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General Terms and Conditions (GTC) and Supplementary Terms and Conditions (STC)

 

Status: 01/2020

A. General Terms and Conditions (GTC)

1.Product Provider and Validity GTC
1.1. The provider of the products and the contractual partner of the customer is azeti GmbH (hereinafter "AZETI"), Invalidenstr. 112, 10115 Berlin (Berlin Charlottenburg District Court, HRB 199975 B).

1.2. These AZETI terms and conditions apply exclusively. Deviating or supplementary conditions of the customer are hereby rejected; they only apply upon the express written consent of AZETI (Section 127, para. 2 of the German Civil Code).

1.3. The contract language is German.

2. Range of services and object of the contract
2.1. AZETI's range of services is aimed exclusively at natural or legal persons or legal entities that, in accordance with Section 14 of the German Civil Code (BGB), enter into a legal transaction for purposes which can be attributed to their commercial or independent
professional activities (also "customer" in these GTC and EGB).

2.2. The object of the contract results from these general terms and conditions, the supplementary terms and conditions that apply only in the specific scope of the regulations, and from the provisions made in the service descriptions of the respective offers on the acquisition of hardware components, the acquisition and use of application and/or control software and/or the commissioning of peripheral services (e.g. software maintenance or training), hereinafter also referred to as "products". Subsidiary agreements or contract changes require the written consent of AZETI's management to be effective.

2.3. Unless expressly stated otherwise in the offer, no specific achievement resulting from AZETI's services is due.

2.4. Unless otherwise expressly agreed in writing, AZETI can also use the services of suitable third parties to fulfil its contractual obligations. In this case, AZETI is liable for these third parties just as it is for its own vicarious agents.

2.5. Unless otherwise stated in the following provisions or mandatory legal regulations, the customer can only transfer contractual rights and obligations to a third party with AZETI's prior express consent in writing (Section 127, para. 2 of the German Civil Code).

3. Conclusion of contract
3.1. The written offer to customers is deemed confirmed if the services offered have been countersigned without changes by signature. Transmission by telecommunication is sufficient to ensure the required written form (Section 127, para. 2 of the German Civil Code). A separate written order confirmation by the customer only applies if there is a clear reference (mention of the number and the date of the offer/order).

3.2. Unless otherwise stated, the respective offer is only valid for up to four weeks after receipt of the offer.

3.3. Written order confirmations from AZETI replace an order from the customer unless an objection is made in writing within two weeks; If necessary, AZETI will explicitly point out the meaning of a lack of objection in the order confirmation.

4. General obligations of the customer
4.1. Insofar as AZETI provides the customer with personal access data (e.g. for the activation of application or control software via license keys) or enables their generation, these must not be passed on to third parties and must be kept protected from access by third parties.

4.2. The customer is obliged to grant AZETI any access to hardware and software that is necessary for the provision of services and support and to provide all available information or data necessary for or relevant to the respective service provision in good time, to provide all necessary information in good time, and to inform AZETI immediately of all contract-related processes and circumstances (e.g. disruptions or misuse, changes in the customer's application, network or software environment). This also applies in particular to documents, processes and circumstances that become known only after AZETI has begun providing the service.

5. Remuneration and terms of payment
5.1. Unless otherwise agreed, the remuneration is based on AZETI's price list valid at the time the contract is concluded, which can be viewed by the customer at any time on request.

5.2. Settlement takes place according to the payment method specified in the offer. Unless otherwise stated, invoices are due immediately and without deductions. If a payment date has not been agreed, the date that the default commences is based on the statutory provisions. Remuneration and incidental costs are basically net prices plus statutory taxes and duties.

5.3. Monthly prices are to be paid pro rata temporis for the rest of the month, starting on the day the service is provided and ready for operation. After that, these prices are to be paid monthly in advance. If the price is to be calculated for portions of a calendar month, this is calculated proportionally for each day. A full monthly price will be charged if the customer effectively terminates the contractual relationship before a month ends; this does not apply to termination for good cause. Other prices, in particular usage-dependent prices, are payable after the service has been provided.

5.4. The customer must raise objections to the invoicing of the services provided by AZETI in writing within four weeks after receipt of the respective invoice with the office specified on the invoice. After the expiry of the aforementioned period, the settlement is deemed approved by the customer. AZETI will specifically inform the customer of the importance of their behaviour when sending the invoice.

5.5. The customer is only entitled to offset if his/her counterclaim has been legally established or is undisputed. The customer is only entitled to assert a right of retention due to counterclaims arising from the respective contractual relationship.

5.6. The customer, as the recipient of the invoice, agrees to electronic invoicing within the meaning of Section 14, para. 1, sentence 8 of the German Turnover Tax Act. As an invoice issuer, AZETI is free to decide how electronic invoices are to be transmitted. Electronic invoices can be sent e.g. by email (possibly with an image file or text document attachment) or De-Mail, by computer fax or fax server, by web download or by EDI.

6. Default
6.1. In the event of a significant default in payment, AZETI is entitled to withhold services at the customer's expense.

6.2. If monthly payments have been agreed upon with the customer, the customer remains obliged to pay the monthly prices in the event of default. If the customer enters into default
6.2.1. for two consecutive months on the payment of the prices or a not insignificant portion of the prices or
6.2.2. in a period that lasts for more than two months, with the payment of the prices reaching an amount equivalent to the basic monthly price for two months, AZETI can terminate the contractual relationship without adhering to a deadline or withdraw from the contract.

6.3. AZETI is free to assert further legal claims due to late payment.

7. Liability for defects (warranty)
7.1. Unless otherwise stipulated below or in relevant supplementary terms and conditions (STC), there are statutory rights of liability for defects.

7.2. Only the performance specifications from AZETI and/or the product description of the manufacturer are deemed as agreed upon as the condition of the products, but not other advertising and public promotions

7.3. The no-fault liability for damages for defects that already existed when the contract was concluded is excluded.

7.4. The customer will support AZETI in the detection and rectification of defects.

8. Data communication
According to the current state of the art, data communication via the Internet cannot be guaranteed to be error-free and/or available at all times. Irrespective of the contractual performance obligations, AZETI is not liable for the constant or uninterrupted availability of the contact and support options offered on the AZETI website.

9. Support
9.1. Unless otherwise contractually agreed on, a service desk is available to the customer on the website www.azeti.net as a straightforward online help system, as well as a support email on working days from 9 a.m. to 12 p.m. and 1 p.m. to 5 p.m. Both support services serve exclusively to support the customer in making use of the services owed by AZETI under this contract.

9.2. The support services are also made available to other customers. Customer inquiries are processed in the order in which they are received. Error reports are to be submitted to the help desk specified in the service description.

10. General liability
10.1. AZETI is fully liable in the event of intentional or gross negligence, as well as in the absence of a guaranteed property, for all damage attributable to this. In the event of slight negligence, AZETI is fully liable in the event of injury to life, limb and health. In addition, AZETI is only liable for slight negligence if an obligation is violated, the fulfilment of which enables the proper execution of the contract in the first place, the breach of which jeopardises the achievement of the purpose of the contract, and on which the customer can regularly rely on compliance (so-called cardinal obligation). In the event of a breach of a cardinal obligation, liability is limited to the foreseeable damage typical of the contract. This also applies to lost profits and savings. Liability for any other damage caused by a defect is excluded.

10.2. Liability for all other damage is otherwise excluded. Liability according to the provisions of the Product Liability Act remains unaffected.

11. Data protection by AZETI
11.1. AZETI processes the customer's personal data in accordance with the data protection regulations of the German Federal Data Protection Act (“BDSG”) in the version applicable from May 25, 2018 and Regulation (EU) 2016/679 (General Data Protection Regulation - "GDPR") .

11.2. Information and notes about the processing of personal data when using the services of AZETI and about the rights of the customer in relation to this processing can be found in AZETI's data protection information at https://azeti.net/en/datenschutz.

11.3. Before starting to use contractual services, the customer undertakes to check whether, when the services are used, personal data is processed on behalf of the customer as the person responsible within the meaning of Art. 4, no. 7 of the GDPR. If so, the following applies:
11.3.1. The customer is also obliged to use the contractual services to conclude a contract for processing of personal data (AVV) with AZETI as an order processor in accordance with Art. 28 of the GDPR. AZETI expressly offers the customer such a contract; the corresponding offer can be requested under https://azeti.net/en/bestellung.
11.3.2. The contractual right to begin using contractual services by the customer is subject to the conclusion of a Contract for Processing of Personal Data.

11.4. Insofar as the customer makes use of AZETI's services without first having called up the offering of an AVV in accordance with Section 13.2.1, AZETI can rely on the fact that, according to the results of the customer's previous check, there is no order processing within the meaning of Art. 28 GDPR. If this is not the case, the customer will exempt AZETI from all claims by third parties (in particular according to Art. 82 GDPR), which nevertheless are based on the illegal processing of personal data in the order, and AZETI is entitled to immediately block the software functionalities; AZETI reserves the right to assert further claims.

12. Confidentiality and customer reference
12.1. The contracting parties undertake to protect the confidential information disclosed by the other party from third-party access, at least taking into account the care customary in their own affairs. The parties further undertake to keep the confidential information disclosed by the other party confidential and, in particular, not to pass it on to third parties; the parties will take all necessary steps to prevent unauthorised disclosure of the confidential information to third parties. "Confidential information", regardless of its embodiment and the type of transmission (oral, electronic or in writing), is all information transmitted or received, in particular all operational information, file notes, analyses, data, file structures, procedures, documents, correspondence, materials, drawings, compilations, studies, codes, product and process-related know-how or other business documents, which has already been made available by the disclosing party with regard to the contractual relationship and/or will still be made available during its term. The parties do not have to expressly designate the confidential information as such; in case of doubt, it includes all information and data disclosed in the manner described above, unless this agreement stipulates otherwise.

12.2. “Third parties” in the sense of No. 12.1, sentence 1 are not
12.2.1. mandated professionals subject to confidentiality (e.g. lawyers) or
12.2.2. employees, colleagues and affiliated companies within the meaning of Section 15 et seq. of the German Stock Corporation Act who demonstrably need access to the confidential information to carry out the mutual contractual obligations and who in turn have been obliged to maintain confidentiality by means of a suitable confidentiality obligation before they receive access to the confidential information, as well as
12.2.3. subcontractors of a party, provided that it can be demonstrated beforehand that the subcontractor treats the confidential information entrusted to it in accordance with the obligations to this provision. As far as the groups of people specified under Nos. 12.2.2. and 12.2.3 who have access to or gain knowledge of personal data based on their tasks, they are also responsible for maintaining the confidentiality of personal data and are to oblige to in accordance with Art. 5, para. 1 f, Art. 32, para. 4, as well as Art. 28 of the GDPR. The parties expressly declare to take responsibility for any culpable breach of confidentiality of the group of persons named in Sentence 1 under Nos. 12.2.2. and 12.2.3 and in Sentence 2.

12.3 Apart from the use determined according to the respective contractual purpose, the parties mutually undertake not to use the confidential information of the other party in any way for their own purposes or for the purposes of third parties. If a party becomes aware that confidential information has been passed on or used contrary to this confidentiality agreement, the party must inform the other party immediately.

12.4 The confidentiality agreement does not record such information
12.4.1 which is already publicly known at the time of availability or becomes publicly known during the term of the contract without the other party being responsible for this, or
12.4.2 which the other party can prove that they already knew about or was in their possession at the time of disclosure and was not known or made known directly or indirectly with the obligation to maintain secrecy in this respect, or
12.4.3 which the other party becomes aware of during the contract without violating a confidentiality agreement, legal regulations or official orders, or
12.4.4 which must be made known to third parties due to a legal obligation, judicial decision or official order; in this case, the party obliged in this way will immediately inform the other party of this obligation.

The burden of proof for the existence of these exceptions rests with the party wishing to invoke these exceptions. If one party already knows or becomes aware of the confidential information provided, it will immediately notify the other party in writing.

12.5. If a contracting party requests this, the documents submitted by it must be returned to them after the end of the contractual relationship, insofar as the other contracting party cannot assert a legitimate interest in these documents or conflict with the statutory provisions.

12.6. AZETI may name the customer as a reference customer on its website or in other media.

13. Changes to terms and conditions and prices
13.1. If AZETI intends to change the general terms and conditions and/or price for permanent obligations, the changes will be communicated in writing at least six weeks before they become effective. In the event of changes, the customer has a special right of termination at the time the changes take effect.

13.2. If the customer does not give written notice of termination within six weeks after receipt of the change notification, the changes become part of the contract at the time they take effect. AZETI will explicitly inform the customer of this consequence in the change notification.

14. Contract term and termination
14.1. Unless expressly agreed otherwise, the following regulations apply to the contractual terms and notice periods with regard to permanent obligations:
- Contracts with minimum contract terms: The minimum contract term is two (2) years and, unless otherwise agreed, begins with notification of the operational provision of the services to the customer. The contractual relationship can be terminated in writing for both contractual partners with a notice period of three months at the earliest at the end of the minimum contract term. If there is no termination, the contract term is extended by one year. The mere change in the number of licenses does not affect the contract term.
- Contracts without a minimum contract term: The contractual relationship without a minimum contract term can be terminated in writing for both contracting parties at the end of each month with a notice period of six working days (Saturday is not considered a working day). If the customer terminates the contractual relationship before one month has passed after operational provision, he or she must pay a monthly price.

14.2. For partial termination of services, such as the change in the number of licenses, the aforementioned dates and deadlines also apply.

14.3. The right to terminate the contract for good cause remains open to both parties.

14.4. Termination can be made in writing by letter, fax or email.

15. Retention of title
15.1. AZETI retains ownership of the delivered products (hardware) until full payment of all claims existing at the time of delivery or arising later from this contractual relationship, for payment by check or bill of exchange until redemption.

15.2. If the customer is in arrears with payment or if there is a significant breach of diligence or custody obligations, the assertion of the retention of title by AZETI does not count as a withdrawal from the contract, unless AZETI expressly notifies the customer of this.

16. Other
16.1. The assignment of claims is only permitted with the prior written consent of the other contracting party. The consent must not be unreasonably denied. The regulation of Section 354 a of the German Commercial Code remains unaffected.

16.2. The entire business relationship between AZETI and the customer is subject exclusively to the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

16.3. The place of fulfilment and exclusive place of jurisdiction for all disputes arising from this contract is the business location of AZETI in Berlin, provided that the customer is a merchant or legal entity under public law or has no general place of jurisdiction in the territory of the Federal Republic of Germany. AZETI is also entitled to file a claim in any other legally appointed place of jurisdiction.

 

B. Additional conditions for online contracts

1. Object of the contract
The object of this additional customer information is the purchase of products by entrepreneurs within the meaning of Part A, no. 2.1 via distance selling on the Internet at www.azeti.net.

2. Conclusion of contract
2.1 The online products shown on the AZETI website each represent a non-binding offer to the customer to purchase the products described there. The online registration and order completion required for this is subject to the condition that the customer is carrying out a commercial or independent professional activity. The customer must therefore indicate the type of business and the company website when registering.

Consumers are excluded from registration.
 

2.2 In the course of the ordering process, the customer enters their mandatory contact and billing data (company, type of business, company website, contact person, email and invoice address) and their respective offer selection. The customer only makes a binding offer to conclude a contract by clicking on the "commit to order at cost" button.

2.3 The immediate confirmation of the receipt of the order by e-mail does not yet constitute acceptance of this offer. AZETI is entitled to accept the customer's offer within three (3) working days by sending an order confirmation via e-mail. After this period has expired without result, the customer's offer is deemed to have been rejected, i.e. the customer is no longer bound by his offer.

3. Customer information: storage of order data, instructions for use
3.1 The customer's order with details of the contract concluded (e.g. type of product, price, etc.) will be saved by us. Unless otherwise stated in the offer, the customer has no access to his/her past orders via the Internet.

3.2 These GTC/STC are sent to the customer with the order confirmation, but can also be accessed at any time via the website www.azeti.net/en/agb.

3.3 The customer can save the product description on the AZETI website at any time for his/her own purposes by taking a screenshot at the time of the order, for example, or alternatively printing out the whole page.

4. Customer information: correction notice
4.1 The customer can correct his/her entries on the Internet at any time before placing the order with the delete key. We inform the customer along the way during the ordering process about further correction options.

4.2 The customer can completely end the ordering process at any time before placing his/her order simply by closing the browser window.

 

C. Additional terms and conditions for software rental

1. Object of the contract and copyrights
1.1. The object of these supplementary terms and conditions is the granting of rights of use (licenses) for contractual software in accordance with Part A, no. 2.2 and, if applicable, associated documentation for a certain period of time.

1.2. The software provided by AZETI in accordance with Part A, no. 2.2 is protected by international copyright laws, contracts and other laws. Subject to the following provisions, AZETI reserves all rights and claims to the software, including all copyrights, patents, trade and business secrets, brands and other intellectual property rights. Unless expressly stated otherwise in the offer, these business terms do not transfer to the customer any exclusive right to use, exploit or process the software. With the exception of the following provisions, the customer does not acquire any rights to the software.

1.3. The customer is not permitted to change, adapt or decompile, decode, reverse-engineer or attempt to use source code or underlying ideas, algorithms, file formats or programming that has been made available exclusively for temporary use, or to try to reconstruct or determine interoperability interfaces of the product or files contained in the product or created when using the product, or otherwise trace the product back to a human-readable form.

1.4. The customer may not circumvent technical measures to protect the software or have a process for circumventing it applied or provide it.

2. Rights of use
2.1. Server-based software (SaaS):
2.1.1. The customer or the user appointed by him/her receives the non-exclusive, non-transferable right, limited to the period of use or contract term, to access via the internet the software functionalities to the extent described in more detail in the service description for the offer and according to the conditions and system compatibilities specified there. The customer does not receive any further rights. In the event of use by the customer which nevertheless exceeds the contractually agreed scope by more than 10%, AZETI can block the customer's internet access (account) without further notice until the customer can prove that a remedy has been applied; other AZETI rights remain unaffected.
2.1.2. The customer must pay the prices that have arisen through the users appointed and authorised by him. The same applies in the case of unauthorised use by other third parties if and insofar as the customer is responsible for this use.

2.2 Client-based software:
Upon the conclusion of the contract, the customer has the non-exclusive, non-transferable right, limited to the period of use or contract term, to download the client software for establishing a connection to the AZETI web servers on a contractually determined number of data processing devices (workstations) in order to be able to use the products offered via a remote data connection (internet).

2.3 Standalones:
Upon the conclusion of the contract, the customer has the non-exclusive, non-transferable right, limited to the period of use or contract term, to install the software on a contractually determined number of data processing devices (workstations) and to use the relevant functions.

2.4 Additional provisions for server and client-based software:
2.4.1 Subject to the express agreement of another service level, AZETI provides the customer with use at the server-side transfer point with the availability and quality values defined in the service description. AZETI is only responsible for availability to the extent that the non-availability is due to the part of the network operated by it or the AZETI web or communication server itself. AZETI does not owe the establishment and maintenance of the data connection between the respective end device or IT system of the customer and the server-side transfer point operated by AZETI.
2.4.2 Regular maintenance work is necessary to ensure the availability of all services provided; AZETI can interrupt the service provision for a defined period of time in order to carry out maintenance work. AZETI will inform the customer of the respective time and the expected duration of the maintenance work at least three working days in advance. As far as possible, AZETI will take the interests of the customer into account when planning maintenance times. These regular maintenance times are not considered to impair availability in the aforementioned sense.

2.5 Additional provisions for stand-alone and client-based software:
2.5.1 In the event of usage limited to the contract term, the customer is obliged to delete the software after the contract has ended.
2.5.2 Unless otherwise agreed in writing, the object of the contract is not a network license (multi-user license), but the right of use is limited to a single device. If the hardware is changed, the software already installed must be completely deleted from the hardware previously used. Concurrent storage, holding or use on more than one hardware unit is not permitted.
2.5.3 If a network license is part of the object of the contract, this right of use applies only to the agreed number of individual locations in the contractually determined local network. The customer is obliged to take appropriate measures to prevent any unauthorised use by third parties, in which case branches, companies associated with the customer as a licensee, shareholders or spatially or organisationally separate facilities of the same carrier are also considered to be "third parties".
2.5.4 The customer is not entitled to use the software beyond the use permitted in accordance with this contract or to have it used by third parties or to make it accessible to third parties. In particular, the customer is not permitted to copy, edit or sell the software or parts thereof.

2.6 Insofar as AZETI provides the customer with software from third-party providers as a fixed or optional service component, additional special regulations may apply, in particular with regard to the rights of use. In this case, AZETI informs the customer of these regulations when the contract is concluded and makes them available to him/her, also in electronic form if necessary. Other third-party software can also be hosted at the customer's request in accordance with the service description or based on separate agreements. The customer is responsible for ensuring that appropriate usage rights exist for this third-party software and its updates, and that provision by AZETI is permitted. Unless expressly stated otherwise in the offer, AZETI does not acquire its own rights of use for the third-party software and does not enter into a contractual relationship with the manufacturer. Effects on the stability of contractual services by hosting third-party software cannot be excluded. This applies in particular when updating to new versions. Any restrictions and expenses that may arise as a result must be borne by the customer.

2.7 Unless otherwise expressly agreed, the contractual object is the use of standard software that has not been developed or manufactured individually for the needs of the customer. The customer is obliged not to change or edit, copy or reproduce client software, standalones and/or provided text materials (codes, documentation) him/herself or through third parties. Any rights of the customer according to Sections 69d, paragraphs 2 and 3 and 69e of the German Copyright Act (UrhG) remain unaffected.

3. Retention of title
Unless expressly agreed otherwise, any access components (e.g. USB stick, security token) that are provided remain the property of AZETI; the customer only has a right of ownership for the duration of the contractual relationship.

4.1 Technical requirements
4.1. Error-free usage of the software depends on the fact that the hardware and operating software employed by the user on end devices, routers, data communication equipment, etc., corresponds to the minimum technical requirements for use of the software version currently offered, which the user can find current descriptions of in the system requirements.

4.2. Unless specifically stated in the offer, the configuration or adaptation of the IT system is the sole responsibility of the customer. AZETI offers support to the customer for a fee based on a separate agreement.

5. Data communication
The customer undertakes, if necessary, to establish a data connection between the end devices intended for use and the data transfer point defined by AZETI. AZETI is entitled to redefine the data transfer point at any time if this is necessary to enable the customer to use the services seamlessly. In this case, the customer will establish a connection to the newly defined transfer point.

 
 
D. Supplementary terms of use for the sale of software

1. Object of the contract
1.1 The object of these supplementary terms and conditions is the granting of rights of use (licenses) for contractual software and any associated documentation in accordance with Part A, no. 2.2. They also apply to all updates and upgrades insofar as AZETI provides the customer with these after installing the software updates.

1.2 The software offered by AZETI in accordance with Part A, no. 2.2 is protected by international copyright laws, contracts and other laws. Subject to the following provisions, AZETI reserves all rights and claims to the software, including all copyrights, patents, trade and business secrets, brands and other intellectual property rights. These terms and conditions do not transfer to the customer any exclusive right to use, exploit or edit the software. With the exception of the following provisions, the customer does not acquire any rights to the software.

2. Object of the license
2.1 Unless otherwise agreed in writing, contractual software is exclusively standard software
that has not been individually developed or manufactured for the needs of the customer.

2.2 The software provided by AZETI represents the current state of the art and corresponds to the product information and specifications made available by AZETI or its sales partners, including the information in the user documentation that is made available to the customer upon delivery. AZETI does not guarantee that the software is suitable for purposes that go beyond the fulfilment of contractual obligations.

2.3 In the case of standard software from third-party manufacturers, AZETI provides the customer with the manufacturer's original user documentation; AZETI is not obliged to deliver any additional documentation. Upon request, the customer can inspect the original user documentation to be delivered before the contract is concluded.

2.4 According to the respective provision of the offer, the transfer of the object code of the software takes place either as a download, is preinstalled on the contractual hardware component or is transferred through another programme or data carrier. There is no entitlement to any other disclosure of the object code or disclosure of the source code.

2.5 If necessary, the customer must enter a specific license key on the data carrier during the activation of the software, which is made available to the customer after the purchase by AZETI and which authenticates the customer's authorisation to use the software in accordance with the contract.

3. Rights of use
3.1 If the delivery of standard software from a third party is part of the object of the contract, its terms of use apply: AZETI only provides the license agreement, which is concluded directly between the manufacturer and the customer. These terms of use are made available to the customer in electronic form upon request before the contract is concluded. These license conditions are recognised by the customer upon use and are the object of the contract.

3.2 Only insofar as it is not apparent from the terms of use in accordance with the aforementioned No. 3.1, or if the contractual agreements with the customer indicate otherwise, the following terms of use apply:

3.3 The customer receives the unlimited, non-transferable and non-exclusive right to use the software. Unless otherwise agreed in writing, the right of use for software that is preinstalled on contractual hardware components is limited to the respective hardware component as a data carrier. If the hardware is changed, the software must be completely deleted from the hardware previously used. Concurrent storage, holding or use on more than one hardware unit is not permitted.

3.4 The customer is not entitled to use the software in any form beyond the above statement in No. 3.1 to 3. 3. or to have it used by third parties or to make it accessible to third parties. Third parties are not those who are vicarious agents of the customer and who make use of the services free of charge, such as employees of the customer, freelancers in the context of the contract, etc. In particular, the customer is not permitted to reproduce or edit the software or parts thereof, to make it publicly available or to sell it, to perform retranslation of provided programme codes into other code forms (decompilation) as well as other types of reclassification of the various production stages of the software (reverse engineering).

3.5 The rights of the customer from Section 69d and Section 69e of the German Copyright Act remain unaffected.

3.6 Copyright notices, serial numbers and other features serving to identify the programme may under no circumstances be removed or changed. The same applies to the suppression of such features on the screen.

4. Resale and subleasing
4.1 The customer may permanently sell or give away the software, including the user documentation and other accompanying material, to third parties, provided the acquiring third party also declares his/her consent to the continuation of these contractual terms. In the event of a transfer, the customer must hand over to the new user all programme copies, including any existing backup copies, or destroy the copies that have not been handed over. As a result of the transfer, the customer's right to use the software expires. If the software is resold, the customer is obliged to notify AZETI in writing of the name and full address of the new user.

4.2 The customer may transfer the software, including the user manual and other accompanying material, to third parties on a temporary basis, unless this is done by way of rental for commercial purposes (e.g. application service providing, software as a service, etc.) or leasing, and the third party has also given his/her consent to the continuation of the present contractual terms, and the customer transfers all programme copies, including any existing backup copies, or destroys the copies that have not been transferred. The customer has no right to use the programme once the software is handed over to the third party. Renting for
commercial purposes (e.g. application service providing, software as a service, etc.) or leasing is not permitted.

4.3 The customer may not hand over the software to third parties if there is reasonable suspicion that the third party will violate the terms of the contract, in particular make unauthorised copies. This also applies to the customer's employees.

5. Warranty (liability for defects)
5.1 The customer agrees that, based on the current state of the art, standard software cannot be delivered completely free of errors, and that AZETI is not responsible for this. Contractual software is thus deemed to be free of defects if it works in accordance with the information provided by AZETI and/or the manufacturer's product description. The functionality of the software is initially based on the content in the respective product description and any additional agreements that may have been made. Otherwise, the software must be suitable for the use stipulated in this contract and must also be of a quality that is common in software of the same type.

5.2 Defects in the delivered software (material and legal defects), including the manuals and other documents, will be remedied by AZETI within the warranty period of one year starting with the handover after the customer has given the appropriate notification. At AZETI's option, this is done by eliminating the defect (rectification) or by supplying defect-free software (replacement delivery). If the software is to be returned to the supplier for the purpose of reworking or replacement delivery, the customer will be responsible for the transport costs incurred.

5.3 In the case of a replacement delivery, AZETI is also entitled to deliver a new programme version with at least the same range of functions, unless this is unreasonable for the customer (e.g. in the event that a different operating system or more powerful hardware is required; re-training of the customer in a potentially changed programme structure or user guidance in principle does not constitute unreasonableness).

5.4 If the defect cannot be remedied within a reasonable period of time, or if the rectification or replacement delivery is to be regarded as failed for other reasons, the customer can choose to reduce (lessen) the purchase price, withdraw from the contract, demand compensation or reimbursement of wasted expenses. The latter two claims are further subject to the provisions of Part A, no. 10 (general liability). Withdrawal from the contract does not exclude the right to compensation.

5.5 Failure of the rectification or replacement delivery is only to be expected if the supplier has been given sufficient opportunity to rectify or replace the delivery without achieving the desired result, if the rectification or replacement delivery is impossible, if the supplier refuses or unreasonably delays it, if there are reasonable doubts about the prospects of success, or if it is unreasonable for other reasons.

5.6 The warranty obligation does not include adapting the software to changing operating conditions and technical and functional developments, such as changes in the application or IT environment, in particular changes to the hardware or operating system, adaptation to the functional scope of competing products or establishing compatibility with new data formats.

5.7 In the event of material defects in the supplied standard software from third parties, as well as in the case of fulfilment assistance by third parties, AZETI is entitled to transfer relevant debt-free claims against suppliers, the manufacturer or other third parties to the customer, unless this is unreasonable for the customer. The above also applies if AZETI has adapted, configured or otherwise changed the software for the needs of the customer, unless the material defect was caused by AZETI's own performance.

6. Inspection and notification requirements
6.1 The customer will inspect the delivered software, including the documentation, within 10 working days of delivery, in particular with regard to the completeness of the data carriers and manuals, as well as the functionality of basic programme functions. Defects that are found or ascertainable here must be reported to AZETI in writing within an additional 10 working days. The notice of defects must include a detailed description of the defects. A notice of defects can also be submitted electronically by email to info@azeti.net. In this case, however, it is only effective if the access is also confirmed by AZETI via e-mail.

 

6.2 A claim must be made about defects that cannot be identified in the course of the described proper inspection within 10 working days of discovery, in compliance with the claim requirements specified in No. 6.1.

6.3 In the event of a violation of the obligation to inspect and give notice of defects, the software is considered approved in view of the defect in question.

7. Retention of title
If the retention of title is asserted in accordance with Part A, no. 15 by AZETI, the customer's right to use the software expires, and all programme copies made by the customer must be handed over to AZETI or deleted.

8. Special obligations of the customer
8.1 The customer may have to observe the minimum technical requirements in accordance with the respective offer description and product documentation of the manufacturer for the use of the contractual products.

8.2 If a contractual software is not delivered already installed on hardware components, the installation and integration is the sole responsibility of the customer. AZETI offers to assist him/her with this for a fee on the basis of a separate agreement (e.g. within the framework of the software maintenance agreement).

8.3 The customer will take care of a programme and data backup prior to the installation and configuration of contractual hardware and software components.

8.4 Without prejudice to any warranty rights of the customer, AZETI software may only be updated by AZETI during the contract period.

9. Software maintenance
9.1 Unless otherwise specified in the written offer, upon conclusion of the contract, in accordance with Part A, no. 3.1 of these provisions on the acquisition of software, a related software maintenance contract with a minimum contract term of 24 months is concluded. AZETI will expressly point out this contractual obligation in its offers.

9.2 The customer's warranty rights remain unaffected by the software maintenance contract.

 

E. Additional terms for the sale of hardware

1. Object of the contract
The object of these supplementary terms and conditions is the purchase of hardware components in accordance with Part A, no. 2.2.

2. Delivery and transfer of risk
2.1 Unless otherwise stated in the order confirmation or the offer, delivery is agreed to be "ex works". Separate agreements may apply for the return of packaging.

2.2 Otherwise, all deliveries of goods are made at the expense and risk of the customer. The risk passes to the customer as soon as the goods have been handed over to the person carrying out the transport or have left the warehouse for dispatch. The delivery is secured by transport insurance for the customer only at his/her express request and at his/her expense.

2.3 Delivery times and any existing delivery restrictions can be found in the respective product description of our offers.

3. Warranty (liability for defects)
3.1 Claims for defects on the part of the customer presuppose that the customer has complied with his/her obligations to inspect and notify in accordance with Section 377 of the German Commercial Code. The notification of defects must be in written or text form.

3.2 There are then statutory rights of liability for defects, insofar as it is not stipulated otherwise below and under Part A, no. 10.

3.3 With respect to the quality of the goods, only our information and/or the manufacturer's product description are deemed to be agreed on, but not other advertising and public promotions.
3.4 In the event of defects, AZETI chooses between providing rectification or a replacement delivery. In the case of rectification, AZETI will not bear the increased costs incurred by shipping the goods to a location other than the place of fulfilment, provided the shipment does not comply with the intended use of the goods.

3.5 The warranty for used goods is excluded. Otherwise, the warranty period is one year from delivery of the goods.

3.6 The provision under No. 3.5 does not apply
- to claims for damages;
- to claims due to defects that we have maliciously concealed;
- to claims from a guarantee that we have assumed for the quality of the goods;
- in the event of recourse claims in accordance with Sections 478, 479 of the German Civil Code.

4. Retention of title
4.1 AZETI retains ownership of a purchased item until all payment from the business relationship with the customer has been received prior to the purchase contract.

4.2 If the customer behaves contrary to the contract, especially in the event of late payment, AZETI is entitled to reclaim the purchased item. The reclaiming of the purchased item by AZETI cancels the contract. After reclaiming the purchased item, AZETI is authorised to sell it; the proceeds from the sale are to be offset against the customer's liabilities - less reasonable sales
costs.

4.3 The customer is obliged to treat the purchased item with care for the duration of the retention of title; in particular, he/she is obliged to adequately insure it against fire, water and theft damage at replacement value at his/her own expense. If maintenance and inspection work is required, the customer must carry this out in good time at his/her own expense.

4.4 In the event of seizure of the purchased item or other interventions by third parties, AZETI must be informed immediately in writing, so that AZETI can file a lawsuit in accordance with Section 771 of the German Code of Civil Procedure. If the third party is unable to reimburse AZETI for the judicial and extrajudicial costs of a successful lawsuit in accordance with Section 771 of the German Code of Civil Procedure, the customer shall be liable for the costs incurred by AZETI.

4.5 The customer is entitled to resell the purchased item in the ordinary course of business; however, he/she hereby assigns to AZETI all claims in the amount of the final invoice (including VAT) of AZETI's claims that arise from the resale against his/her buyers or third parties, regardless of whether the purchased item has been sold without or after handling. The customer remains authorised to collect this claim even after the assignment. AZETI's authority to collect the claim itself remains unaffected. However, AZETI is obliged not to collect the claim as long as the customer meets his/her payment obligations from the proceeds received, does not fall into default and, in particular, no application is made to open a settlement or insolvency procedure, or payment is suspended. However, if this is the case, AZETI can request that the customer notify AZETI of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

4.6 The processing or restructuring of the purchased item by the customer is always carried out for AZETI. If the purchased item is processed with other items not belonging to AZETI, AZETI acquires co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. For the item resulting from processing, the same applies as for the purchased item delivered under reservation of title.

4.7 If the purchased item is inseparably mixed with other items not belonging to AZETI, AZETI acquires co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of the mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer to AZETI proportional co-ownership. The customer holds the resulting sole ownership or joint ownership for AZETI.

4.8 The customer also assigns to AZETI the claims to secure AZETI's claims against him/her which arise against a third party through the connection of the purchased item to a property.

4.9 We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; AZETI is responsible for selecting the securities to be released.

5. Other
The customer waives any claims for lien, retention or offset unless these claims are undisputed and legally established.

 

F. Additional software maintenance terms

1. Object of the contract
1.1. Unless stipulated otherwise in the offer according to Part A, no. 2.2, the maintenance services of AZETI include the following services:
- The transfer of the latest programme versions (updates), as well as updated versions (patches) of the contractual standard software and any necessary adjustments to the customer's IT system environment. The transfer also includes the installation of the software if it is more difficult than the mere menu-driven transfer of the programme code to the data or programme carrier, as well as the necessary instruction and advice for the customer;
- Updating the user documentation. If there is a significant change in the scope of functions or the operation of the software, completely new documentation is provided.
- After the expiry of the warranty period for defects, the rectification of the defect in relation to the current programme version, both within the programme code and within the documentation. The response time to remedy the defect is a maximum of 10 working days.
- Both written advice (also by fax or e-mail) and telephone support to the customer in the case of defect-related problems not within the meaning of Part D, no. 5 of this provision concerning the use of the software and, if applicable, programme errors.

1.2. Further service levels are subject to remuneration and may be subject to separate written agreements between the parties.

1.3. The following services are not included in the contractual maintenance services of the entrepreneur:
- Consultations outside of the standby times specified under No. 1.1.
- Maintenance services that become necessary due to the use of the software on a different hardware system or under a different operating system.
- Maintenance services after the customer interferes with the programme code of the software.
- The elimination of faults or damage caused by improper handling on the part of the customer, by the influence of third parties or by force majeure.
- Maintenance services regarding the combination of the contractual software with other computer programs that are not part of the maintenance contract.
- Extensions and/or improvements to the original functionality of the contractual software (upgrades).
- Improvements to the hardware components.
These services may be the object of separate written agreements between the parties.

2. Rights of use
2.1. Insofar as AZETI provides the customer with the latest programme versions under this maintenance contract, AZETI grants the customer usage rights in accordance with Part D, no. 3 of these provisions.

2.2. If the customer uses contractual objects that are to replace earlier ones, the right to use the replaced contractual object expires.

3. Special obligations of the customer
3.1. When describing, pinpointing, ascertaining and reporting errors, the customer must follow the instructions given by AZETI. The customer may have to use AZETI checklists.

3.2. The customer must form his/her error messages and questions as precisely as possible. He/she must rely on competent employees for this.

3.3. During the necessary test runs, the customer is personally present or provides competent employees who are authorised to judge and decide on defects, functional extensions, functional reductions and changes in the programme structure. If necessary, other work with the computer system must be stopped during the period of maintenance work.

3.4. The customer grants AZETI remote access to the software using telecommunications or the internet. The customer is responsible for establishing the connections required for this, following instructions from AZETI.

G. Additional training conditions

1. Object of the contract
1.1. The object of these additional “training” conditions is the imparting of suitable knowledge and information to the customer or third parties designated by him/her in order to be able to control or use the products specified in the respective offer at the user level.

1.2. The type, content, duration and time of the training measures is the binding object of the respective offer.

1.3. AZETI will provide qualified and competent staff for the training. The customer is not entitled to training by certain employees.

1.4. Unless otherwise expressly agreed, the training takes place on the customer's premises. The customer is obliged to provide sufficient technical equipment for the training free of charge.

1.5. The training is aimed at people who have at least a basic knowledge in the EDP and IT area.

1.6. The services according to No. 1.1 are provided on an employment contract basis without exception; no success in our performance is due in this respect.

2. Obligation to cooperate and business principles
2.1. The following cooperation obligations are also essential business principles:

2.2. The customer is obliged to cooperate in a manner that complies with the purpose of the contract. These cooperation obligations include in particular the provision of comprehensive information about the system environment and the intended general purpose and area of application of the products, as well as the provision of all information in the sphere of the customer, e.g. company goals, special organisational, administrative, procedural conditions, or other requirements and facts that may be relevant for a system environment.

2.3. If necessary, the customer ensures AZETI access to the spatial application areas of the products.

2.4. The customer ensures that all cooperation services necessary for the provision of the agreed service are provided in good time, completely and free of charge for AZETI. All services to be provided by the customer are a prerequisite for the contractual performance. If the customer does not perform these services or does not do so in good time, the resulting fruitless expenditure of time, fee increases or postponements are at his/her expense.

2.5. Appointments and meetings necessary for the execution of the contract are to be properly coordinated with AZETI and, in the event that these are not clearly perceivable, consultation is to be made in good time.

2.6. The customer must ensure that his/her data is backed up adequately on an ongoing basis.

3. Remuneration
Unless expressly agreed otherwise, the training expense is calculated in accordance with AZETI's current list prices; travel costs and expenditures are also reimbursed.

4. Rights of use
4.1. Upon full payment of the agreed remuneration, the customer receives any non-exclusive right, unlimited in time and space, to use the training documents provided by AZETI for internal use and purposes.

4.2. AZETI, however, has no obligation to provide training documents or application documentation; the training takes place via direct demonstrations.

4.3. Incidentally, AZETI reserves all rights, i.e. in particular the right to reproduce, distribute, demonstrate, edit, transform or modify, further develop, transmit the documents and works created in the course of the training measures via telecommunication lines or wirelessly, and to grant third parties, without the consent of the customer, limited or unlimited, simple or exclusive rights of use, insofar as this does not conflict with legal or contractual confidentiality obligations.