General Terms and Conditions contracted to Batalyse GmbH
Batalyse GmbH develops, licenses and sells software and services to automate data processing.
- Scope of application
1.1 The following General Terms and Conditions shall apply to development orders for new software modules and the distribution/licensing of existing software modules contracted to Batalyse GmbH. Divergent, contrary, or additional terms requested by the client shall not form part of the contract without the prior written consent of Batalyse GmbH.
Where the following General Terms and Conditions do not provide any other regulation of the matter, the provisions of service contract law (Arts 611 et seq. German Civil Code) shall apply to all research and development contracts.
1.2 Where the following General Terms and Conditions provide the barring or limitation of damage liability of Batalyse GmbH, its legal representatives or agents, such barring or limitation shall not apply to liability for damages from injury to life, body, or health.
- Object of the contract, period of performance
2.1 The subject matter of the software development or licensing shall be the work or services provided defined in the offer of Batalyse GmbH.
2.2 Where the offer contract includes a period of performance or deadlines, these shall only be deemed to be binding after express acknowledgement by Batalyse GmbH.
Should Batalyse GmbH recognise that the binding period of performance or the binding deadline cannot be met then it shall notify the client of the reasons for delay and shall agree on an appropriate adjustment with the client.
2.3 For the software “Data Analysis” new result diagrams, calculation tables and additional el.chem. test devices shall be provided as a update service for the client without additional costs during the license period. Updates will be added within a reasonable period of time after uploading all necessary information to the Batalyse File Upload Server.
3.1 The fee shall be a fixed price. Notwithstanding this, the contracting parties may agree that the fee will be charged according to cost, where applicable with a maximum cost limit.
3.2 The software modules “Data Analysis”, “Collect” and “Mind” shall be sold on the basis of annual license fees.
3.3 VAT shall be added to the fee in each case, if applicable.
3.4 Customs fees shall be added to the fee in each case, if applicable
4.1 Payments shall be due according to the agreed payment schedule. In the absence of a payment schedule, the due date shall be the date stated in the invoice. Payments shall be made without a cash discount and with an indication of the invoice number to the account designated by Batalyse GmbH.
4.2 Batalyse GmbH reserves the right to activate licenses for the full period ordered only after receipt of the full payment.
4.3 Setoff against claims of Batalyse GmbH shall only be allowed if the counterclaim is uncontested or if it is the subject of a final court decision.
4.4 The client may only exercise a right of retention if its counterclaim is based on the same contractual relationship.
- New development of software, contract programming, licensing – rights of use.
5.1 The development result shall be made available to the client after completion of the order in accordance with the offer.
5.2 The client shall receive a non-exclusive, gratuitous right of use for the application purpose on which its software development order is based for the copyright-protected software and know-how created during the execution of the order. The granting of an exclusive right of use for the application purpose shall require a separate agreement.
5.3 In the case of licensing, the client shall receive a non-exclusive right of use limited to the term of the license.
5.4 In the case of the “Data Analysis” software, the licenses are tied to a fixed computer, an Origin serial or registration number. Alternatively or additionally the usage of “Data Analysis” can be limited to a number of usages defined in the offer of Batalyse GmbH.
- Third party property rights (e.g. open source code)
Upon request, Batalyse GmbH shall point out the use of open source software packages/libraries which are used for the fulfillment of the order. The contracting parties shall decide in joint consultation how such property rights shall be taken into consideration in the further performance of the project.
7.1 The liability of Batalyse GmbH, its legal representatives and agents in the case of violation of obligations and tort shall be limited to intent and gross negligence. Only in case of violation of essential contractual obligations (cardinal obligations) Batalyse GmbH, its legal representatives and agents shall also be liable in case of slight negligence. In any case, liability shall be limited to the foreseeable, contractually typical damages.
7.2 Should Batalyse GmbH neither fulfil the performance as agreed upon nor do so at the time due nor in the manner agreed upon, then the client may only demand compensation in lieu of performance if the client has unsuccessfully set an appropriate deadline for the performance by Batalyse GmbH including the statement that it would otherwise reject acceptance of the performance after the passing of that deadline.
7.3. Batalyse GmbH is not responsible for any (calculation) errors or omissions, or for the results obtained from the use of its software.
- Statutes of limitation
8.1 The claims of the client for breach of duty and tort shall be statute-barred within 12 months. This shall not apply where legislation prescribes longer periods of time.
8.2 Should acceptance of software result be agreed upon, the statute of limitations on claims due to defects pursuant to Section 8.1 shall commence upon acceptance, otherwise upon delivery.
8.3 Negotiations between the contracting parties over claims or over circumstances giving rise to claims shall suspend the statutes of limitation. The suspensive effect shall end if one of the contracting parties has not complied within four weeks with the request of the other contracting party to continue negotiations.
- Retention of title
The Client shall not receive ownership of the contracted developed software nor receive non-exclusive rights of use to licensed software referred to in Section 5 until full payment of the agreed fee.
The contracting parties shall for the duration of the contract and for a period of two years after its termination not make accessible to third parties information of a technical or commercial nature disclosed to each other and declared to be confidential. This shall not apply to information known or generally accessible to the other contracting party or to the public, or information which becomes known or generally accessible to the public after disclosure without any involvement or fault on the part of the other contracting party, or correspond to information disclosed or made accessible to the other contracting party by an entitled third party, or independently developed by an employee of the other contracting party not in possession of the information disclosed.
- User, Usage and Test Data
11.1 To create a license computer or Origin specific information are required. Corresponding information are automatically transferred to Batalyse when the user clicks on the button “Request/Activate License” in Data Analysis.
11.2 Batalyse-Data Analysis tracks usage statistics, e.g. number of launches, number of evaluations and bug events especially if the license is connected to the usage number.
11.3 Batalyse GmbH has no access to your test data. To fix bugs or implement desired features, it may be necessary for the user to forward test data to Batalyse GmbH
11.4 Batalyse GmbH doesn’t share user, usage or test data with any other third party.
- Publication, Advertising
12.1 Batalyse GmbH shall be entitled to use the name and logo of the Client for advertising purposes, insofar as this is an integral part of the offer of Batalyse GmbH.
12.2 The client is entitled to use the name and logo of the Batalyse GmbH for advertising purposes
13.1 In the case of software licensing, the contract period shall be extended by one year’s notice, unless notice of termination is given two months before the end of the contract.
13.2 In the case of contracted software development, both parties to the contract shall be entitled to terminate the contract with one month’s notice to the end of the calendar month if no substantial progress has been made after the expiry of a substantial processing period. However, termination is excluded within a six months period since the beginning of the contract. Except as provided in this Section 13, there shall be no further right of termination.
13.3 In the case of contract programming, each contractual partner shall be entitled to terminate the contract extraordinarily for good cause.
13.4 Upon termination Batalyse GmbH shall submit within four weeks the result of the research and development achieved until expiry of the period of notice. The client shall be obliged to compensate Batalyse GmbH for costs incurred up to the expiry of the period of notice. Personnel costs shall be reimbursed as incurred up to the date of termination. In the event that the termination is due to a fault by one of the contracting parties, this shall not affect damage compensation claims.
14.1 Ancillary understandings, amendments and supplements hereto must be made in writing.
14.2 Place of performance for Batalyse GmbH and for payment by the client shall be Walzbachtal (Woessingen), Germany
14.3 The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
14.4 Should one or more provisions of these General Terms and Conditions be or become fully or partially void then the validity of the remaining provisions shall remain unaffected. The same shall apply in the case of a gap in the provisions of these General Terms and Conditions.