som-software GmbH

Terms and conditions

English translation. Read the German original.

Section 1 General provisions

1. Our terms of business, delivery and payment apply exclusively. Any differing terms of the purchaser or business partner require our written approval.
2. We reserve the right to make technical changes in the interests of technological progress.
3. Supplementary provisions apply to hotline and update agreements. These can be requested from us free of charge.
4. The contractual language is German.

Section 2 Placing orders

Orders must generally be placed in writing, including by email or fax. Where an order is placed verbally only, the purchaser bears the risk of transmission errors and any misunderstandings. som-software is entitled to transfer orders to third-party companies. Delivery dates are non-binding and may vary.

Section 3 Delivery, scope of functionality, documentation and translation

Deliveries are at the purchaser's expense. If the purchaser discovers damage to the packaging, particularly for hardware components, this must be confirmed by the carrier. Transport damage that is only apparent after opening the goods must be reported to som-software in writing within one week. Where acceptance is required by contract or law, the customer must perform it within two weeks of receiving the delivery. If the customer allows the two-week period to pass without accepting the program, the delivered software is deemed accepted.

Licensing model:

som-software solutions are supplied as named-user licences in a runtime version.

In information technology, the named-user licensing model defines the maximum number of users permitted to access a resource through a registered account assigned to a named individual. A resource may, for example, be a software application, a batch processor, a file or a workstation. Named-user licensing therefore differs from the concurrent-user model, which defines the number of users accessing the resource at the same time. For example, software licensed for five concurrent users may be used by more than five people, but no more than five may access it at any one time. Software licensed for five named users, by contrast, may only be used by a maximum of five registered, named individuals.

Alternative licensing arrangements must be agreed separately by contract.

som-software has the right to check the actual number of user licences in use in the customer database at any time. If more user licences are configured in the permissions system than contractually agreed, additional licences must be purchased. Any associated maintenance, hotline and licence agreements will be charged retrospectively from the start of use, but for at least one year from the date the excess use is identified. som-software reserves the right to claim damages.

The modular structure allows som-software to define and configure the software's scope individually. Standard software is adapted to the contractual scope by switching off or deactivating functions. The presence or visibility of an inactive function therefore does not automatically entitle the customer to have that function activated free of charge.

Documentation is general in nature and may also describe functions that are not included in the relevant contractual scope. Illustrations are examples and do not directly reflect the contractual scope. Documentation and its translations are revised following further software development. The software version delivered may therefore differ from parts of the documentation.

Section 4 Payment terms

Unless otherwise agreed, all invoices are payable immediately in full without deductions. In the event of late payment, we reserve the right to charge for losses caused by the delay. All prices exclude statutory VAT and, for exports, all costs prescribed by the relevant exporting country, including fees and customs duties.

som-software: 50% when the order is placed · 50% on delivery

Hardware / third-party software: 80% when the order is placed · 20% on delivery

The payment terms above apply unless otherwise agreed in writing.

Section 5 Retention of title

som-software retains ownership of the goods and software delivered until payment has been made in full. The purchaser must promptly notify us of any change of residential or business address while claims relating to delivered goods or software remain outstanding or before the goods or software have been delivered.

Section 6 Data storage

Notice under Section 33 of the German Federal Data Protection Act (BDSG): current customer data is stored by som-software as required and used for testing purposes.

Section 7 Warranty and liability

For supplies of traded goods, hardware and software not created by som-software, such as operating systems, databases and specialist software modules, only the supplier's or manufacturer's warranty applies. For software, the parties agree that, given the state of the art, software errors cannot be completely excluded across all areas of application. Fault reports must be made in writing. In the case of a defect of particular significance affecting a fundamental contractual obligation, som-software must, at its discretion, remedy the defect or provide a replacement within a reasonable period. If som-software does not fulfil this obligation within a reasonable period, the customer may request an appropriate reduction in the purchase price or withdraw from the contract. Claims for damages against som-software are excluded unless based on intentional or grossly negligent conduct by som-software or one of its agents. Otherwise, claims for damages against som-software are limited to foreseeable losses typical of the contract. Claims arising from death, personal injury or damage to health remain unaffected. A warranty period of one year is agreed.

som-software cannot assume liability or provide a warranty for force majeure, third-party interference, operating errors, third-party products and supplied components, or matters for which som-software is not responsible.

Complaints about deliveries or invoices may only be submitted to som-software in writing within 30 days of receipt. Obvious defects must be reported immediately. Section 377 of the German Commercial Code (HGB) remains unaffected.

For security reasons, receiving emails on the cloud systems provided by som-software GmbH is not permitted. The customer is not authorised to set up or enable email reception on these systems independently or to have a third party do so.
If the customer breaches this provision, the customer bears all resulting losses, expenses and consequential costs, particularly those arising from security incidents, spam, malware, blacklisting, operational disruption or necessary recovery measures.

Section 8 Contractual outcome

som-software undertakes to work conscientiously and carefully. However, given the many possible configurations of computer systems and the potential associated problems, a specific outcome is not generally owed under the contract. An assignment is considered successful if the problem has been resolved or if som-software can identify its source, even where the identified problem itself cannot be resolved or the time required to resolve it would be disproportionate..

Section 9 Working conditions

Where required, the customer will provide som-software, free of charge, with all resources, representative test data, interface descriptions and other materials necessary to fulfil its contractual obligations.

Section 10 Rights

All rights to our software, software created by us and our data, regardless of the storage medium, belong exclusively to som-software.

By placing an order, the following licence terms are accepted:

1. Upon delivery of the software and data, we grant the customer the exclusive, non-transferable right to use them on one of the customer's computers for one company account. Network licences permit use within a local network according to the number of user licences individually purchased under the contract.
2. Any copy of the software and data that is not technically necessary for their intended use within the licensed scope is prohibited. The customer may make one copy solely for backup purposes.
3. Without written permission from som-software, it is prohibited to reproduce, distribute or rent out the software, data or accompanying documentation, to grant sublicences to third parties or otherwise to make them available to third parties.
   Access to the database used by the supplied software is not permitted without som-software's written consent.
4. It is also prohibited to change, modify or adapt the software, data, accompanying documentation or any part thereof, or to reverse-engineer them in any form, insofar as this exceeds the limits set out in Sections 69d(3) and 69e of the German Copyright Act (UrhG).
5. For software not produced by som-software, such as databases, CAD software and operating systems, only the terms of the relevant licence agreement or supplier apply.

Section 11 Resellers

We supply our software and data to resellers exclusively for resale to end customers in their own name and for their own account. To this extent, we grant the reseller the right to provide our software and data to end customers within the scope of use described above in Section 9 (Rights).

Section 12 Place of performance, jurisdiction and governing law

The place of performance is Dülmen.

For contracts with commercial traders, legal entities under public law or special funds under public law, the court with subject-matter and local jurisdiction for som-software has jurisdiction over all disputes arising from this contract, its formation or validity, and proceedings relating to bills of exchange and cheques.

For international contracts, the German court with local and subject-matter jurisdiction for som-software is agreed. The law of the Federal Republic of Germany applies.

Section 13 Severability

If one or more provisions of this contract are or become invalid or unenforceable, this does not affect the validity of the remaining contract. The parties undertake to replace the invalid or unenforceable provision with a provision that comes closest to the purpose of the contract. The same applies if a gap in the contract becomes apparent subsequently.

Section 14 Scope of application

These general terms and conditions apply only to transactions with purchasers who are businesses within the meaning of Section 14 of the German Civil Code (BGB).

Version: May 2018, som-software