General Terms and Conditions (GTC) of Q-Ware GmbH

 

1. Scope
1.1 These General Terms and Conditions shall apply to all customer declarations, contracts and legal transactions or similar transactions of Q-Ware GmbH (hereinafter “Q-Ware”) with their customers (hereinafter referred to as “Customer”). Terms and conditions of the customer deviating from these terms shall not apply. Counter-confirmations by the customer about his own business and / or purchasing terms are expressly rejected; these shall not be part of any agreements, unless the conditions are confirmed in writing by Q-Ware.
1.2 The General Terms and Conditions Q-Ware shall also apply to future transactions with the customer as of the first-time inclusion.

2. Conclusion of contract
2.1 Offers of Q-Ware in brochures, advertisements, etc. are free and without obligation, also regarding the prices, unless a binding assurance is expressively made.
2.2 The customer makes a binding offer with his order. The contract is concluded by the transmission of the order confirmation by e-mail, by the unblocking of the customer for the download or by goods delivery.
2.3 Customers in the sense of these General Terms and Conditions are only companies / entrepreneurs.

3. Granting of rights, license fee; information
3.1 Q-Ware grants the customer a simple and non-transferable right to use the Q-Matrix™ standard software supplied to the customer and a serial number as well as the delivered modules (hereinafter referred to collectively as “the software”) in the object code for the contractual purpose. This granting of rights is subject to the condition precedent of the full payment of the services provided by Q-Ware by the customer.
3.2 If the contract with the customer has been concluded for a certain time and / or the contract can be terminated properly (eg rent, leasing, cloud solutions / SaaS), the granting of rights is limited to the duration of the contract; If the customer has purchased the software, the rights clearance is unlimited.
3.3 The customer pays to Q-Ware for the transfer of the software and the granting of the right of use the fee stated in the offer.
3.4 The customer may use the software for the duration of the license period (section 3.2) on any hardware available to him. If the customer changes the hardware, he must delete the software from the previously used hardware. The customer is entitled to create an archive copy for backup. Further duplication of the software as well as the transfer of the transferred software to third parties, for whatever reason and of whatever kind, are prohibited.
3.5 The customer shall keep the delivered software as well as the documentation in a place secured against unauthorized access, as well as strongly emphasize his compliance with these conditions and the copyright law. The customer shall instruct his employees not to make any unauthorized duplication of the software or user manual.
3.6 The customer is obliged to inform Q-Ware of any unlawful use of the software, which is known to him, as well as to assist Q-Ware to proceed against an infringer.

4. Registration / User Account / Data Access
4.1 For the use of various services of Q-Ware a registration and the establishment of a user account is required. The prerequisite for setting up a user account is that the user is legally competent to sign.
4.2 The user is obligated to provide the data collected during the registration in a true and complete manner. In the case of a change in the collected data after registration, he/she shall immediately update the data in his/her user account or, if this is not possible, immediately notify Q-Ware of the changes.
4.3 With successful registration, a user account is created for the user, to which he can access a user name and password. User name is the e-mail address given by the user at registration. The password must be defined by the user. The requirements for secure passwords specified by Q Ware must be followed. The password can be changed by the user at any time via the password-protected user area. The user must keep the access data secret and keep it safe from access by unauthorized individuals. If the user has lost access to the access data, or if he/she suspects of his/her access data being used by a third party, he/she shall immediately notify Q Ware.
4.4 Q-Ware is entitled (temporarily or permanently) to change the access data of the user in case of infringement of these terms of use, due to
• incorrect information during registration,
• unauthorized transmission of the access data, of the password, and / or
• Misuse of the software and services of Q-Ware

5. Maintenance and service of Q-Ware
5.1 Q-Ware is, if this has been offered by Q-Ware and commissioned by the customer, to undertake the following maintenance and software maintenance services:
5.2 Provision of the latest version of the software for download via the user account; Only the latest version of the software,
5.3 Providing changes to the existing version for download via the user account, insofar as these are not caused by a substantial change in legal or other binding provisions,
5.4 Provision of new or adaptation of existing documentation documents for download via the user account,
5.5 Elimination of the errors of the software and the documentation documents for which Q-Ware is responsible insofar as the value or the suitability for the contractual prerequisite use is lifted or substantially reduced.

6. Additional benefits
In addition, the Customer may use the following services, which shall be charged separately:
6.1 Implementation of the latest version of the Software,
6.2 Implementation of the changes,
6.3 Transmission and installation of software adaptations to major changes to legal or otherwise binding provisions,
6.4 Elimination of faults which are not attributable to Q-Ware,
6.5 Restoration of the software in case of damage caused by operating and / or hardware errors,
6.6 Performing retraining, which becomes necessary due to changes or improvements to the software,
6.7 Conversion of the software to another operating system, another hardware system or another programming language, if the Contractor offers a corresponding version,
6.8 Necessary adaptations to the software for changes to existing operating systems by its manufacturer,
6.9 Consulting on all questions concerning the use or application of the software, including the transfer of application and application experiences from the entire user group.

7. Remote access
7.1 In consultation with Q-Ware, the customer will provide a suitable remote access, even outside normal business hours, for carrying out the maintenance, maintenance and additional services via a remote connection. The necessary remote maintenance software is provided by Q-Ware, without an additional fee.

8. Maintenance fee
8.1 To compensate for the work referred to in clause 5, the customer pays to Q-Ware a fee per service year according to the offer. The maintenance fee is payable in advance at the beginning of each maintenance year after the invoice has been issued.
8.2 Q-Ware is entitled to a reasonable increase in the agreed maintenance lump sum. Such an increase shall take effect three months after the end of the maintenance year in which Q-Ware notified the change in writing. If the customer does not agree to this fee adjustment, he can terminate this agreement with a two-month deadline as of the effective date of the new fees.

9. Billing according on a time and material basis
9.1 For activities, as per section 6 of this document, the costs are billed. The basis for this is the fee list of Q-Ware, which is provided on request. Billing also occurs if Q-Ware was wrongly requested to remedy an error and for this reason Q-Ware has incurred a not inconsiderable expense.
9.2 Settlement of the expenses incurred shall be made monthly.

10. Travel and material costs
10.1 Travel expenses and material costs are to be paid separately. The fee list is the subject of this contract; Changes are communicated to the customer in good time.

11. Prices and terms of payment; Information, information requirements
11.1 The customer is aware that the amount of payments to be made to Q-Ware, in particular also in the case of duration contracts (eg maintenance, rent, leasing, cloud solutions / SaaS), among other things is based on the number of active managed individuals within the software. The customer is therefore obliged upon request to provide Q-Ware with true and written information on the extent of the use.
11.2 The prices apply at the time of the order. The currency for the prices is the Euro. The currency risk as well as possible bank charges for the payment of the prices to Q-Ware are at the expense of the customer. Shipping, installation, training and other ancillary services are not included in the price, unless otherwise agreed. These costs are borne by the purchaser. Services which are not included in the offer are to be billed separately. All prices as well as information on costs and charges are subject to value added tax on the delivery day.
11.3 In the case of delivery against invoice, the invoice amount shall be payable upon receipt of the invoice. The customer is in delay with the payment without a reminder if the payment is not received by Q-Ware within 14 days after receipt of the invoice by the customer. Q-Ware reserves the right to demand advance payment.
11.4 If the customer is in delay of payment, Q-Ware is entitled to charge default interest in the amount of 11% p.a. above the applicable base interest rate, in so far as they are remuneration claims. Otherwise, Q-Ware is entitled to charge default interest of 7% p.a. above the applicable base rate. In addition, a reminder fee of up to € 15.00 will be charged to the customer for each reminder, unless this is an initial reminder. The right to assert the lump sum pursuant to § 288 para. 5 BGB (German Civil Code) and any further damage beyond this shall remain unaffected. The lump sum pursuant to § 288 para. 5 BGB (German Civil Code) shall also be applied to reminder fees pursuant to sentence 3. During the delay, Q-Ware is entitled to retain all deliveries and services to the customer – including those from other contractual relationships.
11.5 The customer shall only be entitled to set-off and retention rights if his counterclaims are legally established, undisputed or recognized by Q-Ware.

12. Duration of contract and duration of care; Publishing and deleting the software
12.1 The Agreement shall enter force on the date specified in the offer and shall run for one year. It shall be extended by one contractual year in each case if it is not terminated with a period of two (2) months at the end of a contractual year.
12.2 The right to terminate for good cause remains unaffected.
12.3 If the contract with the customer is concluded for a certain time and / or the contract can be terminated properly (eg rent, leasing, cloud solutions / SaaS), the customer is obligated to terminate the software including all altered and / processed copies thereof, as well as all copies and subcopies of this material to Q-Ware without delay. In the case of licensable material, which is recorded on the machine-readable media of the customer, the complete deletion of the recording shall be replaced by the reproduction in all cases.
12.4 If the customer has purchased the software, the end of the term of the contract shall end with Q-Ware’s maintenance and services (number 5).

13. Delivery and execution, delay of delivery
13.1 Dates for the provision of the delivery or service specified by Q-Ware are only binding if they have been designated as binding in writing or in text form.
13.2 In the event of a change in the order by the customer on the basis of binding dates, these dates are no longer binding for the provision of the delivery or service by Q-Ware unless the deadline is confirmed by Q-Ware in writing or in text form respectively.
13.3 The customer shall provide Q-Ware with a reasonable period for delivery or supplementary execution if the delivery period is exceeded. After the fruitless expiration of this period of grace, he is entitled to rescind the contract.
13.4 Events of force majeure (greater force) also entitle Q-Ware within the delay to postpone the delivery or service for the duration of the hindrance. The force majeure is equal to all circumstances which are not attributable to Q-Ware and which makes the provision of the delivery or service impossible or unreasonably difficult, eg. lawful strike or legal lockout, war, import and export bans, lack of energy and raw material, official measures, self-supply not due to Q-Ware and not timely self-deliveries.

14. Place of execution; Obligation to investigate and to notify
14.1 The place of execution is the domicile of Q-Ware.
14.2 In respect of all deliveries and services of Q-Ware, the customer assumes an inspection and notification obligation in accordance with § 377 HGB (German Commercial Code).
14.3 Consultancy services shall be deemed to have been concluded between the parties as a result of their actual implementation as contractual provisions, unless the customer expressly reserves reservations.

15. Reservation of ownership and assignment
15.1 All deliveries and services as well as all related rights shall remain the property of Q-Ware until complete payment of the agreed price.
15.2 The customer may not transfer his rights under this contract to third parties.

16. Warranty
16.1 Q-Ware guarantees that the software program can be used by the customer for the intended purpose as part of the warranty as well as for the term of maintenance and support (clause 12) of this contract.
16.2 Q-Ware undertakes efforts to repair improperly executed care and maintenance services. The warranty does not include errors which are not attributable to Q-Ware, such as errors due to hardware errors, changes to the software of the operating system and file management as well as due to incorrect operation.
16.3 Q-Ware may remedy defects of the object of the contract – depending on the nature of the defect, also several times – by subsequent delivery.
16.4 The customer is aware that software programs cannot be generated without errors. Only such errors of the software, which considerably reduce their value or fitness for the contractual use, oblige Q-Ware to guarantee.
16.5 It is the customer’s responsibility to determine the destination for the use of the software and the selection of the appropriate hardware or computer types. Q-Ware does not warrant this.
16.6 Q-Ware fixes the defect free of charge or provides the customer with a corrected release status (modified version, which no longer contains the defect). Expenditures are billed according to expenses.
16.7 The customer will immediately implement the fault recovery measures (for example, install new releases).
16.8 If the supplementary performance fails after a reasonable deadline, the customer may demand the revocation of the contract or the reduction of the purchase price.
16.9 Q-Ware is fully liable for deficiencies in rights and guarantees. Liability under the product liability act remains unaffected.
16.10 The warranty period is one year from the statutory start of limitation. § 479 BGB remains unaffected.
16.11 No warranty is accepted for damages resulting from changes made to the delivery item without the consent of Q-Ware.

17. Liability and Limitation of Liability
17.1 Q-Ware is liable for intentional or grossly negligent breach of duty. This also applies to legal representatives and vicarious agents of Q-Ware. Q-Ware and its vicarious agents shall be liable for slight negligence, limited to the contractual, foreseeable damage.
17.2 The liability for data loss is limited by the typical recovery effort. This is determined by the damage that would have occurred in the course of reasonable safeguards (such as the making of backup copies).
17.3 The period of limitation for claims for compensation against the Q-Ware shall be one year from the statutory commencement of the statute of limitations, except for those arising from unauthorized acts.

18. Obligation of the customer to backup the data
18.1 The customer is obliged to protect the organization appropriately against data loss. Since the reinstallation of software, as well as the modification of the software installed, entails the risk of a loss of data, the customer is particularly obligated to take precautions against loss of data before a new installation or modification of the software installed.

19. Mandatory details according to. Service Information Obligation Regulation (DL-InfoV)
Q-Ware GmbH
Peiner Feld 4
31241 Ilsede – Germany

Tel .: +49 (0) 5172 – 96 44 500
Fax: +49 (0) 5172 – 96 44 550

Managing Director: Oliver Kruse

Registered office: Ilsede
Court of registry: Handelsregister Hildesheim, HRB 204376
VAT ID: DE 300 463 710

Internet : http://q-ware.de
Mailto : mail@q-ware.de

20. Amendments to the General Terms and Conditions
20.1 Q-Ware has the right to amend and / or supplement these General Terms and Conditions (hereinafter “Change”). The planned modification of the General Terms and Conditions will be announced to the customer by e-mail to the e-mail address specified by him at least four weeks before the planned entry into force. The customer’s consent to the amendment shall be deemed granted if he does not object to the amendment in text form (eg letter, fax, e-mail) within a period of two weeks, starting from the date following the change announcement. Q-Ware undertakes to make a separate reference to the possibility of the objection, the time limit for the objection, the text form requirement as well as the meaning or the consequences of the omission of a contradiction in the amendment notice. If the customer rejects the change in form and time, the contractual relationship with the previous conditions is continued. In this case, Q-Ware reserves the right to terminate the contractual relationship at the earliest possible date.
20.2 Q-Ware has the right to change these general terms and conditions at any time with the consent of the customer.

21. Final provisions
21.1 Amendments to the conditions, including this form clause, require the written form.
21.2 The parties agree on the application of German law in respect of all legal relationships arising from this contractual relationship. German law also applies to cross-border traffic to the exclusion of the UN purchase law.
21.3 Should individual provisions of the contract with the customer, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. This does not apply if adherence to the contract would constitute an unreasonable hardship for a party.
21.4 Ineffective provisions shall be replaced by provisions which largely meet the intended economic purpose. The same applies to any contractual gaps. Deviating, opposing or supplementary conditions are not valid even if they are known, unless their validity has been agreed in writing.
21.5 If the customer is a merchant, a legal person of public law or a public special fund, exclusive jurisdiction for all disputes arising from this contract shall be our place of business. This shall be the case if the customer does not have a general court of jurisdiction in Germany or if his place of residence or habitual residence is not known at the time the action is brought.

Status 22.02.2016