Our GENERAL TERMS AND CONDITIONS apply exclusively. Insofar as these do not contain any provisions, the law shall apply. We do not accept any terms and conditions of the contractual partner that are contrary to or deviate from our GENERAL TERMS AND CONDITIONSor deviate from the law to our disadvantage, unless we have expressly agreed to their validity in writing. Our GENERAL TERMS AND CONDITIONS shall also apply if our contractual services or deliveries are rendered without reservation in the knowledge that the contractual partner’s terms and conditions conflict with or deviate from our GENERAL TERMS AND CONDITIONS or deviate from the law to our disadvantage.
Our GENERAL TERMS AND CONDITIONS shall also apply to all future transactions with the contractual partner.
Our GENERAL TERMS AND CONDITIONS shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
Subject Matter of the Contract, Conclusion of the Contract, Offers and Cost Estimates, Subsequent Changes of the Contractual Content, Reservation of Self-Delivery
The subject matter of the Software Rental Agreement is the temporary provision of the computer program “Optimus Software USt-ID Prüfer Excel Add in" and Optimus Software Online USt-ID Prüfer (hereinafter referred to as “Software") in return for payment, together with the granting of rights of use thereto.
Our offers and cost estimates, including the offer on our website, are – unless expressly designated as firm – subject to change and non-binding.
Conclusion of contract:
In the event of the conclusion of a contract through our web store, the following shall apply: By clicking on the “Order" field, the contractual partner places a binding order for the licenses contained in the shopping cart (displayed above – summary). We will send the contractual partner a confirmation of receipt of the order immediately after receipt. This confirmation does not imply acceptance of the order.
In case of conclusion of the contract by order and confirmation the following applies: Orders may also be placed in text form. The contract partner is bound to order for the duration of 3 working days.
The rental contract with the contractual partner is only concluded by our order confirmation or also by the delivery of the software on our part.
We reserve all rights to any offer and contract documents transmitted to us insofar as they are not granted to the contractual partner in accordance with the meaning and purpose of the contract or on the basis of an express agreement. Offer documents shall be returned to us immediately upon our request if the order is not placed with us. The contractual partner may not assert a right of retention in this respect.
Offer and contract documents belonging to us in accordance with Section 2.4 may not be used, reproduced, passed on, sold, pledged or made available to third parties – except for agreed or contractual purposes; in particular, no products may be manufactured for third parties with them.
We reserve the right to make changes to the software after conclusion of the contract in the course of continuous software development and improvement, provided that this is reasonable for the contractual partner.
If errors occur on our part through no fault of our own during the conclusion of the contract, for example due to transmission errors, misunderstandings, etc., compensation for damages on our part is excluded in accordance with § 122 BGB (German Civil Code).
Prices/ Rent, Terms of Payment, Reservation of Right to Subsequent Performance
Subject to a separate agreement, our prices are exclusive of postage, shipping, insurance, and installation or configuration services. The contractual partner is obligated to pay the agreed remuneration plus the applicable value-added tax for the provision of the software. If the software is only made available for a shorter period than the term of the contract, the rent shall be reduced pro-rata temporis.
The rent owed by the contractual partner shall be paid in advance and shall be due for payment without deduction immediately upon receipt of the invoice. The contracting party shall be in default without any further declaration on our part 30 days after the due date, unless he has not paid and unless a payment date has been determined by the calendar. In case of monthly payment of the rent, its payment is due on the 3rd working day of each month.
In all other respects, the statutory provisions shall apply to the consequences of default in payment.
The contractual partner shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or acknowledged. The contractual partner shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
Delivery and installation of the software
Unless otherwise agreed, the software shall be delivered to the contractual partner at the contractual partner’s discretion either on a data carrier or we shall make the software available to the contractual partner for download or another medium to be agreed. The access information required for the use of the software (in particular license key or log-in data) shall be provided to the contractual partner separately in text form (e-mail).
In addition to the software, we shall provide the contractual partner with installation instructions, procedural documentation and a user manual (“Documentation").
However, we do not owe any installation and configuration of the software on the systems of the contractual partner. The contractual partner shall be solely responsible for the installation and – if necessary – configuration of the software.
Contractual condition, maintenance, modification, adaptation of the software
The contractual quality of the software shall be determined in accordance with the LICENSE CONDITIONS, which conclusively define the properties of the software. In case of doubt, the descriptions of the properties of our software do not constitute guarantees or warranties. Declarations on our part in connection with this contract do not, in case of doubt, contain any guarantees or assurances in the sense of an intensification of liability or assumption of a special obligation to indemnify. In case of doubt, only express written declarations on our part with regard to the provision of guarantees and assurances shall be authoritative.
We are obliged to maintain the contractually agreed condition of the Software during the term of the contract (“Maintenance"). In order to fulfill our obligation to maintain the Software, we shall carry out the maintenance and servicing measures required by the state of the art.
No warranty shall be assumed for damage due to the following reasons: unsuitable or improper use or operation, unsuitable environmental conditions or system requirements, faulty installation, unsuitable operating materials, chemical, electrochemical or electrical influences (insofar as we are not responsible for them), improper modifications or repair work carried out by the contractual partner or third parties without our prior approval.
We shall only be obliged to modify or adapt the software after conclusion of the contract if such modification or adaptation is necessary for the maintenance of the software in accordance with the state of the art. Otherwise, we shall only be obliged to modify, adapt or further develop the software if we separately agree this with the contractual partner. In particular, we shall not be obliged to further develop the software without such a separate agreement. Section 2.6 of these GENERAL TERMS AND CONDITIONS shall remain unaffected.
Granting of rights
Upon full payment of the rent in accordance with the agreement concluded with us, we shall grant the contractual partner the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of the agreement and in location to the territory of the Federal Republic of Germany, to use the software to the extent granted by the rental agreement concluded with us. Unless expressly agreed otherwise, the software may only be used by a maximum number of natural persons at the same time that corresponds to the license model provided. The contractual use of the software includes, in addition to the download and installation, also the loading into the working memory, the display and the running of the provided software.
Insofar as this is necessary for use in accordance with the contract, the contractual partner shall be entitled to reproduce the software supplied. In particular, the loading of the software into the main memory shall be deemed to be duplication required for use in accordance with the contract. In addition, the contractual partner shall be entitled to make a duplication for backup purposes (“backup copy"). The contractual partner shall be obligated to mark this backup copy as such and to affix a copyright notice concerning us as the author.
If the software is made available to the contractual partner as a download, the creation of a backup copy is not permitted insofar as it is possible to download the software again from our server.
Apart from that, the contractual partner is not entitled to duplicate or decompile the software, unless otherwise stipulated by law.
The contractual partner shall not be entitled to sell the software or the backup copy thereof, including the documentation and other accompanying materials supplied, to third parties, to make them publicly accessible by wire or wireless means or to make them available to third parties in any other way (in particular by lending or renting them out). Excluded from this prohibition of resale and transfer to third parties is the transfer of the software to such third parties to whom no independent right of use is granted and who are subject to the instructions of the contractual partner with regard to the use of the software. In this case, the contractual partner shall ensure that these third parties in turn comply with the prohibition of sale and transfer to third parties.
If the contractual partner uses the software to an extent or in a manner that exceeds the contractually agreed rights of use qualitatively (i.e. with regard to the type of use) or quantitatively (with regard to the number of licenses purchased), it shall immediately lease from us the additional rights of use required for the permitted use. If he fails to do so, we may assert the rights to which we are entitled.
Duty of care, audit right
The contractual partner shall be obliged to take appropriate measures to ensure that unauthorized third parties cannot access the software, the backup copy, the documentation and any other accompanying materials supplied.
In particular, the contractual partner shall be obligated to store the original data carrier, all existing copies of the software including the backup copy as well as all associated documentation in a place protected from unauthorized access by third parties. The costs of storage shall be borne by the contractual partner.
We shall be entitled to check the proper use of the software, in particular whether the contractual partner is using the software qualitatively and quantitatively within the scope of the licenses granted to him. For this purpose, the contractual partner shall, at our request, provide us with information and allow us to inspect relevant records and documents, as well as allow us or an auditing company named by us and acceptable to the contractual partner to inspect the hardware and software environment used, at our expense. We may have the inspection carried out on the premises of the contractual partner, provided that the business operations of the contractual partner are not disturbed by this.
Should the contractual partner find deviations of the software or the documentation from the contractually agreed quality (“defect"), he shall notify us thereof in writing without delay. In particular, a defect shall also be deemed to exist if the contractual partner processes personal data (Art. 4, No. 1, No. 2 DS-GVO) using the software and the software does not meet the requirements of the DS-GVO regarding data protection technology design, which the parties have specified in the quality agreement.
We are obligated to remedy defects in the software and the documentation within a reasonable period of time. Within the scope of the rectification of defects, we shall have the right to choose between rectification and replacement. We shall bear the costs of the rectification of defects.
The contractual partner shall provide us with the access to the software and the documentation required for the purpose of remedying the defect.
The contractual partner shall not be entitled to claim a reduction in rent by deducting the amount of the reduction from the current rent independently. The Contractual Partner’s claim under the law of enrichment to reclaim the portion of the rent paid in excess due to the justified notice of defect shall remain unaffected.
In the event of failure to remedy the defect, the contractual partner shall be entitled to extraordinary termination of the software rental agreement in accordance with Section 543, Paragraph 2, Sentence 1, No. 1 of the German Civil Code (BGB). Failure to remedy the defect shall be deemed to have occurred in particular if it is impossible for us to remedy the defect, if we definitively refuse to do so or if this is unreasonable for the contractual partner for other reasons.
Joint and several liability, indemnification The following provisions shall apply to claims of the contractual partner. Legal or contractual rights and claims to which we are entitled shall neither be excluded nor limited.
We shall be liable without limitation
in case of malice, intent and gross negligence,
within the scope of a guarantee expressly assumed by us,
for damages resulting from injury to life, body or health,
for the breach of essential contractual obligations, the fulfillment of which is a prerequisite for the proper performance of the software rental agreement and on the observance of which the contractual partner regularly relies and may rely (“cardinal obligation"), but limited to the damage reasonably to be expected at the time of the conclusion of the agreement,
in accordance with the provisions of the Product Liability Act and other mandatory statutory liability provisions applicable to us.
In all other respects our liability is excluded. In particular, we shall not be liable for defects already existing at the time of conclusion of the contract, unless a case of clause 9.1 is given.
The above liability provisions shall apply accordingly to the conduct of and claims against our employees, legal representatives and vicarious agents.
For liability for damages, the provisions of clauses 9.1-9.3 above shall apply accordingly. Any further liability for damages shall be excluded – irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages in addition to performance and damages in lieu of performance due to breach of duty as well as to tortious claims for compensation for property damage pursuant to § 823 BGB.
The limitation according to clauses 9.1-9.3 shall also apply insofar as the contractual partner demands reimbursement of expenses.
The statutory provisions on the burden of proof shall remain unaffected.
Violation of the rights of third parties We do not warrant that the use, installation or resale of the delivery items does not infringe any third-party property rights; however, we warrant that we are not aware of the existence of any such third-party property rights to the delivery items.
Statute of Limitations
The limitation period for claims and rights based on defects in the software – irrespective of the legal grounds – shall be one year.
The limitation period pursuant to Clause 11.1. shall also apply to all claims for damages against us.
The limitation period according to clause 11.1. shall not apply in the cases of clause 9.1. above.
Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the expiry of the limitation period, suspension and recommencement of limitation periods shall remain unaffected.
Assignment of claims by the contractual partner Claims against us in respect of the deliveries or services to be provided by us may only be assigned with our prior written consent.
Term of contract, termination
The rental relationship shall have the contractually agreed term. Thereafter, it shall be automatically extended by a further 12 months, unless it is terminated by one of the parties at the respective end of the contract term with a notice period of 3 months.
The right of both parties to extraordinary termination without notice for good cause at any time remains unaffected. Good cause shall be deemed to exist in particular if we or the contracting party intentionally or negligently violate a material obligation under the software rental agreement and the terminating party can therefore no longer reasonably be expected to adhere to the agreement. Accordingly, we shall be entitled to terminate the software rental agreement for cause and without notice in particular if the Lessee violates the provisions of the software rental agreement concerning the payment of the rent and fails to remedy his violation within a reasonable period of time after we have previously warned him to cease and desist from such violation.
Termination of the software rental agreement must be in writing.
Return and deletion
After termination of the rental agreement, the contractual partner shall be obliged to cease using the software and to return the software and all program copies (including the backup copy) as well as all documentation, materials and other documents provided to us. The return shall be at the expense of the contractual partner.
If we have made the software available to the contractual partner by download, we shall be free to waive the return pursuant to Section 14.1 above and instead demand that the contractual partner delete the software and other program copies and destroy the documentation, materials and other documents provided. In this case we may also demand that the contractual partner confirms the deletion to us in writing.
In addition, the contractual partner shall be obligated to completely and permanently delete all installed program copies and any stored documentation from its servers.
Any use of the software after termination of the lease is not permitted.
Clauses 14.1-14.4 shall expressly not apply if and to the extent that statutory retention obligations or the principles of proper computer-aided accounting (GoBS) or the principles of data access and auditing of digital documents (GDPdU) make this necessary. Furthermore, the pdfs with the qualified digital audit opinions generated by the Software during the term of the Agreement as a result of the contractual use of the Software as well as any other audit results resulting therefrom shall be excluded from the application of Sections 14.1- 14.4.
Both contracting parties mutually undertake to maintain confidentiality and to use exclusively in accordance with the contract all information, data and acquired knowledge of business and/or trade secrets of the respective other contracting party exchanged or to be exchanged before and during the term of the contract.
This confidentiality obligation shall not apply to information which is demonstrably generally known or becomes generally known without this being the responsibility of the affected contracting party or which was already known to the affected contracting party before it was made accessible to it by the other contracting party.
Furthermore, the confidentiality obligation shall not apply to the extent that a Contracting Party or a party involved is legally or officially obliged to disclose information, provided that such obligation is notified in writing to the respective other Contracting Party prior to disclosure.
The above confidentiality obligation shall remain in force even after termination of the contractual or business relationship.
Data Protection The parties shall observe the requirements of data protection law. They shall agree on a commissioned data processing contract (Art. 28 (3) DS-GVO), if required.
Written form requirement Amendments or supplements to the contracts concluded with us, including this clause 17, must be in writing, unless otherwise stipulated.
Place of performance, place of jurisdiction, applicable law, intra-community acquisition, severability clause
Unless otherwise agreed, the place of performance shall be exclusively our place of business.
If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of jurisdiction for all obligations arising from and in connection with the contractual relationship – including matters relating to bills of exchange and checks – shall be our registered office or, at our option, the registered office of the contractual partner. The above agreement on the place of jurisdiction shall also apply to contractual partners with their registered office abroad.
All rights and obligations arising from and in connection with the contractual relationship shall be governed exclusively and without regard to conflict of laws provisions by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG: United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980).
Should any provision in these GENERAL TERMS AND CONDITIONS or any provision within the scope of other agreements between us and the contractual partner be or become invalid, this shall not affect the validity of all other provisions or agreements. It is the express wish of the parties hereby to maintain the validity of the remaining provisions or agreements under all circumstances and thus to waive § 139 BGB altogether. In place of the void or unenforceable provision or in order to fill a gap, the valid and enforceable provision shall be deemed to have been determined with retroactive effect, which legally and economically comes closest to what the parties intended or would have intended according to the sense and purpose of the Software Lease Agreement, if they had considered this point when concluding the agreement or including the provision.