General Terms and Conditions of PROFI Engineering Systems AG

Scope of Application of the General Terms and Conditions

These General Terms and Conditions (hereinafter “GTC”) apply to individual contracts (hereinafter “Individual Contracts”) for the services described herein, entered into between PROFI Engineering Systems AG, Otto-Röhm-Str. 18, 64293 Darmstadt (hereinafter “PROFI AG,” “we,” “us,” “our”), and the respective contractual partner of PROFI AG (hereinafter “Customer”) and only if our Customer is acting in the course of its commercial or self-employed activities (and is therefore an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB)) or is a legal entity under public law or a special fund under public law.
Any conflicting, deviating, or supplementary General Terms and Conditions of the Customer shall not apply unless their validity is expressly agreed to. This also applies even if the application of the Customer’s General Terms and Conditions is not expressly objected to. Our unconditional provision of services or acceptance of payments does not constitute an acknowledgment of any deviating provisions.
Each individual contract constitutes a separate agreement that has no legal effect on any other individual contracts that may have been concluded between PROFI AG and the customer. The cancellation or termination of an individual contract shall not affect the term or validity of the remaining individual contracts and other agreements in effect between the customer and PROFI AG.
Any provisions, amendments, or additions that deviate from these General Terms and Conditions or an individual contract must be in writing.

Part A: General Terms and Conditions

I. Scope of Application

These General Terms and Conditions, Part A, apply to all individual contracts between our customer and us, within the scope of application defined above.
The circumstances under which the special terms and conditions in Part B, Part C, and/or Part E apply in addition to this Part A are specified in each respective section under the heading “Scope of Application.” To the extent that a provision in these special terms and conditions conflicts with any provision in these General Terms and Conditions, Part A, the provision in the special terms and conditions shall take precedence over the provision in these General Terms and Conditions, Part A, as the more specific provision.

II. Scope of Services; Data Backup by the Customer; Subcontractors

The scope of services we are obligated to provide is determined, depending on the service requested, by the specific terms and conditions set forth in Parts B, C, D, and/or E, as well as by the respective individual contract. To the extent that the provisions of the individual contract conflict with these General Terms and Conditions, the provisions of the individual contract shall prevail.
Unless otherwise instructed, we are not obligated to verify the completeness or accuracy of the customer’s scope of work and service description or of any data, information, or services otherwise provided by the customer, unless there is a valid reason to do so. It is the customer’s responsibility to back up the data stored on their computers in an appropriate manner prior to any software installation or work performed on the customer’s computers. Furthermore, it is the customer’s responsibility to regularly create proper backup copies of their data.
When we make recommendations regarding the use of hardware components and peripheral devices, the scope of services does not include the adaptation of peripheral devices provided by the customer or used at the customer’s request that are not covered by this recommendation. In individual cases, such customization can be very time-consuming and costly. If customization is commissioned without a concurrent fee agreement, payment will be based on the time spent, in accordance with our current price list.

III. Customer Cooperation

If and to the extent that our services are not limited to the delivery (and, if applicable, licensing) of software or hardware, the following provisions regarding our customer’s obligation to cooperate shall apply:

The customer’s fulfillment of essential cooperation obligations is a prerequisite for our ability to provide services on schedule. If the customer falls behind in fulfilling an essential cooperation obligation, our project workload will increase and subsequent deadlines will be postponed. The customer acknowledges and agrees that such a postponement of deadlines does not necessarily have to be proportional to the delay caused, but may be shorter or longer. In this case, the duration of the delay shall be determined in accordance with Section 315(3) of the German Civil Code (BGB) at our reasonable discretion, subject to judicial review. Any additional expenses incurred by us as a result shall be reimbursed by the customer (see Section III, Paragraph 2).
We may bill separately for downtime during which we or our agents are unable to work productively because the customer has not fulfilled its obligations to cooperate properly, completely, or in a timely manner, based on time and effort at the applicable hourly rates. The customer reserves the right to prove that the actual damage was less. Downtime subject to compensation may arise, for example, due to:
a) Unavailability of the customer’s contact person, to the extent that this results in downtime;
b) Unavailability or failure of communication networks within the customer’s area of responsibility, to the extent that these are required for technical reasons for development, testing, or integration purposes;
c) Unavailability or malfunction of interfaces or interface programs, to the extent that these are to be provided by the customer; and/or
d) Delayed provision of test data by the customer.
To resolve any issues relating to the individual contract throughout its entire term, the customer shall designate a person with decision-making authority as our authorized contact. In particular, this contact person shall ensure that the customer’s decisions are made in a timely manner so that no delay in the performance of the individual contract occurs due to the customer’s failure to make decisions or to make them in a timely manner. In the event of this contact person’s absence due to vacation or illness, the customer must ensure that a duly authorized representative is available.

IV. Delivery Dates, Hindrances to Performance, Reservation Regarding Our Own Supply

Delivery dates or dates for the performance of our services are binding only if they have been expressly agreed upon with the customer as binding.
In the absence of a binding stipulation regarding the delivery and/or performance period, we shall determine the delivery and/or performance period at our reasonable discretion, subject to judicial review.
If, despite having entered into a corresponding hedging transaction with a supplier known to be reliable, we ourselves are not supplied on time, the applicable deadlines for the performance of our services shall be extended by a reasonable period to be determined by us at our reasonable and judicially verifiable discretion.
Public holidays are January 1, Good Friday, Easter Monday, May 1, Ascension Day, Whit Monday, Corpus Christi, October 3, December 24, Christmas Day, Boxing Day, and December 31.

V. Compensation, Surcharges, Expenses, Late Payment

The compensation to be paid by the customer for the services we provide is specified in the respective individual contract. Unless otherwise agreed, all agreed compensation amounts are in euros and are subject to value-added tax and any costs for shipping and packaging. With regard to the billing of downtime, the provisions in Section III, Paragraph 2 apply.
All fees must be paid by the customer within 14 days of receipt of our respective invoice by bank transfer to the bank account specified in the invoice.

VI. Counterclaims, Assignment

Our customer may only set off our claims against undisputed or legally enforceable counterclaims. The customer is authorized to exercise a right of retention only to the extent that the counterclaim is based on the same contractual relationship.

VII. Acceptance

To the extent that we are required to perform work within the meaning of Sections 631 et seq. of the German Civil Code (BGB) pursuant to an individual contract, such work is subject to acceptance. This does not apply to services to be performed in parallel, in particular consulting and other support services.
To the extent that partial acceptances have been agreed upon and/or acceptances of partial deliveries and/or services take place, we are entitled to withhold further partial deliveries and/or services as long as the customer is in default with the acceptance of partial deliveries and/or services or with payment for accepted partial deliveries and/or services.
Acceptance may not be refused on the grounds of minor defects. Defects are considered significant if they render the intended, i.e., economic, use of the work impossible or unreasonably restricted or impeded.

VIII. Liability for Defects

If, upon the conclusion of a contract of sale or a contract for work and services, the customer is entitled to claims for liability for defects against us due to defects in the goods or the work, the statute of limitations for warranty claims in the case of a contract of sale for new goods is one (1) year from delivery of the item; in the case of a contract for services, it is one (1) year from acceptance. However, the statutory limitation periods remain unaffected in cases of fraudulent concealment of a defect, the assumption of a guarantee of quality, injury to life, limb, or health, as well as in cases of
intent or gross negligence.
If a used item is sold in an individual case, the warranty is excluded. Section VIII, paragraph 1, sentence 2 applies accordingly.
If we are liable for a material defect under a sales contract, we are entitled to the option provided in § 439(1) of the German Civil Code (BGB) to either repair the defect or deliver a defect-free item.
Unless otherwise expressly agreed in the respective individual contract, we do not provide any warranty of durability or quality within the meaning of Section 443 of the German Civil Code (BGB) for items sold by us.
In the case of sales contracts, there is an obligation to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB) if the customer is a merchant within the meaning of the HGB. This provision also applies mutatis mutandis to contracts for work and services.
It is expressly clarified that the customer’s warranty claims arising from an individual contract (e.g., due to defects in the delivered hardware) do not extend to any other individual contracts concluded in connection therewith (e.g., regarding the licensing of standard software or the provision of services), unless otherwise expressly agreed in the respective individual contract.
If the software is defective, the customer shall, as part of the replacement delivery of a defect-free item, accept a new version of the software if necessary, unless this results in unreasonable disruptions.
A warranty against material defects does not apply to defects resulting from the use of software or hardware in a hardware and software environment that does not meet the requirements specified in the individual contract, or to changes and modifications that the customer has made to software or hardware without being authorized to do so by law, these General Terms and Conditions, or prior written consent from PROFI AG.
Costs incurred by us as a result of an unjustified complaint regarding defects by our customer must be reimbursed by the customer if the customer could have recognized, by exercising the due care customary in business, that the complaint was unjustified.
The customer’s warranty rights with respect to software, hardware, or other goods or items provided free of charge are governed exclusively by statutory provisions.

IX. Disclaimers

PROFI AG is liable for damages resulting from injury to life, body, or health that arise from a breach of duty by PROFI AG, a legal representative, or a vicarious agent of PROFI AG, as well as for damages caused by the absence of a quality guaranteed by PROFI AG.
PROFI AG is liable for damages caused by PROFI AG or one of its legal representatives or agents acting with intent or gross negligence.
In the event of a breach of material contractual obligations caused by slight negligence, PROFI AG’s liability—except in the cases specified in Section IX, Paragraph 1 or Paragraph 4—is limited in amount to the foreseeable damage typical for this type of contract. Essential contractual obligations are, in abstract terms, those obligations whose fulfillment is essential for the proper performance of a contract and on whose compliance the contracting parties may regularly rely.
Liability under the Product Liability Act remains unaffected.
The statute of limitations for claims for damages against PROFI AG is one (1) year, except in the cases specified in Section IX, paragraphs 1, 2, or 4.
Notwithstanding the provisions of this Section IX, PROFI AG’s liability for software, hardware, or other goods or items provided free of charge shall be limited exclusively to the statutory provisions.

X. Confidentiality

Both the Customer and PROFI AG are obligated, until the expiration of five (5) years following the expiration of the respective individual contract, not to make the confidential information transmitted or disclosed to the other party (each a “Receiving Party”) to third parties, either directly or indirectly, and not to use such information for any purpose other than the performance of the respective individual contract under which the Receiving Party obtained knowledge of the confidential information. Confidential information includes all information (i) regarding the details of the relevant individual contract (including the content of the respective offer), (ii) all technical information and know-how of the other party made available to the receiving party within the scope of the individual contract, (iii) other information designated as confidential by the other party, and (iv) trade secrets and business secrets of the other party, provided that and to the extent such information is not covered by (i) through (iii).
The confidentiality obligations set forth in Section X, Paragraph 1 do not apply to confidential information that (i) was demonstrably known prior to its disclosure to or prior to its discovery by the receiving party and was not disclosed by a third party in breach of a confidentiality obligation, (ii) was known to the public or generally available prior to disclosure, (iii) became known to the public or generally accessible after disclosure without the involvement or fault of the receiving party, and/or (iv) must be disclosed in the context of administrative, judicial, or arbitral proceedings.

XI. Intellectual Property / Property Rights

Unless otherwise expressly agreed in the respective individual contract or these General Terms and Conditions, we and our suppliers retain, in relation to the customer, all ownership rights to our registered trademarks, the standard software (as defined below in Part B), the accompanying documentation, all updates (as defined below in Part E), all services and deliverables (as defined below in Part C) and other work products, as well as all intellectual property rights contained in or associated with the foregoing elements. All rights, in particular copyrights and rights of use, that are not expressly licensed or granted under an individual contract or these General Terms and Conditions are reserved.
In its relationship with us, the Customer retains all ownership rights to all of the Customer’s confidential information and all of the Customer’s pre-existing intellectual property rights.

XII. Written Form, Governing Law, and Jurisdiction

Notices of termination and other declarations of intent must be in writing.
These General Terms and Conditions and all individual contracts are governed by the laws of the Federal Republic of Germany, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG, dated April 11, 1980) and the provisions of private international law.
The place of performance for all obligations arising from the contractual relationship with the customer and the exclusive venue for legal proceedings is the registered office of PROFI AG.

Part B: Special Terms and Conditions for the Permanent Transfer of Standard Software (Purchase)

I. Scope of Application

These Special Terms and Conditions for Standard Software License Agreements, Part B, apply in addition to the provisions in the General Terms and Conditions, Part A, insofar as the subject matter of an individual contract (also) includes the sale, delivery, and licensing of standard software from PROFI AG to the customer, regardless of whether the standard software was developed by us or by a third party.

II. Scope of Services, Content, and Scope of Rights of Use for Software

The scope of services may include the delivery, licensing, and permanent transfer of standard software that was either developed by us as standard software or produced and distributed by third parties as standard software (hereinafter “standard software”).
Unless otherwise agreed, the Standard Software consists of:
a) the machine-readable object code, and
b) the documentation created either by us or by a third-party manufacturer and/or, alternatively, the functional description.
We grant the Customer the non-exclusive (simple), non-sublicensable right to use the Standard Software produced by us for the purposes specified in the Individual Contract at the installation sites named therein for an unlimited period of time.
The right of use granted to the customer pursuant to Section II, Paragraph 3 is limited to the maximum number of licenses agreed upon in the individual contract and, geographically, to use on the computer systems in the customer’s immediate possession that serve the intended purpose.
It is hereby clarified that, unless otherwise expressly agreed in the underlying individual contract, each license is limited to one (1) of the Customer’s computers. The customer is not authorized to transfer the standard software installed on one of its computers to other computers without purchasing additional licenses. This does not apply in cases where a computer must be replaced for technical reasons. In such cases, however, the customer is obligated to completely delete the installed standard software from the previous computer as soon as it has been transferred to the new computer.
To the extent that the subject matter of the contract is the delivery of standard software produced by a third party, the customer agrees to in addition to the obligations under this provision, to comply with the license terms provided by the respective manufacturer for such standard software, in particular that such standard software shall not be reproduced in violation of the provisions of the respective third-party manufacturer and that, for the intended use—including in the event of a subsequent expansion of use by the customer — there is always a sufficient number of licenses available.
If the customer uses the standard software to an extent that exceeds the acquired rights of use either qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of licenses acquired), the customer shall immediately acquire the rights of use necessary for the permitted use.

III. Delivery

The customer shall receive the number of copies of the standard software required to exercise the respective license granted, in machine-readable form, at our discretion either stored on data carriers or made available for retrieval via remote data transmission.
The customer shall also receive, for each copy of the standard software, one copy of the user documentation created by us or by a third-party manufacturer and made available to us for transfer to the customer. We may also fulfill this obligation by incorporating electronic help into the standard software or by providing the ability to access the user documentation directly from the standard software.

IV. Scope of Services

Unless otherwise agreed in individual cases, the following services provided by us, in particular, are not covered by the licensing of standard software under these Supplementary Terms and Conditions, Part B, and are therefore not included in the compensation agreed upon in the individual contract:

a) Installation of the standard software at the customer’s site;
b) Customization of variable parameters of the standard software in accordance with the customer’s requirements (customizing);
c) Customization of the standard software for the customer (custom modifications);
d) Adaptation of the standard software’s interfaces to the customer’s needs;
e) Instruction and training of the customer’s program users; or
f) Maintenance and support of the standard software, in particular the delivery of new program versions.

Part C: Special Terms and Conditions for Contracts for the Provision of Services

I. Scope of Application

These Special Terms and Conditions for Contracts Concerning the Provision of Services—Part C—apply in addition to the provisions in the General Terms and Conditions—Part A—to the extent that the subject matter of an individual contract (also) involves the provision of services, i.e., in particular (i) the installation, customization/configuration, and commissioning of standard software and/or hardware sold by us; (ii) the customization and/or enhancement of standard software performed specifically for the customer and/or the development of standalone software performed specifically for the customer (hereinafter collectively referred to as “Development of Custom Software”); (iii) the training or other support of the customer’s employees, (iv) the migration of data or other software components, and (v) the provision of other consulting services. These special terms and conditions do not apply to services provided under a software maintenance agreement or a support agreement.

II. Scope of Services / Rights of Use

The nature and scope of the services to be provided—in particular, the planned timeframe for such services, the specific services to be provided by us (hereinafter “Deliverables”), and any payment terms or milestones—shall be specified in the respective individual contract.
The Customer shall be granted the same rights of use to the Deliverables and to all other work products created by us as part of the services and provided to the Customer as those granted for the standard software produced by us to which the work products relate. To the extent that the work products do not relate to standard software produced by us, we grant the customer a non-exclusive (simple), non-sublicensable right to use the work products created by us for the purposes specified in more detail in the respective individual contract, without any time or territorial restrictions.
To the extent that the customer has acquired an exclusive right of use to work products delivered by us under an individual contract based on separate, individual agreements, we retain the right to use our own knowledge or that of our employees—as well as the tools and procedures used—that were employed in the creation of the work product and that are intended or suitable for reuse in other service relationships, for the purposes of our business operations. This does not apply to knowledge that relates exclusively to the specific characteristics of the customer’s business operations.
The delivery of the source code is not included in the scope of delivery when custom software is developed.

III. Due Date for Payment

If remuneration is agreed upon on a “time and materials” basis, the respective remuneration is due monthly and will be invoiced by us.
If a fixed fee is agreed upon, its due date shall be governed by the payment terms specified in the individual contract.

Part D: Special Terms and Conditions for the Sale of Hardware

I. Scope of Application

These Special Terms and Conditions for the Sale of Hardware (Part D) apply in addition to the provisions in the General Terms and Conditions (Part A) to the extent that an individual contract (also) covers the delivery of hardware components.

II. Scope of Services for the Sale of Hardware

Our business activities do not include the manufacture of hardware. Therefore, to the extent that hardware components are included in the scope of services under an individual contract, we wish to clarify that these are not manufactured by us.
The scope of services is governed exclusively by the contractual agreements. If, during delivery and/or installation, it becomes apparent that additional hardware components are required, these must be ordered and paid for separately or procured by the customer.
The customer agrees to install the system software supplied with the hardware components, that is,
a) system software supplied with the hardware that must be installed on the hardware after its setup and/or installation, as well as
b) software components already permanently integrated into the hardware, only in accordance with the respective license terms of the respective manufacturer of such software.

III. Retention of Title, Current Account Retention

The delivered hardware remains our property until the portion of the purchase price attributable to the hardware has been paid in full.
Furthermore, the delivered hardware remains our property until all of our claims arising from the transaction associated with the purchase of the hardware (purchase and licensing of standard software and/or licensing and customization of standard software) have been paid in full.
The customer may not sell, pledge, or transfer ownership of the goods subject to retention of title—whether solely or jointly owned by us—to third parties as security. The customer is not permitted to pledge the goods, transfer ownership as security, or assign claims as security.
If the effectiveness of the retention of title requires the customer’s cooperation—for example, in the case of registrations required under the law of the buyer’s country—the customer must carry out such actions.
If the customer meets the objective criteria for the obligation to file for insolvency, the customer must—without the need for a specific request—refrain from any disposition of the goods subject to retention of title, regardless of the nature thereof. In this case, we are also entitled to rescind the contract and demand the return of the goods subject to retention of title.

Part E: Special Terms and Conditions for the Temporary Provision of Hardware (Rental)

I. Scope

These Special Terms and Conditions for the Temporary Provision of Hardware for a Fee (Part E) apply in addition to the provisions in the General Terms and Conditions (Part A), to the extent that the subject matter of an individual contract (also) involves the temporary provision of hardware for a fee.

II. Scope of Services

Our business activities do not include the manufacture of hardware. Therefore, to the extent that hardware components are included in the scope of services under an individual contract, we wish to clarify that these are not manufactured by us.
The scope of services is governed exclusively by the contractual agreements. If, during the provision of use and/or installation, it becomes apparent that additional hardware components are required, these must be ordered and paid for separately or procured by the customer.
The customer agrees to use the provided hardware components only at the location specified in the respective individual contract.
The transfer of the hardware for use takes place upon our delivery of the hardware to the customer.
The customer is not authorized to make any modifications to the provided hardware or to remove any markings affixed by us or our suppliers without our prior written consent.
If a third party asserts rights to the hardware we have provided to our customer through seizure, attachment, or similar measures, the customer is obligated to notify us of this immediately in writing.

III. Term, Termination, Return

The term of each individual contract begins on the date specified in the individual contract as the contract start date and has an initial term of one (1) year (“Initial Term”).
Upon expiration of the Initial Term, either party may terminate the individual contract by providing three months’ notice. If the individual contract is not terminated, it shall be automatically extended for one (1) additional year at a time. Each party is entitled to terminate the individual contract, as extended, by giving three months’ notice effective at the end of each extension period.
The right to terminate an individual contract for good cause and pursuant to Section 543 of the German Civil Code (BGB) remains unaffected.
Upon termination of the respective individual contract, the customer must return the provided hardware to us. The return shall be effected by the customer delivering the provided hardware to us at our corporate headquarters in Darmstadt.
The customer is required to notify us in writing or by fax of the intended return of the hardware provided 14 calendar days prior to the return, unless a fixed-term use has been agreed upon from the outset. If the notice is given verbally or by telephone, the customer must confirm it in writing or by fax within three calendar days.
If the customer does not return the provided hardware to us upon termination of the respective individual contract, we are entitled, but not obligated, to pick it up from the customer’s premises and, for this purpose, to enter the location where the provided hardware is stored or in use. The customer waives any claims to which they might be entitled arising from unauthorized action.

IV. Liability for Defects

PROFI AG undertakes to maintain the hardware provided in a condition suitable for its contractual use for the duration of the term and to perform the necessary maintenance and repair work. This obligation applies only to the contractual condition of the hardware as specified in the respective individual contract.
If the customer is entitled to claims for liability for defects against us due to defects in the leased property, the statute of limitations for warranty claims shall be one (1) year from the statutory commencement of the limitation period. However, the statutory limitation periods remain unaffected in cases of fraudulent concealment of a defect, the assumption of a guarantee of quality, injury to life, limb, or health, as well as in cases of willful misconduct or gross negligence. The first sentence of this Section IV, Paragraph 2 does not affect § 548, Paragraph 2 of the German Civil Code (BGB).
Claims by the customer for defects in the rented property are excluded to the extent that such defects only insignificantly impair the suitability of the rented property for its contractual use.
PROFI AG’s strict liability for initial defects pursuant to Section 536a(1) of the German Civil Code (BGB) is excluded. PROFI AG shall be liable in this regard only in cases of gross negligence or willful misconduct.
It is expressly clarified that the customer’s warranty claims arising from an individual contract (e.g., due to defects in the delivered hardware) do not extend to any other individual contracts concluded in connection therewith (e.g., regarding the purchase of standard software), unless otherwise expressly agreed in the respective individual contract.
A warranty against material defects does not apply to defects to the extent that they result from the hardware being used in a hardware or software environment that does not meet the requirements specified in the individual contract, or to changes and modifications that the customer has made to hardware delivered by PROFI AG without being authorized to do so by law, these General Terms and Conditions, or prior written consent from PROFI AG.
The customer must notify PROFI AG immediately in writing or by fax of any defects that arise during the term of the contract.
The customer must reimburse PROFI AG for any costs incurred as a result of an unjustified complaint regarding defects, if the customer could have recognized that the complaint was unjustified by exercising the due care customary in such transactions.

As of August 23, 2021

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