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    General Terms and Conditions

    General Terms and Conditions for Software Transactions and IT Services

    1 GENERAL PROVISIONS FOR ALL SERVICES

    The following provisions apply to all software transactions and IT services provided to the Customer by Empolis Information Management GmbH (Kaiserslautern), Empolis Solutions (Kaiserslautern) and Empolis Intelligent Views GmbH (Darmstadt).
    The basis of Empolis Information Management's services is the respective offer, unless Empolis Information Management has declared it to be non-binding and the Customer has accepted the offer by placing a corresponding order within the validity period of the offer.

    1.1 Cooperation of the Customer

    1.1.1

    The Customer must notify Empolis Information Management immediately of any change of domicile or registered office as well as any changes in the legal form and liability relationships of its company.

    1.1.2

    The Customer shall promptly provide Empolis Information Management with all information and documents necessary for Empolis Information Management to provide the service, in particular regarding devices, data, programs and program parts that are to interact with the Empolis Information Management software. The Customer shall provide Empolis Information Management with the necessary information about the intended field of application, about business policy and procedural objectives and priorities and about all other requirements within the Customer's sphere of responsibility. Where necessary, the customer shall obtain the consent of third parties.

    At the request of Empolis Information Management, the Customer shall provide, free of charge, any personnel required for accident prevention reasons for services within the Customer's premises.

    1.1.3

    If the service provided by Empolis Information Management consists of the delivery and/or installation of software, the Customer shall

    1. provide Empolis Information Management with unhindered access to the data processing unit on which the software to be provided is to be used, without waiting time. The customer shall keep the technical facilities necessary for the performance of the services, such as power supply, telecommunication connections and data transmission lines (e.g. remote access for the purpose of service provision) ready for operation and shall make these available to Empolis Information Management free of charge to a reasonable extent. Telecommunication costs shall be borne by the customer.

    2. examine the software for functionality immediately upon receipt and notify Empolis Information Management immediately of any defects.

    3. take appropriate measures in the event that the software does not function in accordance with the contract, in particular through fallback procedures, data backup, continuous monitoring of results and, in the event of malfunctions, through a detailed description of the malfunction. It must be possible to reconstruct data from machine-readable data material with reasonable effort.

    4. be responsible for backing up the data of the installed software.

    5. to keep a record of the copies of the software or user documentation made by him and to provide Empolis Information Management with information on this upon request.

    1.1.4

    The Customer warrants that it is entitled to have Empolis Information Management or its subcontractors store and process the personal data of third parties supplied by it to Empolis Information Management or its subcontractors within the meaning of the Data Protection Act in order to achieve the work result.

    1.1.5

    The Customer shall bear the costs incurred if work has to be repeated or is delayed as a result of incorrect, subsequently corrected or incomplete information provided by the Customer to Empolis Information Management.

    1.2 SERVICE CHANGES AND EXTENSIONS (CHANGE REQUESTS)

    1.2.1

    In the case of work on concepts and software, the Customer may request in writing the modification or extension of the object of performance ("Change Request"). To the extent that the Change Request is reasonable for Empolis Information Management within the scope of its operational capacity, Empolis Information Management will examine the possibility of implementing the change. An agreed completion period for the adaptation or creation services shall initially be extended by the duration of the review period. Empolis Information Management will, if possible, indicate what changes it considers to be necessary compared to the project content agreed up to that point, what effects this may have on the deadlines and what time Empolis Information Management requires in order to provide a detailed offer in terms of price and deadline for the execution of the Change Request.

    1.2.2

    If Empolis Information Management submits such an offer within a reasonable period of time, the Customer may decide whether or not to accept this offer. The Customer must declare this in writing within a period of ten calendar days after receipt of the offer from Empolis Information Management. If no response is received from the customer within this period, the offer shall be deemed rejected.

    1.2.3

    Empolis Information Management may demand remuneration for the examination of the change request, if it has announced this accordingly in its response, and for the preparation of corresponding documents. Unless otherwise agreed between the parties, such remuneration shall be based on time spent. The calculation is made on the basis of Empolis Information Management's current price list.

    1.3 RIGHTS OF USE TO SOFTWARE

    1.3.1

    Empolis Information Management grants the Customer, upon full payment of the agreed remuneration, the non-exclusive right, unlimited in time, to use the Software within the Federal Republic of Germany for its own purposes by loading, displaying, running, transferring or storing it in whole or in part in its company. The right of use shall only be granted for the data processing unit(s) specified in the offer, the users and their number specified therein, and to the extent of reproduction specified therein. The customer is entitled to create and store a backup or archiving copy of the software within the scope of the intended use of the software.

    1.3.2

    If the user documentation is provided on a machine-readable data carrier, the provisions of Clause 1.3.1 shall apply accordingly.
    Printed user documentation is provided to the customer for the purpose of handling the software and may be reproduced for this purpose.

    1.3.3

    The customer is entitled to combine the software provided with other computer programs. The retranslation of the software into other code forms (decompilation) is only permitted within the legal framework. The actions specified in this statutory provision may only be transferred to third parties if Empolis Information Management is not prepared, after a reasonable period of consideration, to undertake the desired creation of interoperability in return for appropriate remuneration.

    1.3.4

    The Customer may edit the Software for the purpose of correcting errors, provided that these actions are necessary for the intended use of the Software within the scope of the Customer's own use and Empolis Information Management is not prepared to carry out these actions within a reasonable period of time and on reasonable terms. Under no circumstances does the Customer's own use include the distribution of the Software. The Customer must prove the necessity of the actions to be taken to correct errors in the Software.

    1.3.5

    Identifications, trademarks, proprietary rights or other legal owner notices on delivered data carriers and user documentation may not be removed and must be transferred unchanged to copies of machine-readable data carriers made by the customer.

    1.3.6

    The Customer may permanently transfer the right to use the Software granted herein, including the user documentation, to a third party by giving up its own right of use, provided that the third party has agreed in writing to the continued application of the Customer's obligations under this Agreement, in particular with regard to the right of use, also vis-à-vis the third party. The Customer shall immediately notify Empolis Information Management of the transfer and name the third party. In the event of a transfer, the Customer shall hand over to the third party all copies of the Software, including any existing backup or archiving copies, or destroy any copies not handed over.
    destroy the copies not handed over. The customer's right to use the software shall expire with the transfer.

    1.3.7

    The right to duplicate and distribute, the right to transfer and sublicense to third parties, the right to edit and modify, including the use and duplication of the respective results and their corresponding distribution are otherwise excluded.

    1.3.8

    Insofar as open source software is required for the service ordered by the Customer from Empolis Information Management, the Customer shall procure such software and the necessary licenses in its own name and for its own account and make them available to Empolis Information Management.

    1.3.9

    The above provisions in this Clause 1.4 shall apply mutatis mutandis to all further developments (upgrades, releases, new versions, etc.) which Empolis Information Management creates for the Customer within the scope of the contractual relationship (in particular in the case of software maintenance contracts).

    1.4 REMUNERATION, TERMS OF PAYMENT

    1.4.1

    The Customer shall pay the agreed remuneration. If no remuneration has been agreed for a service provided by Empolis Information Management, the prices, daily or hourly rates (daily rates include 8 hours of work per day) of Empolis Information Management valid at the time of the conclusion of the contract shall apply in accordance with its current price list. Unless otherwise agreed, the remuneration shall apply ex Empolis Information Management's registered office.

    1.4.2

    The remuneration is exclusive of VAT at the applicable statutory rate and country-specific taxes for deliveries abroad. In addition to the agreed remuneration, travel expenses will be invoiced. Travel times are considered working hours.

    1.4.3

    If an expense-related remuneration has been agreed, the Customer is obliged to make payments on account at the request of Empolis Information Management. In these cases and in the case of the final invoice, which must take into account any payments on account, the remuneration is payable immediately after the respective invoice is issued without deduction, unless the contracting parties have agreed payment on specific dates.

    1.4.4

    If a lump-sum payment has been agreed for services, this shall be paid as follows: 40% upon conclusion of the contract; 30% eight weeks after conclusion of the contract or on the agreed date and 30% after acceptance.

    1.4.5

    Empolis Information Management reserves the right to increase the remuneration for projects involving the adaptation or creation of software whose agreed realization period is longer than 12 months, subject to a notice period of three months, if no fixed lump-sum price has been agreed. The increase may not exceed 5% of the agreed remuneration within one year of the last request for an increase.

    1.4.6

    All claims of Empolis Information Management shall become due immediately if the payment dates and deadlines are not met without cause or if there is a significant deterioration in the Customer's financial circumstances.

    1.4.7

    If a payment by the Customer does not settle all claims of Empolis Information Management due to the Customer, the payment shall first be set off against the unenforceable and not legally pending liabilities and finally against the enforceable liabilities, in each case first against the older and then against the more recent.

    1.4.8

    The Customer may only set off undisputed or legally established claims against Empolis Information Management's claim for remuneration. The customer may only assert a right of retention in cases of undisputed or legally established claims.

    1.5 WARRANTY

    1.5.1

    The limitation period for claims for defects is one year after delivery (for standard software) or after acceptance (for concepts or customization, creation and installation of software).

    1.5.2

    A defect shall be deemed to exist if the contractual software with documentation does not have the contractually agreed quality or is not suitable for the contractually agreed use. The contractual quality is defined in the offer or the concept of Empolis Information Management. The Customer shall notify Empolis Information Management of any defects immediately upon discovery, describing the appearance of the defect.

    1.5.3

    Empolis Information Management is entitled to a reasonable period for subsequent performance. Empolis Information Management may, at its discretion, either remedy the defect or provide the service again. Empolis Information Management's instruction of a reasonable work-around of the software defect is a sufficient remedy of the defect. The contracting parties agree that due to the complexity and scope of software programming, more than two attempts to rectify the defect are generally necessary. Withdrawal is excluded in the event of only an insignificant reduction in the value or suitability of the concept, as well as if the customer is in default of acceptance or is primarily responsible for the defect. If the delivered, adapted or created software is used without complying with the conditions of use, the obligation for subsequent performance shall lapse, unless the customer proves that the defect is not attributable to this.

    1.5.4

    In the event of an unjustified notice of defect, the customer shall bear the costs incurred by Empolis Information Management if the customer has culpably failed to recognize the absence of the defect.

    1.6 TERM OF THE CONTRACT, TERMINATION

    1.6.1

    Agreements on the adaptation, creation, installation and provision of software and concepts as well as consulting and training services may only be terminated in accordance with the statutory provisions.

    1.6.2

    A contract for software maintenance or servicing begins on the agreed date and is concluded for a period of at least 12 months. The contract shall be extended by one year at a time if it is not terminated by one of the contracting parties with three months' notice to expiry. The right of termination can also be exercised with regard to individual software parts of a part of the contract, insofar as this is reasonable for the other contractual partner and the parts are functionally separable. The right to terminate without notice for good cause remains unaffected by the above termination provision. Important grounds for termination by Empolis Information Management are in particular

    1. if Empolis Information Management is unable to perform as a result of a failure to deliver new program versions by a third party for which it is not responsible, although Empolis Information Management has made all reasonable efforts to procure the new program versions;

    2. if the customer has carried out modifications to the software to be maintained or has had such modifications carried out by third parties;
    3. if changes and extensions to the software to be maintained by Empolis Information Management initiated by the Customer lead to changes in Empolis Information Management's performance, in particular to additional expenses;
    4. if the Customer refuses to accept a new release; or

    5. if the Customer is more than two months in arrears with a payment or fails to pay two (not necessarily consecutive) invoices within the agreed period.

    Termination must be in writing.

    1.7 Liability

    1.7.1

    A contractual partner shall only be liable for itself and its vicarious agents, irrespective of the legal grounds, if a material contractual obligation has been culpably breached in a manner that jeopardizes the purpose of the contract or if the damage is attributable to intent or gross negligence. An essential contractual obligation is an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. If the culpable breach of such an essential contractual obligation is not intentional or grossly negligent, liability shall be limited in terms of reason and amount to such typical contractual damages as were reasonably foreseeable at the time the contract was concluded.

    1.7.2

    Empolis Information Management shall only be liable for the recovery of data if the Customer has taken reasonable precautions, in particular by making daily backup copies of all data, to ensure that such data can be reconstructed from machine-readable data material with reasonable effort.

    1.7.3

    Insofar as liability is excluded or limited under these terms and conditions, this shall also apply to the personal liability of the bodies, employees, workers, staff, representatives and subcontractors of this party.

    1.7.4

    The limitation of liability contained in these Terms and Conditions shall not apply to claims under the Product Liability Act.

    1.7.5

    The contracting parties shall not be liable for a breach of the obligations arising from this contract and the orders agreed under it if the breach is due to force majeure, in particular war, civil war, natural disasters, acts of terrorism, strike (not lockout), embargo. Strikes shall not be deemed force majeure within the meaning of this section if the strike was caused by unlawful acts of the respective contracting party. If one of the parties is prevented from fulfilling its contractual obligations due to force majeure, this shall not be deemed a breach of contract and the deadlines stipulated in the contract or on the basis of the contract shall be extended appropriately in accordance with the duration of the impediment. The affected party shall immediately after the occurrence of the force majeure event inform the other party in writing of the nature of the event, the time and date of its occurrence and the likely impact of the result on its ability to perform its contractual obligations.

    1.8 Confidentiality

    1.8.1

    Unless otherwise agreed, each contracting party shall treat the information (including documents, samples, etc.) provided to it by the other contracting party as trade secrets entrusted to it, use it only within the scope of the purpose of the contract and not make it accessible to third parties. This obligation does not apply if the information

    1. was accessible to the public before receipt, or
    2. became accessible to the public after receipt without the recipient of the information being responsible for this, or
    3. was made available to the recipient of the information at any time by a third party authorized to do so to the best knowledge of the recipient of the information, or
    4. were known to the Information Recipient prior to receipt or are independently developed by the Information Recipient, or

    5. is made available to a third party by Empolis Information Management for the performance of its services and Empolis Information Management has obliged the third party to maintain confidentiality in accordance with this Confidentiality Policy.

      confidentiality in accordance with this Confidentiality Agreement,

    6. are provided to a consultant of a Contractual Partner who is bound by professional secrecy (tax consultant, accountant, lawyer) for the purpose of providing advice to the Contractual Partner, or

    7. must be disclosed on the basis of a final or legally binding official or judicial decision or a law. If such a reason becomes known, the recipient of the information must inform the provider of the information immediately.

    1.8.2

    The contracting parties shall exercise the same care in maintaining the confidentiality of the information as they do with regard to their own trade secrets. They shall be mutually responsible for ensuring that their employees - insofar as they can obtain knowledge of information - are obliged accordingly.

    1.8.3

    All rights to the information shall remain with the informing contractual partner. Irrespective of the term of the contract, each contracting party shall use the information provided to it only in accordance with this agreement for a further three years after receipt of the information.

    2 SPECIAL PROVISIONS FOR CERTAIN SERVICES

    The following provisions apply to the respective services provided by Empolis Information Management within the agreed scope:

    2.1 Concept development

    2.1.1

    Empolis Information Management shall prepare a concept in the form of written documentation on the basis of the offer. The objective of the concept is to create a data processing basis for the Customer for individual software to be created and/or software to be adapted, in particular software to be parameterized.

    2.1.2

    In the concept, Empolis Information Management analyzes, evaluates and documents the customer's requirements. It describes the functions and tasks to be performed by the software in order to achieve the Customer's objectives, as well as the workflows, interfaces and interaction of the functions and the information required and to be generated by them. The concept is created by Empolis Information Management in close cooperation with the customer.

    2.1.3

    The content of the concept is only a guarantee of quality if this is expressly stated in writing. Performance dates or deadlines are non-binding unless Empolis Information Management has expressly agreed to them as binding.

    2.1.4

    If the work result essentially corresponds to the agreements, the Customer must declare acceptance in writing without delay, at the latest within four weeks of receipt of the concept. If there are significant deviations from the contractually agreed requirements, Empolis Information Management shall remedy these deviations within a reasonable period of time. Empolis Information Management shall then provide the Customer with the work result for renewed acceptance. The Customer's acceptance may also take place subject to the reservation of its rights due to a defect.

    2.1.5

    If the Customer does not declare acceptance without giving reasons, Empolis Information Management may set a reasonable deadline for the submission of the declaration. The work result shall be deemed to have been accepted upon expiry of the deadline if the Customer does not specify the reasons for refusal of acceptance in writing within this deadline.

    2.1.6

    Empolis Information Management grants the Customer the non-exclusive and non-transferable right to use the concept developed for the Customer's business operations as a basis for the creation or adaptation of its software. Empolis Information Management's right to create concepts with comparable tasks for third parties remains unaffected.

    2.2 Consulting and training services

    2.2.1

    Empolis Information Management advises and/or trains the customer in accordance with the offer.

    2.2.2

    If the Services have not been performed or have not been performed in accordance with the contract, Empolis Information Management shall be obliged to perform the Services in accordance with the contract within a reasonable period of time if the Customer has notified Empolis Information Management of this in writing.

    2.3 Provision of standard software

    2.3.1

    Empolis Information Management shall provide the Customer with standard software (hereinafter referred to as "Software") in the object program with user documentation. The scope of services and functions of the software provided shall be determined by the product description of Empolis Information Management valid at the time of conclusion of the contract.

    2.3.2

    The Software is executable on the hardware and software environment specified by Empolis Information Management in the product description or in the contract. The conditions of use are specified in the product description or in the offer. Additional agreements, e.g. on the interaction with other programs or networking options, depend on the customer-specific situation and may have to be agreed separately.

    2.3.3

    The technical data and descriptions in the product description do not constitute a guarantee of quality, unless Empolis Information Management has expressly designated the description as a guarantee of quality.

    2.3.4

    The Customer shall receive a copy of the Software on the machine-readable data carrier specified in the Agreement and a copy of the user documentation. The user documentation shall be provided to the customer in printed form or on a machine-readable data carrier, if necessary on the same carrier on which the software copy is recorded. At the customer's request, delivery shall be made on a machine-readable data carrier provided by the customer at its own expense.

    2.3.5

    Additional services, such as installation of the Software on the Customer's hardware, instruction and training, shall be agreed and remunerated separately if these services are to be provided by Empolis Information Management. Maintenance of the Software, customer-specific adaptations of the Software and maintenance of customer-specific adaptations shall only be the subject of Empolis Information Management's services if they have been offered in writing by Empolis Information Management and ordered by the Customer.

    2.4 Maintenance of Standard Software

    2.4.1

    Empolis Information Management shall perform maintenance services on the standard software specified in the offer, including the relevant user documentation, if applicable. The maintenance services for the software serve to maintain the functionality of the software, but do not include any guarantee that the software will always function without malfunction or interruption. Empolis Information Management offers various service levels for the provision of maintenance services for its standard software. The type, scope and content of the maintenance services are determined by the agreed service level. Insofar as maintenance services are owed by Empolis Information Management according to the respective offer, without a service level being specified, the maintenance services will be provided by Empolis Information Management in accordance with the Service Level Agreement "Silver" in the respective valid version. The applicable Service Level Agreement will be provided to the Customer upon request, unless it is already enclosed with the offer.

    2.4.2

    The Customer may change from the currently agreed Service Level to another Service Level with a higher performance profile by notifying Empolis Information Management at least 60 days before the end of the respective contract term. The new service level will then apply for the first time at the beginning of the new contract year. Remuneration will then be determined in accordance with the price list of Empolis Information Management applicable to the respective service level.

    2.4.3

    The provision of new program versions (hereinafter "Version") with performance and functional enhancements through reprogramming of essential parts of the Software - including the possibility of using new technologies, if applicable - may be the subject of a separate Software License Agreement for a fee.

    2.5 Creation, adaptation and installation of software

    2.5.1

    The nature and scope of the services to be provided by Empolis Information Management for the creation, customization and installation of Software shall be determined either by Empolis Information Management's offer or by the concept that Empolis Information Management has prepared for the Customer on the basis of these Terms and Conditions.

    2.5.2

    If its services are functional, Empolis Information Management shall make the work result available to the Customer in the agreed form and shall notify the Customer in writing of its functionality. Acceptance of services provided by Empolis Information Management requires a successful functional test, which must be commenced within two weeks of receipt of the notification and completed within a further two weeks. If the work result is essentially in accordance with the contract, the Customer shall declare acceptance in writing. If the Customer does not declare acceptance without giving reasons, Empolis Information Management may set a reasonable deadline for the submission of the declaration. The work result shall be deemed to have been accepted upon expiry of the deadline if the Customer does not specify the reasons for refusal of acceptance in writing within this deadline. If the customer provides sufficient reasons for non-acceptance, Empolis Information Management shall be obliged to rectify the work result in order to obtain acceptance. If Empolis Information Management does not provide a work result that is ready for acceptance even after two attempts at rectification, the Customer may terminate the contract in accordance with Section 1.6.2.

    2.5.3

    The contracting parties may agree in writing on acceptance criteria which must be guaranteed within the scope of the functional test and without compliance with which the functional test shall be deemed not to be in accordance with the contract.

    2.5.4

    Empolis Information Management shall remedy any significant deviations from the contractually agreed requirements within a reasonable period of time. A significant deviation from the contractual requirements shall be deemed to exist if significant disruptions occur in parts of the program sequences, so that parts of the software cannot be used, or if a lasting disruption of the software sequence occurs, resulting in the system's inability to function or disruption of parts of the system, which leads to disruption of all work processes at the Customer. Empolis Information Management will then make the work result available to the customer for renewed acceptance.

    2.5.5

    Acceptance by the Customer may also take place subject to the reservation of the Customer's rights due to a defect. In this case, the provisions of the preceding paragraph shall apply equally to material deviations in respect of which the Customer has reserved its rights.

    2.5.6

    If different points in time have been agreed for the provision of functional capability for services, the functional test shall be limited to the respective partial service. Upon acceptance of the last partial service, a functional test, in which all partial services are included, shall determine the contractual interaction of all services.

    2.5.7

    Each contractual partner shall appoint a contact person responsible for arranging meetings and for providing and receiving information relating to the project. Immediately after conclusion of the contract, the customer shall name in writing the persons whose technical or legal declarations are binding for the customer. Both contracting parties shall each appoint a project manager who shall be responsible for clarifying all technical issues in connection with the provision of contractual services. In the event of a change of project manager, the other contracting party must be informed of this in writing.

    3 Final provisions

    3.1

    The underlying offer of Empolis Information Management, including any supplements, is an integral part of this contract.

    3.2

    The place of performance for the services of Empolis Information Management is the registered office of Empolis Information Management. The place of jurisdiction for all disputes arising from the contract is the competent court for the registered office of Empolis Information Management.

    3.3

    Collateral agreements, amendments and supplements to the contract must be made in writing. This written form requirement may only be waived by written agreement.

    3.4

    The contractual relationship between the contracting parties shall be governed by the law of the Federal Republic of Germany. The application of the Vienna UNCITRAL Convention on Contracts for the International Sale of Goods of April 11, 1980 and the application of German conflict of laws provisions are excluded.

    3.5

    If the present contract contains a loophole or if a provision is or becomes invalid in whole or in part, the remainder of the contract shall remain valid. In place of the missing or invalid provision, a provision shall be deemed to have been agreed which comes closest to the economic purpose originally intended by the contracting parties for the missing or invalid provision. However, the contract shall be invalid in its entirety if adherence to it would constitute an unreasonable hardship for one of the contracting parties, even taking into account the intended amendment.

    3.6

    Empolis Information Management is entitled to transfer its rights and obligations under this Agreement in whole or in part to its group parent company or its affiliated group companies (within the meaning of Section 15 AktG) or to assign rights under this Agreement to them. The Customer may only transfer its rights and obligations under this Agreement in whole or in part with the written consent of Empolis Information Management.

    3.7

    The Customer is advised that Empolis Information Management will store and process personal data disclosed in the course of the contractual and business relationship within the meaning of the Data Protection Act, insofar as this is expedient for the performance of this Agreement.

    3.8

    The Customer agrees that Empolis Information Management may name it as a reference customer for the solution created within the scope of this project. This also includes permission to use the name of the Customer and the created application for marketing purposes. In addition, Internet and Intranet solutions of the Customer created or supported by Empolis Information Management shall contain a reference to the fact that the solution was realized with the help of products and services of Empolis Information Management.

    General Terms and Conditions (GTC) for Empolis Industrial Knowledge

    1 Subject matter of the contract, scope of performance of the software

    1) The subject matter of these General Terms and Conditions is the rental of the Empolis Industrial Knowledge software (the "Software") for use by the Customer via the Internet. 2) These General Terms and Conditions apply only to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. 3) The scope of performance of the software is set out in the product description, available at www.empolis.com. We are entitled to make reasonable adjustments to the scope of the software at any time, in particular if the scope of services is extended or the adjustment is necessary to meet legal requirements or to ensure the security of the operation of the software.

    2 Provision of the software

    1) We shall provide the software, including storage space for the storage of user data, to the extent agreed with the customer, from the date agreed with the customer for use via the Internet in accordance with this contract. 2) At the customer's request, we shall, on the basis of a separate agreement, provide training on the installation, operation and use of the software, or set up the software completely in accordance with the agreements made with the customer. 3) We use servers located within the European Union for the provision and operation of the software. The software and the servers used are protected against unauthorized access, data loss and the spying out of data at least in accordance with the usual security precautions for such offers. 4) The customer has no claim to the provision of a specific server for his sole use, but we can run several instances of the software on this server if the data stocks of our customers are separated, within the scope of the capacity of a server. 5) We shall provide the customer with the user name and user password for the first user. The customer must immediately change the password to a password known only to him. This user account is the first administrator account for the customer. The customer can use it to set up the software and create further users himself. 6) In order to use the software, a Chrome or Firefox browser in the latest or at least the previous version must be used.

    3 New versions of the software, quality assurance

    1) We shall make new versions of the software available at our discretion. 2) We are entitled to use the data stored by the customer in the software for quality assurance of new versions of the software before making them available to the customer (e.g. test runs) and to train the software with this data in order to be able to provide new functionalities (e.g. training for automatic recognition of new data categories). 3) We shall inform the customer within a reasonable period of time of any significant changes to the software if these may result in a change or restriction of the usual use cases of the software.

    4 Customization of the software

    1) At the customer's request, we will submit offers for individual extensions to the software within the scope of the possibilities provided by us ("Cloud Extensions"). We will point out to the customer whether the customizations requested by the customer - at our due discretion - may result in the fact that their transfer to new versions of the software should not be possible automatically, but only manually, for a fee to be agreed separately. 2) The customer acquires the same rights to individual adaptations as to the software for the term of this contract. Otherwise, all rights to the customizations shall remain with us.

    5 Data backup

    1) The data stored by the Customer using the Software shall be backed up every calendar day between 22:00 and 04:00 (UTC). As protection against accidental deletion of data stored via Empolis-Box, this data can be restored up to 60 days after deletion. After this period, restoration is no longer possible. 2) Data is backed up for data indexing systems in the form of daily snapshots, each of which is backed up for 30 days. The original data is backed up by means of versioning, which retains the older version for 60 days if documents are changed or deleted. In addition, there is automatic continuous replication to a second data center within the European Union.

    6 Availability of the software

    1) The Empolis software offers an availability of the software at the transfer point (interface to the Internet in the data center where the software is running) of 99.5% per contract month. 2) The parties understand availability of the Software to mean the possibility of using the Software at the transfer point. 3) The following times shall not be taken into account when determining whether availability has been maintained: a) Disruptions or impairments to the technical infrastructure or the Internet required for the use or execution of the software, provided that we or our vicarious agents are not responsible for them. b) Planned unavailability of the software for maintenance work, primarily at times of low usage, provided that we give at least one week's notice. To ensure the security of the software systems and the data stored therein, maintenance windows may be announced and carried out in urgent cases (e.g. important security updates) with reasonable advance notice in each individual case.

    7 Use of the software by the customer

    1) The customer receives simple (non-sublicensable and non-transferable) rights to use the software in accordance with the contract, limited to the term of this contract. The transfer of the right of use to employees of group companies within the meaning of §§ 15, 16 AktG is not permitted unless expressly agreed with us. 2) The customer shall take customary and reasonable precautions to prevent the use of the software by unauthorized persons by means of the user IDs and passwords used by him. He shall inform us immediately if he suspects that the access data and/or passwords may have become known to unauthorized persons and shall secure these accesses - as far as possible - immediately by changing the password. The customer shall immediately delete or change the access data of employees who have left the company. 3) In the event of misuse of the user IDs and/or passwords used by him, the customer shall bear the burden of proof that he is not responsible for this misuse. If we have the corresponding proof, we are obliged to inform the customer accordingly. 4) The customer may not use the software for illegal purposes or in violation of the rights of third parties. In particular, the customer shall refrain from any use that could lead to us being accused of violating applicable laws or the rights of third parties. He shall indemnify us against all corresponding, justified claims of third parties, including reasonable costs of legal examination and representation. 5) The customer is obliged to notify us immediately of any defects in contractual services, in particular defects in the software. If the customer fails to notify us in good time for reasons for which he is responsible, this shall constitute contributory causation or contributory negligence. Insofar as we were unable to remedy the situation as a result of the failure or delay in notification, the customer shall not be entitled to reduce the agreed remuneration in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without observing a period of notice. The customer must demonstrate that he is not responsible for the failure to report the defect. 6) If the customer violates the above provisions for reasons for which he is responsible, we may block his access to the software or to application data if the violation can be demonstrably remedied as a result. If it is reasonable for us to do so, we shall request the customer to remedy the breach, setting a reasonable deadline. 7) If the customer continues to violate or repeatedly violates the above provisions despite a corresponding warning and is responsible for this, we may terminate the contract extraordinarily without observing a notice period.

    8 Apps for mobile devices

    1) At our discretion, we provide an app for various platforms (currently iOS from version 11) that allows mobile and local offline use of the software. 2) By installing such an app, the customer acquires a simple, non-transferable right to use the installed copy on the respective end device for the purposes of this contract. In order to be able to use the apps in conjunction with the software, the latter must provide the corresponding functions. 3) The apps lose their functionality at the end of this contract.

    9 Use of the API

    1) Industrial Knowledge provides a so-called API (software interface) by means of which it can establish a link between the Software and other systems. 2) The information published by us applies to the use and functional scope of the API. 3) The customer is entitled to use the API for the term of this contract, provided that this is part of the price model booked by the customer.

    10 Use of the Empolis Box

    1) At the customer's request, we will provide him with the so-called Empolis Box software, which enables the synchronization of data between his system and the software operated for him. The information published by us for the Empolis Box software applies to the installation, operation and scope of functions. 2) The Customer acquires a simple, non-transferable right to install, operate and use the Empolis Box Software on its systems for the purposes of this Agreement for the term of the Agreement. The Customer is entitled to make customary and appropriate backups of the software installed on its systems.

    11 Infringement of property rights

    1) We guarantee that the contractual use of the software does not infringe copyrights or other industrial property rights of third parties. 2) Should this nevertheless be the case, we shall, at our discretion, acquire the necessary rights at our own expense or modify the software at our own expense in such a way that it no longer infringes the rights of third parties while complying with the services owed to the customer.

    12 Remuneration

    1) We shall be entitled to the remuneration agreed with the customer for our services. We shall invoice this in advance on an annual basis. 2) We are entitled to send invoices to the customer in digital form. If the contractually agreed storage and traffic quotas are exceeded, we reserve the right to invoice the actual amount of data used by the users in accordance with our current price list.

    13 Non-fulfillment of our main performance obligations

    1) If we are in default with the initial provision of the software, the customer shall be entitled to withdraw from the contract if a reasonable grace period set for us expires without result, i.e. if we do not provide the agreed functionality of the software for the first time within the grace period. 2) If we fail to meet our obligations in whole or in part after the software has been made available in an operational state and if the availability of the software falls short of the agreed availability for a contractual month, the agreed monthly flat-rate usage fee shall be reduced pro rata for the time during which the software was not available to the customer to the agreed extent. 3) We must demonstrate that we are not responsible for the reason for the delayed provision or the shortfall in availability owed. If the customer has not notified us of the lack of availability of the software, the customer must prove that we have gained knowledge of the lack of availability in some other way.

    14 Claims for defects

    1) Unless otherwise agreed below, the statutory provisions shall apply. 2) We shall be entitled to choose the type of subsequent performance within the statutory limits. 3) The limitation period for claims for defects is one year. This does not apply to claims arising from intent, gross negligence, injury to body, health or life, the assumption of a guarantee or claims under the Product Liability Act. 4) Our strict liability for damages in accordance with § 536a BGB for defects existing at the time of conclusion of the contract is excluded.

    15 Liability

    1) Liability shall be governed by the statutory provisions, unless otherwise agreed below. 2) In the event of simple negligent breach of material contractual obligations, liability shall be limited to the amount of foreseeable damage typical for the contract. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the injured party may regularly rely. The limitation period for claims under this paragraph is one year. 3) Liability for foreseeable and contract-typical damages in accordance with paragraph 2 is limited to six times the amount of the usage fees paid by the customer in the respective month. 4) Paragraph 2 shall not apply to claims arising from injury to body, health or life, the assumption of a guarantee or claims under the Product Liability Act.

    Term, termination

    1) The contractual relationship begins with the conclusion of the contract with a fixed term of one year. It can only be terminated during the fixed term for good cause. 2) Termination is possible with a notice period of three months to the end of the respective fixed term. If no notice of termination is given, the fixed term is extended by a further year in each case. 3) The right to terminate for good cause remains unaffected. In particular, the following reasons shall be deemed good cause if they exist for the other party: a) The breach of material contractual obligations by the other party if the breach is not remedied despite a reminder and the setting of a reasonable deadline. The reminder and setting of a deadline is not required in the event of unreasonableness. b) The party's own application for the opening of insolvency proceedings, the opening of insolvency proceedings and the refusal to open insolvency proceedings for lack of assets. c) Complete default of payment by the customer for two consecutive months or default of payment for a period extending over more than two months, provided that the customer is in default of payment with amounts that total at least two months' fees.

    17 Release of customer data upon termination of the contract

    Upon termination of the contract, the software instance shall be deactivated for the customer and the customer data stored in it shall be archived for a period of 30 days. The customer can request a copy of their data for download within this period. After the 30 days have expired, the data will be deleted, even if no download has yet taken place. The customer data is made available in the format stored in the software.

    18 Confidentiality

    1) We undertake to maintain the confidentiality of the customer's business secrets. Business secrets are information or knowledge of the customer that is made known to us within the scope of this contract (e.g. by storing data in the software). It is not necessary for a trade secret to be designated as such. 2) Trade secrets which (i) were generally known at the time of disclosure or become generally known thereafter - through no fault of our own; (ii) were already lawfully known to us at the time of disclosure, without the existence of a confidentiality obligation; (iii) are lawfully disclosed to us by third parties after the time of disclosure, without a confidentiality obligation, without the third party being obliged to maintain confidentiality vis-à-vis the customer; (iv) have been developed by us independently without our having used confidential information of the customer for this purpose; (v) become known to us through a permissible analysis of publicly available services or products of the customer or (vi) must be disclosed due to mandatory statutory, official or court regulations or orders. orders must be disclosed. 3) We are obliged to keep the customer's business secrets secret and not to allow third parties to gain knowledge of them. We shall only grant access to the customer's business secrets to those employees and third parties who are entrusted with the provision of services under this contract and who have undertaken to maintain confidentiality at least in accordance with the provisions of this contract. We must prove this to the customer at his request. 4) This confidentiality agreement shall not be affected by the termination of the contract. 5) The data protection for personal data shall be governed by the order processing agreement concluded separately between the parties, if applicable. If no such contract exists, we undertake to comply with data protection regulations.

    19 Data protection

    If the customer wishes to store or process personal data in the software, we are prepared to conclude our contract for order processing in accordance with Art. 28 GDPR.

    20 Final provisions

    1) This contract contains all agreements between the parties on the subject matter of the contract. Any deviating ancillary agreements and earlier agreements on the subject matter of the contract are hereby invalidated. 2) Amendments and supplements to this contract must be made in writing, unless a stricter form is prescribed by law. This shall also apply to any waiver of the formal requirement. 3) The customer's general terms and conditions shall not apply to this contract. This shall also apply if their inclusion has been referred to in subsequent documents in connection with this contract without contradiction. 4) Should any provision of this contract be or become void, invalid or unenforceable in whole or in part, or should a necessary provision not be included, the validity and enforceability of all other provisions of this contract shall not be affected. 5) The contract shall be governed solely by the law of the Federal Republic of Germany. Private international law shall not apply insofar as it can be excluded. 6) The sole place of jurisdiction for all disputes in connection with this agreement is our registered office. We are also entitled to take legal action against the customer at one of his legal places of jurisdiction.