating system, database, or other third-party tools required for the application of the software, ready for operation, at their own expense.
(12) The customer is obligated to prevent unauthorized access to the software. The customer shall keep the original data carriers provided in a location secured against unauthorized access.
The aforementioned obligations to cooperate are essential contractual obligations. If the customer breaches their obligations to cooperate, PLAN-SOFT is not obligated to perform. In the event of repeated or serious breaches of contract, PLAN-SOFT is entitled to terminate the program rental agreement with a notice period of 2 weeks to the end of the month.

VII. Grant of Rights (License)

(1) PLAN-SOFT grants the customer the non-exclusive and non-transferable right, limited in time to the duration of the software rental agreement, to use the software in accordance with the provisions of these General Terms and Conditions. This right of use is subject to the timely and full payment of the rent.
(2) The customer is entitled to install and use the software in the number of licenses specified in the offer, order confirmation, or software rental agreement. The customer may use the software on any hardware available to them. If they change hardware, they must delete the software from the previously used hardware. Simultaneous storage, keeping in stock, or use of more licenses than agreed upon in the contract is not permitted.
(3) The customer is permitted to duplicate the contractual software to the extent that each 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 the main memory. In addition, the customer is authorized to create a backup copy, which must be marked as such. It may only be used for backup purposes and may not be disclosed to third parties. Simultaneous use of the original and the backup copy is not permitted. No further duplications may be made. This also includes duplications by outputting the source code. Only one printout or copy of the user manual or other documentation is permitted. Any further duplication of the software as well as the user manual or other documentation by the customer is only permissible with prior written consent from PLAN-SOFT.
(4) The customer is not permitted to pass on, sell, or rent the software to third parties, nor to grant sublicenses.

VIII. Limitations on Use, Overuse

(1) The customer is not authorized to make any changes to the software code, not even for the purpose of error correction. This does not apply to changes that are necessary for the correction of defects, provided that PLAN-SOFT is in default of correcting the defect, refuses to correct the defect, or is unable to correct the defect due to the opening of insolvency proceedings.
(2) Reverse compilation of the provided source code into other code forms (decompilation) as well as other forms of reverse engineering of the various stages of software production are not permitted. The right to decompile to achieve interoperability with independently created computer programs remains unaffected, provided that the conditions specified in Section 69e of the Copyright Act (UrhG) are met.
(3) Information obtained through actions under Section 69e(2) of the Copyright Act may not be used for purposes other than those specified therein or within the scope thereof, nor may it be disclosed to third parties. It is also impermissible to use the information for the creation or marketing of a program with a substantially similar form of 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 through „Application Service Providing (ASP)“ is not permitted. Furthermore, any use of the contractual software beyond the scope defined herein, particularly concurrent use of more than the contractually agreed-upon licenses, constitutes a breach of contract. The Customer is obligated to inform PLAN-SOFT thereof immediately. For the period of unauthorized overuse, the Customer undertakes to pay compensation for the overuse according to PLAN-SOFT's applicable prices. Depreciation will be calculated on a straight-line basis over four years for the compensation. If the Customer fails to report the overuse, a contractual penalty equal to five times the price of the usage utilized shall become due.

IX. Use of Technical Protection Measures

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 this dongle malfunctions, the customer can request a replacement dongle from PLAN-SOFT by sending back the defective dongle. In the event of theft or other loss of the dongle, the customer is not entitled to a replacement.
Circumventing or removing technical protection measures violates the rights of PLAN-SOFT and may be punishable by law.

X. 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) 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 acknowledges that, according to the current state of technology, software of this complex nature cannot be developed absolutely free of errors.
(3) The customer is obligated to inform PLAN-SOFT of any defects immediately in writing, by email, or by fax, and to specify and describe how the defect manifests itself, what its effects are, and under what circumstances it occurs. Claims for defects only exist if the reported defect is reproducible or can be demonstrated by machine-generated output.
(4) PLAN-SOFT shall remedy any defect properly reported by the customer through subsequent performance, i.e., through repair or replacement. The choice of how a defect is remedied through subsequent performance shall initially lie with PLAN-SOFT. PLAN-SOFT's right to refuse the chosen method of subsequent performance under the statutory conditions shall remain unaffected. To the extent that this is reasonable for the customer, PLAN-SOFT shall be entitled to provide the customer with a new version of the software (e.g., „update,“ „maintenance release/patch“) that no longer contains or remedies the alleged defect, or to develop a workaround solution for defect remediation.
(5) The tenant's right to terminate the lease due to non-provision of use pursuant to § 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) is excluded as long as the free remedy of repair or replacement delivery is not considered to have failed.
(6) 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 operational 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 events mentioned above.
(7) PLAN-SOFT is not liable for the accuracy of the customer's or third parties' data on the software and for any resulting defects.
(8) PLAN-SOFT's strict liability for defects existing at the time of contract conclusion pursuant to § 536 (1) of the German Civil Code (BGB) is expressly excluded.
(9) The customer may not enforce a rent reduction by deducting it from the agreed rent. Claims for unjust enrichment and damages remain unaffected.
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, after calculation of these services.

XI. Termination

The term of the program rental agreement is governed by the agreements made therein.
(2) The termination must be in writing.
(3) The right to extraordinary termination for good cause remains unaffected. PLAN-SOFT has the right to extraordinary termination if the customer is in default of payment of the rent for more than 2 months.
(4) Upon termination of the contract, all furnished items, as well as other materials and documents provided within the scope of the rental agreement, shall be returned by the Customer to PLAN-SOFT. The Customer shall bear the costs and transportation risk for the return of the contractual items to PLAN-SOFT. The Customer shall ensure that the furnished items are not in a worse condition than corresponds to the contractually agreed use of the rented item; this applies during the rental period as well as at the time of contract termination.
(5) The customer shall immediately and completely delete the software from the hardware on which it is installed or stored upon termination of the contract.
The customer is expressly informed that they may no longer use the software after the termination of the contract and that in the event of use, they will infringe on PLAN-SOFT's copyright.

XII. Rent, Payment Terms

The rental price for the use of the software is determined by the offer, the order confirmation, or the software rental agreement.
Unless otherwise agreed, the rent is due on the third day of each month for the current month.
(3) The rent covers the remuneration for the provision of the software as well as for its maintenance, repair, and upkeep. In addition to the rent, the customer shall reimburse PLAN-SOFT for the costs of agreed on-site services (e.g., travel expenses, accommodation costs).

Terms and Conditions for Software Rental