General Terms and Conditions (Sales)

§ 1 Validity of the Terms and Conditions

1. These General Terms and Conditions apply to all our business relationships with our customers, in particular to cloud-based access and cloud-based use of the “OT360” software solution via web browser or app. Other terms and conditions shall not become part of the contract, even if INspares GmbH does not expressly object to them. Individual agreements shall take precedence over these General Terms and Conditions. 

2. Even if this is not expressly stated again in the future conclusion of similar contracts, the General Terms and Conditions of INspares GmbH in the version available at www.inspares.de at the time of submission of the customer’s declaration shall apply exclusively, unless the contracting parties agree otherwise in writing.

3. In the case of contracts with consumers, only [§ 3, § 4, § 7 (1–3) and § 14] shall apply; otherwise, the statutory provisions shall apply.

4. With regard to the granting of use of the software and the provision of storage space, the warranty provisions of tenancy law (§§ 535 ff. BGB) shall apply. For supplementary services (e.g. installation, parameterisation, training), §§ 611 ff. BGB shall apply in addition. For supplementary work services (e.g. recording the inventory of electronic components), §§ 631 ff BGB shall apply, subject to § 16.
   
   

§ 2 Conclusion of contract

1. The offers made by INspares GmbH are subject to change and non-binding unless they are designated as binding in writing. A legal obligation shall only come into effect through a contract signed by both parties or through a written order confirmation from INspares GmbH, or through INspares GmbH commencing the provision of services after the order has been placed. INspares GmbH may request written confirmation of verbal contractual declarations made by the customer.

2. The customer shall be bound by its declarations regarding the conclusion of contracts for a period of two weeks.

3. Separate contracts must be concluded for deliveries and services of a different nature (e.g. software maintenance, installation and parameterisation of the software, training). Both contracting parties are free to conclude such contracts. 
   
   

§ 3 Subject matter of the contract, scope of services

1. The subject matter of these contractual terms and conditions is solely the cloud-based provision of software and the granting of rights of use in accordance with § 4, as well as the services ordered, e.g. training in accordance with § 15. 

2. Prior to concluding the contract, the customer has verified that the software specifications meet their wishes and requirements. They are familiar with the essential functional features and conditions of the software.

3. The scope, type and quality of the deliveries and services are determined by the contract signed by both parties or the order confirmation from INspares GmbH, otherwise by the offer from INspares GmbH. Other information or requirements shall only become part of the contract if the contracting parties have agreed this in writing or if INspares GmbH has confirmed this in writing. Subsequent changes to the scope of services require a written agreement or written confirmation by INspares GmbH.

4. Product descriptions, illustrations, test programmes, etc. are descriptions of services, but do not constitute guarantees. A guarantee requires an express written declaration by the management of INspares GmbH.

5. The customer receives cloud-based access to the software, consisting of the machine programme and the user manual, via a web browser or app. The customer has no right to receive the source programme. 

6. INspares GmbH provides all deliveries and services in accordance with the state of the art. 
   
   

§ 4 Rights of the customer to the software

1. The software (program and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other property rights to the software and other items that INspares GmbH provides or makes available to the customer in the course of contract initiation and execution are exclusively vested in INspares GmbH in the relationship between the contracting parties. Insofar as the rights are held by third parties, INspares GmbH has the corresponding exploitation rights. 

2. The customer is only entitled to use the programme to process their own data in their own business for their own purposes. All data processing devices (e.g. hard drives and central processing units) to which the programmes are copied or transferred in whole or in part, temporarily or permanently, must be located on the customer’s premises and in their direct possession. Further contractual rules of use (e.g. restriction to a number of workstations or persons) must be set up technically and complied with in practice. INspares GmbH hereby grants the customer the necessary authorisations for this use as a simple right of use. Section 13 applies for the duration of the right of use. 

3. All other acts of exploitation, in particular rental, lending and distribution in physical or non-physical form, use of the software by and for third parties (e.g. through outsourcing, data centre activities, application service providing) are not permitted without the prior written consent of INspares GmbH.

4. Contractual objects, documents, proposals, test programmes, etc. of INspares GmbH that become accessible to the customer before or after conclusion of the contract are considered intellectual property and business and trade secrets of INspares GmbH. They may not be used in any way without the written permission of INspares GmbH and must be kept confidential in accordance with § 14.

5. The customer acquires the same rights to modified, extended or newly created software as to the standard software. Insofar as the newly transferred items replace items already delivered, the rights transferred to the previous items shall expire at the time when the new items become usable. 
   
   

§ 5 Performance time, delays, place of performance

1. Information on delivery and performance times is non-binding unless it has been designated as binding in writing by INspares GmbH. INspares GmbH may provide partial services insofar as the delivered parts can be used by the customer in a meaningful way.

2. Delivery and performance deadlines shall be extended by the period during which the customer is in default of payment under the contract, by the period during which INspares GmbH is prevented from delivering or performing due to circumstances for which it is not responsible, and by a reasonable start-up period after the end of the hindrance. These circumstances also include force majeure and industrial action. Deadlines shall be deemed to be extended by the period during which the customer fails to provide cooperation in breach of the contract, e.g. by not providing information, not granting access, not providing equipment or not making employees available.

3. If the contracting parties subsequently agree on other or additional services that affect the agreed deadlines, these deadlines shall be extended by a reasonable period.

4. Reminders and deadlines set by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only reasonable in cases of particular urgency.

5. The place of performance for services is the place where the service is to be provided. Otherwise, the place of performance for all services arising from and in connection with this contract is the registered office of INspares GmbH. 
   
   

§ 6 Contractual commitment and termination

1. Software subscriptions run for an indefinite period. They can be terminated for the first time at the end of the twelfth month after conclusion of the contract and thereafter on a monthly basis with four weeks’ notice to the end of each month. The right to terminate without notice for good cause remains unaffected. Termination must always be in writing. 

2. Any termination of the further exchange of services (e.g. in the event of withdrawal, reduction, termination for good cause, compensation in lieu of performance) must always be threatened with a statement of the reason and a reasonable deadline for rectification (except in emergencies, at least two weeks) and can only be declared within two weeks of the expiry of the deadline. In cases prescribed by law (cf. Section 323 (2) BGB), the setting of a deadline may be omitted. The party wholly or predominantly responsible for the disruption may not demand rescission. 

3. All declarations in this context must be made in writing to be effective.
   
   

§ 7 Remuneration, payment

1. The agreed remuneration is due without deduction after delivery of the software (for training courses after completion of the training) and receipt of the invoice by the customer and is payable within 14 days.

2. Travel costs, expenses and accessories shall be reimbursed additionally according to expenditure. Additional services requested by the customer (e.g. advice and support with programme installation) shall be invoiced according to the current price list of INspares GmbH. An increase in the currently applicable list prices is limited to 8% per year.

3. Value added tax shall be added to all remuneration.

4. The customer may only offset claims that have been recognised in writing by INspares GmbH or have been legally established. Except in the area covered by Section 354a of the German Commercial Code (HGB), the customer may only assign claims arising from this contract to third parties with the prior written consent of INspares GmbH. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within this contractual relationship. 
   
   

§ 8 Obligations of the customer

1. The customer is obliged to examine all delivery items from INspares GmbH immediately upon delivery or upon making them available in accordance with commercial law regulations (§ 377 HGB) and to report any defects found in writing, providing a detailed description of the defect. The customer shall thoroughly test each module for usability in the specific situation before commencing productive use. This also applies to software that the customer receives after the initial delivery, for example within the scope of a warranty or a maintenance contract.

2. The customer shall take appropriate precautions in the event that the programme does not function properly, either in whole or in part (e.g. by backing up data, documenting software use, diagnosing faults, regularly checking results, contingency planning). It is the customer’s responsibility to ensure that the programme’s working environment is functional.
   
   

§ 9 Material defects

1. Upon transfer of risk, the software shall have the agreed quality and shall be suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. It shall meet the criterion of practical suitability and shall have the quality customary for software of this type; however, it shall not be error-free. A functional impairment of the programme resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall not be taken into account.

2. In the event of material defects, INspares GmbH may initially provide subsequent performance. Subsequent performance shall be carried out at the discretion of INspares GmbH by remedying the defect, by delivering software that does not have the defect, or by INspares GmbH demonstrating reasonable options for avoiding the effects of the defect. At least three attempts at rectification shall be accepted in the event of a defect. An equivalent new program version or the equivalent previous program version without the error shall be accepted by the customer from if this is reasonable for the customer. The installation of software (patches or new versions) is the responsibility of the customer.

3. The customer shall support INspares GmbH in analysing the error and rectifying the defect, in particular by describing any problems that arise in detail, providing INspares GmbH with comprehensive information and granting it the time and opportunity necessary to rectify the defect. INspares GmbH may, at its discretion, rectify the defect at the customer’s premises, at its own premises or by remote maintenance. The customer shall provide the necessary technical requirements at its own expense and grant INspares GmbH online access to the software after prior notification.

4. The customer must report faults immediately using the contact details provided in advance (ot360-support@inspares.de ). Fault reporting and rectification is guaranteed from Monday to Friday (except national holidays) between 8:00 a.m. and 6:00 p.m. 

The following service levels apply: 

1. Serious malfunctions (where it is not possible to use the software as a whole or a main function of the software) will be rectified by INspares GmbH even outside service hours within 2 hours of receipt of the malfunction report at the latest, provided that the report is made during service hours. If it is foreseeable that the malfunction cannot be rectified within this period, INspares GmbH will inform the licensee immediately and notify them of the expected delay. 

2. Other significant faults (main or secondary functions of the software are disrupted but can still be used, or other faults that are not insignificant) will be rectified within 24 hours during service hours at the latest. 

3. The rectification of minor faults is at the discretion of INspares GmbH.

5. The deadlines specified in paragraph 4 shall commence with an error report in accordance with § 8 (1). § 5 (2) and (3) shall apply to the calculation of deadlines. In the event of a disagreement regarding the classification of an error into the categories specified in paragraph 4, the customer may request that the error be classified into a higher category. The customer shall reimburse INspares GmbH for the additional expense if they cannot prove that their classification was correct.

6. INspares GmbH may demand compensation for additional expenses incurred as a result of the software being modified, used outside the specified environment or operated incorrectly. It may demand reimbursement of expenses if no defect is found and the customer did not raise the complaint without negligence. The burden of proof lies with the customer. Section 254 of the German Civil Code (BGB) applies accordingly. The amount of the claim by INspares GmbH is based on its price list. 

7. If INspares GmbH definitively refuses to provide subsequent performance, or if this definitively fails or is unreasonable for the customer, the customer may either withdraw from the contract within the scope of § 6 or reduce the remuneration appropriately and additionally demand compensation or reimbursement of expenses in accordance with § 11. The claims shall become time-barred in accordance with § 12.
   
   

§ 10 Legal defects

1. INspares GmbH warrants that no third-party rights prevent the customer from using the software in accordance with the contract. In the event of defects of title, INspares GmbH shall provide a warranty by providing the customer, at its discretion, with a legally flawless option for using the software or equivalent software.

2. The customer shall notify INspares GmbH immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. INspares GmbH shall support the customer in its defence against the attacks of third parties by providing advice and information.

3. § 9 (2), (6) and (7) shall apply accordingly.
   
   

§ 11 Liability

1. INspares GmbH shall pay damages or reimburse futile expenses, regardless of the legal basis (e.g. from legal transactions and legal transaction-like obligations, material defects and defects of title, breach of duty and tort), only to the following extent:

1. INspares GmbH shall be liable without limitation in cases of intent, gross negligence and culpable injury to life, limb or health; 
2. Notwithstanding the cases of unlimited liability pursuant to § 11 (1) (a), INspares GmbH shall only be liable for slightly negligent breaches of duty in the event of a breach of essential contractual obligations, i.e. obligations whose fulfilment is essential for the proper execution of the contract or whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the other party may regularly rely, However, this is limited to damage that was foreseeable at the time the contract was concluded and is typical for this type of contract. 
3. The limitations of liability under a. and b. do not apply to liability under the Product Liability Act or within the scope of guarantees assumed in writing by INspares GmbH. 
4. INspares GmbH reserves the right to raise the defence of contributory negligence. In particular, the customer has a duty to back up data and defend against malware in accordance with the current state of the art. 

3. The total liability of INspares GmbH, regardless of the legal basis, is limited to the amount that the customer has paid for the licence fee for the software in question within the last 12 months. 
   
   

§ 12 Limitation period

1. The limitation period for claims under § 9 – § 11 is: 

1. for material defects, six months for claims for repayment of the rental price due to withdrawal or reduction. The limitation period begins when the software is made available. In the case of updates or upgrades, the limitation period also begins when they are made available. 
2. one year for other claims arising from material defects;
3. for claims arising from defects in title, two years if the defect in title does not lie in a right of a third party on the basis of which the third party can demand the return of the items specified in § 3 (5) or demand that their use be discontinued;
4. two years for claims for damages or reimbursement of futile expenses not based on material defects or defects of title; the period begins at the point in time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.
5. The limitation period shall commence at the latest upon expiry of the maximum periods specified in Section 199 of the German Civil Code (BGB). Paragraph 1 shall not apply to claims for damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in Section 11 (3). 
   
   

§ 13 Commencement and end of the customer’s rights

1. Ownership of delivered items and the rights under § 4 shall only pass to the customer upon full payment of the contractual remuneration. Prior to this, the customer shall only have a provisional right of use under the law of obligations, which may be revoked in accordance with paragraph 2.

2. INspares GmbH may terminate the rights under § 4 for good cause under the conditions set out in § 6. An important reason shall be deemed to exist if, taking into account all circumstances of the individual case and weighing the interests of both parties, INspares GmbH cannot reasonably be expected to allow the software to remain with the customer on a permanent basis, in particular if the customer is in material breach of § 4. Only the statutory provisions shall apply to the reversal of the contract due to default of payment by the customer.

3. If the rights under § 4 do not arise or if they expire, INspares GmbH may demand that the customer return the items provided or provide written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the items and written assurance that this has been done.
   
   

Section 14 Confidentiality and data protection

1. The contracting parties undertake to treat as confidential, even after the end of the contract, all items (e.g. software, documents, information) received or disclosed to them by the other contracting party before or during the execution of the contract which are legally protected or contain business or trade secrets or are designated as confidential, unless they are publicly known without violating the obligation of confidentiality ( ). The contracting parties shall store and secure these items in such a way that access by third parties is excluded.

2. The customer shall only make the contractual items accessible to employees and other third parties who need access to them in order to perform their duties. The customer shall instruct these persons about the confidentiality of the items.

3. INspares GmbH shall process the customer’s data required for business transactions in compliance with data protection regulations. INspares GmbH may name the customer as a reference customer after successful completion of the services.
   
   

§ 15 Training

1. Training courses are held at INspares GmbH. The customer may have the training course held on its premises if it provides the necessary technical equipment. In this case, the customer shall also pay for the travel time and travel expenses of the training personnel in accordance with the current price list of INspares GmbH.

2. INspares GmbH may cancel a training date for good cause. INspares GmbH shall notify the customer of the cancellation of a date in good time and offer alternative dates.
   
   

§ 16 Work performance; acceptance; warranty 

1. The following provisions of this § 16 shall apply in addition to work performance, in particular the recording and registration of the electronic components available at the customer’s premises. 

2. Completed contracts for work and services must be accepted. The customer may not refuse acceptance due to minor defects. If the customer does not expressly accept or refuse acceptance, either explicitly or through conclusive action, and if the customer has taken the service or part of the service into use , acceptance shall be deemed to have taken place 14 days after the start of use, unless otherwise agreed. 

3. The customer shall inspect the services provided by INspares GmbH immediately after delivery, in particular with regard to their completeness. Any defects discovered in the course of this inspection must be reported to INspares GmbH in writing without delay. The notice of defects must contain as detailed and specific a description of the defects as possible. Defects that could not be detected during the proper inspection must be reported in writing immediately after discovery. This notice of defects must also contain as detailed and specific a description of the defects as possible. 

4. If the customer fails to report defects immediately, they shall be excluded from asserting claims for subsequent performance. In such cases, the customer may only claim damages to the extent that the damage is not due to the delayed notification of defects.
   
5. INspares GmbH shall be liable for work performed within the scope of its statutory obligation to provide subsequent performance as follows:
   
6. Subsequent performance shall be free of charge. The place of performance for subsequent performance shall be the registered office of INspares GmbH, unless it is impossible to perform the subsequent performance at the registered office of INspares GmbH.
   
7. Notwithstanding § 12, claims for subsequent performance shall become time-barred within 12 months. In the case of services that are of a continuing nature, withdrawal shall be replaced by termination without notice. 
   
   

§ 17 Final provisions

1. There are no verbal or written side agreements to this contract. Amendments to this contract and its annexes must be made in writing. The same applies to amendments to this written form agreement. 

2. The law of the Federal Republic of Germany shall apply, excluding conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods. 

3. The place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the registered office of INspares GmbH .