1. 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 (–> Batalyse). Divergent, contrary, or additional terms requested by the client shall not form part of the contract without the prior written consent of Batalyse.

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, its legal representatives or agents, such barring or limitation shall not apply to liability for damages from injury to life, body, or health.

 

2. Object of the contract, period of performance, service

2.1  The subject matter of the software development or licensing shall be the work or services provided defined in the offer of Batalyse. In particular, the license period, optional access to updates, an unlimited or maximum number of evaluations, users and data containers are defined.

2.2  Batalyse GmbH does not guarantee the suitability of the software for a specific purpose, insofar as this is not expressly communicated and written part of the contract.

2.3  Batalyse develops the software on the basis of its own ideas or specific customer requests, but cannot guarantee the non-violation of third party rights.

2.4  The Batalyse Software is continuously improved and new versions are made available e.g. as download. There is no legal claim of the customer to receive specific features at a certain time.

2.5  The software and updates are intensively checked for bugs before release, but are provided without warranty. The customer can test software and updates in advance of a contract conclusion or installation without obligation and free of charge.

2.6  Batalyse has only a limited influence on the performance of the software system and cannot guarantee it. The performance depends in particular on the customer hardware, internet connection speed, network speed and Origin software version.

2.7  Where the offer contract includes a period of performance or deadlines, these shall only be deemed to be binding after express acknowledgement by Batalyse. Should Batalyse 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.

 

3. Fee

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” “Mind” are distributed via annual, respectively monthly license fees or a one-time sales price.

3.3  For customers in Germany the Umsatzsteuer shall be added to the fee.

3.4  For non-German customers the fee doesn’t include respective national taxes, fees and customs which have to be additionally paid by the customer if applicable.

 

4. Payments

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.

4.2  Batalyse 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.

 

5. 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 a license without an end of term (perpetual license), the Customer shall receive a non-exclusive right to use the purchased software version without automatic access to updates.

 

6. Third party property rights (e.g. open source code)

Batalyse uses and reports open source software libraries for each software module.

 

7. Liability

7.1  The liability of Batalyse, 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 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 including the statement that it would otherwise reject acceptance of the performance after the passing of that deadline.

7.3  Batalyse shall not be liable for incorrect calculations or program errors (“bugs”) that occur during the use of the software, insofar as Batalyse does not have access to the underlying data of the Customer. Insofar as the Customer is willing to share test data, Batalyse shall correct program errors within a reasonable period of time, provided this is technically possible.

7.4  Batalyse shall not be liable for any loss of data, information, loss of profit, business interruptions or loss of business opportunities, in particular if Batalyse software modules are installed on the hardware of the Customer or used with data of the Customer to which Batalyse has no access.

7.5  If an exclusion of liability for the aforementioned cases is not possible in the country of the Customer for legal reasons, the liability shall be limited to the contractual amount of the currently ongoing agreement concluded with the Customer.

 

8. 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.

 

9. 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.

 

10. Confidentiality

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.

 

11. User, Usage and Test Data

11.1  Depending on the Batalyse Software Module, Customer computer-specific information and, if applicable, the ID of the Software Origin are required for the creation of a license.

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 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.

11.4  Batalyse doesn’t share user, usage or test data with any other third party.

 

12. Terms of use

We trust the Customer to use the Batalyse software responsibly. The following actions are prohibited

• Probing/testing the software for vulnerability
• Violation of security or authentication measures
• Attempts to decrypt the source code
• Violating the law in any way such as storing, publishing, sharing fraudulent, defamatory, misleading, glorifying violence and pornographic material
• Violating the privacy or rights of third parties
• Interference with other users, hosts or networks, such as viruses, overloading, spam or mailbombing

 

13. Publication, Advertising

13.1  Batalyse 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.

13.2  In consultation the client is entitled to use the name and logo of Batalyse for advertising purposes

 

14. Termination, discontinuation of the service

14.1  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.

14.2  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 14, there shall be no further right of termination.

14.3  In the case of contract programming, each contractual partner shall be entitled to terminate the contract extraordinarily for good cause.

14.4  Upon termination Batalyse 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 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.

14.5  Batalyse reserves the right of (early) termination of the license and removal of users if our Terms of Use or any law are violated, if we are required to do so by law or if we are hold liable to do so.

14.6 Due to unforeseen circumstances beyond Batalyse’s control or to comply with legal requirements, the Services or specific features may be discontinued in part or in whole. In this case, we will inform you in due time and reimburse you on a pro rata basis for any outstanding services under current license agreements to the extent that full use of the Software is no longer possible.

14.7 In the event of insolvency of Batalyse, current online licenses of the Customer may no longer be functional. In this case we shall endeavor to provide the Customer with offline licenses for the remaining license period.

 

 

15. Escrow insurance

By an escrow insurance the customer receives access to the source code of the licensed software and a non-exclusive right of use for internal use in case of insolvency of Batalyse while the license agreement is running. Passing on, transfer or distribution to third parties is not permitted.

 

16. Settlement of disputes

In the event of a dispute, the Customer confirms to first contact Batalyse at contact@batalyse.com for resolution before any legal action is taken. Batalyse will then contact the customer by mail and attempt to resolve the dispute bilaterally within 15 days. If no agreement can be reached, a neutral, binding arbitration procedure will be sought.

 

17. Miscellaneous

17.1 Ancillary understandings, amendments and supplements hereto must be made in writing.

17.2 Place of performance for Batalyse and for payment by the client shall be Walzbachtal (Woessingen), Germany.

17.3 The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.

17.4 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.