Terms & Conditions
Terms and Conditions for the Use of GMG Software (Purchase and Lease), for Software Maintenance, for Services and for the Purchase of GMG ProofMedia and Hardware
§ 1 Scope, Contract Validity
(1) These terms and condition shall apply for all contracts governing
- the use of GMG Software including its documentation and/or
- the provision of software maintenance services (e.g. Software upgrades)
- GMG GmbH & Co. KG, Mömpelgarder Weg 10, 72072 Tübingen, Germany or
- one of its subsidiaries (hereafter referred to as “GMG”, “we”, or “us”)
concludes either directly or through a GMG distribution partner with an entrepreneur (hereafter referred to as “the customer” or “you”) as defined according to the regulations of § 14 of the German Civil Code (BGB), in so far as nothing contrary has been explicitly stated (as, for example, in § 2 Paragraph 3 Clause 3), and these provisions shall always take precedence over any other General Terms and Conditions of GMG.
The same shall also apply if you conclude contracts with GMG GmbH & Co. KG governing
- the purchase of GMG Proof Media and/or additional hardware and/or
- the provision of general and/or consulting services.
(2) These terms and conditions shall also apply to any future business relationships with the customer, even if it is not explicitly repeated that they shall apply. GMG does not recognize any contradictory and/or divergent terms and conditions of the customer under objection, unless GMG has agreed to this in writing in an individual case.
(3) The following “Special Terms and Conditions” shall always take precedence over the “General Terms and Conditions” as more specific provisions. The “General Terms and Conditions” shall always therefore apply in a supplementary capacity. Any other contract provisions agreed to with the customer shall always take precedence over these terms and conditions as more specific provisions. This shall apply in particular (for example) for the provision of software maintenance services (in which case the provisions of the “Software Upgrade Contract” concluded with the customer shall take precedence as the more specific provisions).
(4) Offers made by GMG are non-binding and subject to change. GMG may therefore immediately accept any offers submitted by the customer (e.g. “orders”) at its discretion by sending an order confirmation or providing the service ordered. A contract between GMG and the customer in which these terms and conditions shall be included shall only come into effect upon acceptance by GMG. This acceptance by GMG shall only apply if it is expressed in written form or GMG has fulfilled one of the main services owed according to the contract. Should the offer from GMG contain a binding deadline for acceptance, the contract shall come into effect upon the customer’s acceptance of this binding offer made by GMG.
(5) The source code shall not be considered part of the GMG Software. GMG retains all rights to the source code.
§ 2 Granting and Scope of Rights of Use, Audit, Delivery
I. General Terms and Conditions
(1) The GMG Software is the intellectual property of GMG and/or its licensor (hereafter “copyright holder”). If the GMG Software is provided to the customer on a physical data storage medium, this medium shall always remain the property of GMG.
(2) Upon full payment of the agreed price, GMG grants the customer a simple, non-exclusive, non-transferable (for clarification: also not to any companies affiliated with the customer in accordance with §§ 15 ff. AktG - German Stock Corporation Act), and non-sublicensable (for clarification: also not to any companies affiliated with the customer in accordance with §§ 15 ff. AktG - German Stock Corporation Act) right to use the GMG Software in object code in compliance to the following terms and conditions as well as any other contractual provisions that may contain more specific regulations, especially in relation to the type of use and the temporal and/or spatial scope of the rights of use that are being granted, and the right of use shall only for the purpose of processing the customer’s internal business transactions. GMG shall not be obligated to grant rights of use for the respective source code of the GMG Software, nor release the source code and/or otherwise provide access to it.
(3) If GMG does not own the copyright and/or other rights to the GMG Software, the customer shall only be granted rights of use to the extent granted by the provisions of the copyright holder (e.g. § 11 Paragraph 12). By installing or using the GMG Software, the customer declares its acceptance of the validity of the use and/or license provisions of the respective copyright holder and obligates itself to indemnify GMG against claims made by third parties relating to the breach of these conditions due to the customer’s conduct.
(4) The customer shall not hold any copyrights to the GMG Software and/or its documentation. The copyright, all commercial property protections, and any other intellectual property rights including any business secretes shall be retained by GMG or the respective third party from whom GMG attained the right to distribute or to grant the rights of use to the customer.
(5) The customer is responsible for the installation of the GMG Software. In this respect, all the installation instructions described in the respective documentation shall apply, especially in regard to the hardware and software requirements (including any Internet access) that the customer must provide.
(6) GMG delivers the GMG Software at its own discretion by (i) providing the customer with the agreed number of program copies on a machine-readable data storage medium as well as the documentation for local installation or (ii) providing the customer a link to download the GMG Software and any documentation for local installation and notifying the customer thereof, or (iii) providing the customer access to use the GMG-Software on an IT infrastructure via the Internet. For compliance with delivery deadlines and the transfer of risk for material shipment, the point in time at which the GMG Software was handed over to the transporter shall be determinant; otherwise, the point in time at which the software was made available for download or provided to the customer via the Internet and the customer was notified of this shall be determinant.
(7) Locally installed GMG Software is protected against non-contractual use either through a copy protection dongle or a hardware key. In this case, the dongle is an inseparable part of the GMG Software. A hardware key is a checksum mechanism that links the right of use to GMG Software to one (1) computer used by the customer via the hardware components of the computer used by the customer (e.g. hard drive, RAM, motherboard, network card, operating system). In the event of a renewal, extension, or other change (e.g. cancellation of the contract through termination or expiration of the contract term) to the rights of use granted to the customer as agreed to with the customer, GMG shall have the right to send automated license data electronically and thereby override the license data previously provided (e.g. on a dongle) so that the use of the GMG Software shall not longer be possible or the agreed extension (e.g. upgrade) can be used by the customer (following the execution of an installation process as necessary).
(8) As long as nothing else has been agreed in writing, the customer may only use the GMG Software on the agreed IT system and at the agreed location for internal purposes and to process customer data. In particular (i) a data processing center for third parties, (ii) the permanent or temporary provision of GMG Software to third parties via the Internet (application service providing), (iii) the granting of access to GMG Software to third parties, or (iv) the processing or converting of data for data files of third parties shall only be permitted if GMG provides written approval in advance. Furthermore, the provision of the GMG Software to companies affiliated with the customer via a data processing center shall not be permitted as long as GMG has not granted permission for this in writing. GMG may make the granting of approval contingent upon the payment of reasonable compensation.
(9) Having provided notice seven calendar days in advance, GMG shall have the right to check whether the use of the GMG Software at the business location of the customer is in compliance with the contract and GMG shall therefore have the right to look at any customer business records necessary hereto, as long as such an inspection shall not be carried out more than once per calendar year.
(10) The customer shall take appropriate measures to protect the GMG Software from unauthorized access by third parties. The customer shall keep any dongles, original data storage media, and the data storage media with any copies made in accordance with the contract as well as any documentation in a secured place for GMG until returned. The customer agrees that ownership of all copies of the GMG Software made by the customer shall transfer to GMG immediately as soon as the copies are made.
(11) The customer may only use the GMG Software at the locations, on the work stations, and in conjunction with the output devices for which the GMG Software was originally licensed. Should the customer wish to transfer the use of the GMG Software to another location, another workstation and/or another output device, the customer shall be permitted to do so as long as GMG shall be informed of the planned change five work days in advance. If such a transfer leads to the installation of the GMG Software at a location for which GMG or its distribution partners do not offer services (e.g. training, support), neither GMG nor its subsidiaries, distribution partners, or agents shall be in anyway obligated to provide the customer support or maintenance services for the GMG Software, regardless of the provisions of these terms and conditions or any other agreements between the customer and GMG. If the GMG Software shall be transferred from one workstation to another workstation, the customer shall delete the GMG Software from the first workstation before using the GMG Software on the new workstation in a “production process”. For purposes of clarification: The previous provisions shall not prohibit the customer from temporarily installing the GMG Software on both workstations for the sole purpose of allowing the customer to carry out tests to ensure that the transfer of the GMG Software to the new workstation was successful.
(12) Should the customer wish to: (i) use the GMG Software to process data or data files for third parties within the framework of agreements with service offices; or (ii) make the GMG Software available at other locations, on additional workstations or output devices (e.g. as hosted applications or in any other form), the customer must always notify GMG in writing and with sufficient detail about the planned use in order to allow GMG to assess the scope of the planned use and the implications of these changes for determining the price and other provisions that shall apply to the customer (“Change Request”). Within a reasonable period of time after receiving a “Change Request” from the customer, GMG (after requesting further information from the customer, if necessary) shall inform the customer in writing whether the “Change Request” shall be denied or shall make the customer an offer to execute the “Change Request” (contingent upon the payment of additional compensation and any other provisions outlined in such an offer). If the customer accepts GMG’s offer in writing, a contract between the parties shall thereby take effect. For purposes of clarification: The customer accepts and confirms that GMG shall not have any further responsibilities in relation to the customer’s “Change Request” beyond the denial of the Change Request or the preparation of an offer for the change at GMG’s own discretion; furthermore, the customer accepts and confirms that until the point at which GMG makes an offer and the customer accepts it, the customer shall not be entitled to any (additional) rights regarding the use of the GMG Software that extend beyond the provisions of these Terms and Conditions.
(13) The customer shall only be permitted to use of the GMG Software beyond the rights of use granted in this contract with advanced written approval from GMG. Should the customer’s usage exceed the contractually agreed scope without approval (especially the simultaneous use of a larger number of users than agreed), GMG shall have the right to bill the customer for this (extra) usage in the amount corresponding to the price list(s) valid at the time of the extra usage. Until full payment of the agreed and due compensation is made, the customer shall only be permitted to the revocable use of the software. GMG may revoke at any time the use of such GMG Software for which the customer has not yet paid the outstanding balance for as long as the balance remains outstanding.
II. Special Terms and Conditions for the Purchase of GMG Software
(14) With the purchase of GMG Software, GMG grants the customer upon full payment of the agreed price the rights of use outlined in § 2 Paragraph 2 for an unlimited time and therefore permanently.
(15) GMG shall have the right to revoke the rights of use granted to the customer through a written notice if: (i) the customer culpably violates any provision of these Terms and Conditions in a considerable way and this violation could have been rectified but the customer did not do so after being requested in writing to do so within 30 days; (ii) the customer culpably violates any provision of these Terms and Conditions in a considerable way and this violation cannot be rectified; (iii) a petition has been made to open insolvency proceedings against the assets of the customer or the petition to open insolvency proceedings has been denied for lack of assets; or (iv) the customer loses possession of the dongle for reasons beyond the control of GMG, such as, for example, theft or misappropriation, or due to other circumstances. If the dongle is lost, the rights of use for the GMG Software shall completely expire, unless GMG is responsible for the loss of the dongle. GMG shall not provide a replacement for lost or stolen dongles. A damaged dongle may be replaced for a fee as long as it is presented to GMG in full with chip, storage chip, circuit boards as well as the upper and lower cover plate with seals intact.
III. Special Terms and Conditions for the Lease of GMG Software
(16) For the lease of GMG Software (whether through the transfer of GMG Software for local installation by the customer or through the use of GMG Software over the Internet via application service providing), GMG shall grant the customer upon payment of the agreed compensation the right to use the software as defined under § 2 Paragraph 2 for the agreed limited period of time.
(17) The right to use the GMG Software ends with the end of the agreed term. The use of the GMG Software after the lease expires shall be prohibited.
§ 3 Services and Consulting
(1) GMG shall only owe services (such as customizing) or consulting services if an explicit agreement has been made to this effect. In this case, GMG shall owe the professional execution of the service or consulting services. If the actual services provided deviate from the agreed description of services, GMG shall subsequently fulfill the obligations at no extra cost.
(2) Consulting services provided by GMG are based on the information that the customer makes available. GMG shall not be held responsible if the results (analyses) achieved through the consulting services prove to be unusable or inaccurate due to incomplete or incorrect information provided by the customer. The result provided by GMG through the results (analyses) of the consulting services and/or recommendations shall not offer any guarantee that the customer will actually achieve the goals defined by the customer alone or together with GMG. The achievement of such goals is dependent on a number of factors and circumstances that lie beyond the control of GMG.
(3) The customer shall be obligated to cooperate with the fulfillment of these services to the extent necessary. If the customer fails to cooperate at all or to the extent necessary and the fulfillment of GMG’s obligations is thereby impaired, GMG shall be released from its fulfillment obligation. A solely insignificant impairment shall be considered negligible in this respect. GMG shall be at liberty to fulfill the agreed obligation nonetheless. In this case, the customer shall compensate GMG for any additional costs incurred through the violation of the customer’s obligation to cooperate. Should the obligation remain unfulfilled, GMG may possibly deduct the saved expenditures. Regardless of other existing legal rights of retention, GMG may exercise its right to refrain from the fulfillment of obligations owed according to the agreement with the customer for as long as the customer fails to fully pay any balances owed or violates this contractual obligation to cooperate.
§ 4 Software Maintenance (Updates, Upgrades)
(1) GMG shall only be obligated to provide software maintenance (delivery of updates and/or upgrades) upon the conclusion of a written software maintenance contract as well as the full payment of the claims to compensation resulting thereof. The provisions of § 11 Paragraph 15 shall remain unaffected hereby.
(2) Updates ensure the ongoing alignment of existing versions of GMG Software with technological developments, especially in regard to the operating system environments of other technological devices and applications that were unforeseeable at the time that a program version was made available and were therefore not considered in assessing the compensation owed for the acquisition of rights of use for the GMG Software. GMG shall (solely) be obligated to maintain the GMG Software at reasonable discretion and thereby develop updates hereto. In particular, the expense incurred by GMG in relation to the compensation for maintenance over a longer period of time shall be determinant in this respect. An Update consists of: a) the executable machine code of the update. It may be based on the previously licensed GMG software, modifies or replaces it with a new version and b) a single right of use to the GMG Software according to the standards and scope of the provisions in § 2 and any other contractual agreements made with the customer. This right of use replaces the existing right of use, which thereby expires.
(3) “Updates” shall be differentiated from “Upgrades”, the latter of which represent the continued development or new development of functionalities of the GMG Software and whose rights of use must be compensated separately. Depending on the respective GMG Software, upgrades in relation to the rights of use granted may be optional or obligatory. An Upgrade consists of: a) the integration of new functions, b) modification to meet current program requirements, and c) modifications to adapt to current PC technologies and operating system requirements.
§ 5 Compensation, Adjustment of Compensation
(1) The customer shall compensate GMG for the allocation of rights of use to the GMG Software as well as for any other contractually agreed services to be provided by GMG and in relation to the term of use (for the lease of GMG Software) by paying the amount stated in the offer made by GMG in full and in advance upon receipt of the invoice (without any cash discount and/or other deductions).
(2) In addition to the agreed compensation, the customer must also pay the respective legally stipulated Value Added Tax in the respective amount.
(3) Should it be determined that the customer used the GMG Software above and beyond the scope of use granted in § 2, GMG shall have the right to invoice the customer for this additional use according to the respectively valid GMG price list. Any other claims of GMG shall remain unaffected by this.
(4) After the expiration of the contractually agreed (initial) limited term of a continuous obligation, GMG shall have the right to increase or decrease the agreed compensation or a portion thereof with reasonable discretion. The adjustment shall only be binding for the customer if it shall be equitable. Should the adjustment fail to be equitable, the determination shall be made by court judgment.
(5) GMG shall inform the customer of price increases according to the provisions agreed in § 5 Paragraph 4 at least three months in advance of the planned date of effectiveness in text form. Should a price increase exceed more than 8% of the price valid at the time of the increase, the customer shall have the right to terminate the contract in writing within four weeks of receiving notice of the price increase, effective the date on which the price increase was to take effect (Special Right of Termination).
(6) If the customer does not exercise the special right of termination granted or does not do so in the correct form or within the correct time frame, the contract shall remain in force with the increased compensation from the date named in the notice issued by GMG. GMG shall inform the customer in the notice of the price increase of the consequences of not exercising the right to terminate or an invalid termination. If the customer terminates the contract in the correct form and by the deadline, the contract shall expire on the date named in the notice as the date on which the price increase takes effect.
(7) In the case of a change in the legally due Value Added Tax, GMG shall have the right to adjust the price accordingly for an increase and shall be obligated to adjust the price for a decrease, irrespective of the above-named limitations.
§ 6 Legal Validity, Limited Term, Automatic Renewal, Termination
I. General Terms and Conditions
(1) The contract with the customer shall take effect upon the acceptance of the customer’s order by GMG or the customer’s acceptance of a binding offer from GMG (§ 1 Paragraph 4).
(2) For unlimited rights of use paid for with a one-time payment (purchase), no (ordinary) termination shall occur.
(3) The customer may only claim rights due to interference with the basis of the transaction (“Störung der Geschäftsgrundlage”) if GMG was informed in writing of the relevant circumstances hereto prior to the signing of the contract. Recognizability shall not be sufficient.
(4) The right of the parties to exceptional termination shall remain unaffected by any of these provisions.
(5) A termination must be stated in writing.
(6) In the event of the expiration of a right of use (regardless of reason), the customer shall be obligated, at the latest on the calendar day following the expiration of the contract, to (i) refrain from the use of the GMG Software, (ii) to return any copy protection (e.g. Dongles) received from GMG to GMG, (iii) to remove the GMG Software from its IT systems, (iv) to permanently and irrevocably delete the GMG Software or, if GMG shall demand, to otherwise permanently and irrevocably destroy the GMG Software, and (v) to confirm and provide proof of the deletion or destruction to GMG in writing, and (vi) at GMG’s discretion to either return all physical data storage media that contain the GMG Software to GMG or to properly destroy all physical data storage media that contain the GMG Software and to provide GMG with proof of the proper destruction, and (vii) to hand over all documentation to GMG. Should the customer fail to send the confirmation of deletion and/or the customer continues to use the GMG Software, the customer shall have to pay GMG an appropriate contractual penalty at the amount determined by GMG with reasonable discretion and this amount may be reviewed by the court of jurisdiction in the event of a dispute. GMG shall retain the right to claim further damages, taking into account the contractual penalty.
(7) In addition, the customer shall be explicitly notified that the customer may not use the GMG Software and/or its documentation after the expiration of the contract - regardless of which form or to which extent - and that, in the event that the customer does not comply, the customer is in violation of the copyright (in particular) of the right holder.
II. Special Terms and Conditions for the Lease of GMG Software
(8) The contract with the customer has a limited term as named in the offer issued by GMG.
(9) The contract shall renew automatically after the expiration of the first limited term for another limited term of twelve months, respectively, as long as nothing else has been agreed or one of the parties has terminated the contract ordinarily at least three months prior to the expiration of the respective limited term. As a precaution, the application of the provisions of § 545 BGB (German Civil Code) shall be excluded.
(10) GMG shall have the right terminate the contract with the customer for the GMG Software without advance notice for significant cause, especially in as far as and to the extent that
- the customer has failed to pay the agreed compensation or a not insignificant portion of the agreed compensation on time,
- a petition has been made to open insolvency proceedings against the assets of the customer or the petition to open insolvency proceedings has been denied for lack of assets,
- the customer uses the GMG Software in violation of the contract,
- the customer cedes the use of the GMG Software to third parties in violation of the contract, and/or
- in as far as and to the extent that the customer uses the GMG Software by means of application service providing and the existing contract between GMG and the respective operation of the data processing center ends - regardless of the legal basis for this - and GMG can therefore no longer fulfill the respective services of the contract or can no longer fulfill them properly.
III. Special Terms and Conditions for the Maintenance of GMG Software
(11) The contract with the customer (e.g. software upgrade contract) has a term limited to the time period named in the offer issued by GMG.
(12) The contract shall renew automatically after the expiration of the first limited term for another limited term of 12 months, respectively, as long as nothing else has been agreed or none of the parties has terminated the contract ordinarily at least 3 months prior to the expiration of the respective limited term.
§ 7 Reproduction
(1) The customer may make copies of the GMG Software to the extent that this shall be necessary for the use of the software in accordance with the contract and indispensable according to the provisions of § 69d Paragraph 1 UrhG (German Copyright Law). The only reproduction activities authorized shall be the installation of the GMG Software from one data storage medium or by download on one data storage medium of the hardware used by the customer as well as the loading of the software in part or whole from this data storage medium into the RAM and then into the CPU and graphic card of the hardware used by the customer. Otherwise, the right of GMG to the online copy shall be exhausted in the same way as if the customer had received the software on data storage medium. Other reproductions (including the printing of the program code on a printer and the photocopying of the program) shall not be permitted.
(2) The customer may copy the GMG Software one time for backup purposes. Copies may only be made for other reasons with the advance written consent of GMG. The customer shall be obligated to take over all existing proprietary notices on the software (e.g. copyrights, trademarks, brands) from GMG and its licensors on all copies. Backup copies in particular must be explicitly labeled as such.
(3) The customer shall not have the right to use such a backup copy productively, unless the data storage medium normally used by the customer for production purposes on which the GMG Software is saved has been damaged or cannot be used for other reasons.
(4) The customer may neither sell, nor gift, nor lend, nor sublet, nor lease the GMG Software, the documentation, and/or the rights of use hereto to third parties.
(5) The customer shall not be permitted to remove or circumvent any protection mechanisms that exist to prevent the unauthorized use of the GMG Software, unless this shall be necessary to achieve the problem-free use of the program.
§ 8 Decompilation, Modification of the GMG Software
(1) The reverse translation of the provided program code into other code forms (“decompilation”) as well as any other method of reverse engineering of the different development stages by the customer shall not be permitted and may only be undertaken within the limits of the provisions of § 69e UrhG (German Copyright Law), in as far as and to the extent that they are undertaken in order to attain information necessary to establish interoperability with an independently acquired computer program and this information cannot otherwise be obtained. The customer shall therefore first request the needed information from GMG - in return for compensation to GMG for expenses incurred.
(2) A further prerequisite for decompilation is that the reverse engineering or program observation shall be carried out in such a way that the program code is not printed out on a printer.
(3) Copyright notices, serial numbers, and any other program identification features may not be removed or altered for any reason. The same applies to any repression of such features on display screens.
(4) Modifications to locally installed GMG Software by the customer shall otherwise be prohibited, unless such modifications shall exclusively serve to remedy a defect and GMG had defaulted with respect to the remedy this defect. In the latter case, the customer shall have the right to commission only a third party in commercial business to remedy the error who shall not be a competitor of GMG in so far as it seems possible that undertaking the error remediation would result in the exposure of important program functions, processes, or trade secrets of GMG.
(5) The customer shall only be permitted to undertake modifications, extensions, and other alterations to the GMG Software according to the provisions of § 69c No. 2 UrhG only to the extent that the law permits such as indispensable. Such modifications may only be used for the customer’s own internal business operations. The customer shall be prohibited from disclosing the customer’s own work to third parties, whether it be with or without compensation, or from any other kind of commercial use including the use of the technical solutions or modules in the GMG Software for other purposes than the use set out in the contract. The customer shall always allow GMG to inspect the customer’s own work immediately upon written request.
§ 9 Additional Cooperation and Care Obligations of the Customer, Service Transfer Point
I. General Terms and Conditions
(1) The customer shall undertake all measures necessary to ensure the proper and smooth operation of the customer’s IT systems (hardware and software, networks, etc.), internet connections and printers as well as measuring instruments.
(2) The customer shall take appropriate measures to protect the GMG Software from unauthorized access by third parties.
(3) The customer shall instruct employees on compliance with the provisions of these terms and conditions and the copyright. In particular, the customer shall inform employees that making copies of the GMG Software and its documentation beyond the scope permitted in this contract shall be prohibited.
(4) Should an employee of the customer infringe upon the copyright of GMG, the customer shall be obligated to make every effort to cooperate in the clarification of the copyright infringement, especially providing GMG immediately with information about the relevant acts of infringement.
(5) The customer shall be obligated to maintain remote maintenance access for GMG to process requests or establish complaints for the entire term of this contract. The customer shall give GMG all information necessary for this (e.g. Login ID, password) and also take all advanced measures required to do so. If the customer does not provide GMG with the above-mentioned remote maintenance access, GMG shall have the right to perform the services on-site at the applicable daily compensation rates.
(6) The parties agree that GMG shall execute the contractural transfer of the GMG Software for use up to the network interface between the GMG data center and the public web (“Service Transfer Point”). The transfer of the GMG Software occurs when the GMG Software is made available.
(7) This contract does not cover the setup and upkeep of the customer’s Internet access as necessary for the use of the GMG Software and therefore to the fulfillment of the obligations owed by GMG. The customer alone shall bear all responsibility for (i) the functionality (especially the availability) of its Internet access, including the transmission paths as well as (ii) the existing IT infrastructure, especially at its business premises.
II. Special Terms and Conditions for the Lease of GMG Software
(8) If the customer uses the GMG Software via application service providing, the parties are agreed that GMG shall fulfill the contractually obligated transfer of the GMG Software for use up to the network junction of the IT infrastructure used by GMG and the public network (service transfer point). The delivery of the GMG Software shall therefore occur when it is made available. GMG shall make every effort to ensure normal availability (up to the service transfer point). The delivery of locally installed GMG Software shall occur with the execution of the installation.
§ 10 Force Majeure
(1) “Force majeure” means the occurrence of an event (or circumstance) that hinders a party from fulfilling one or multiple of its contractual obligations outlined in the contract, if and to the extent that the party affected by the hindrance proves that: (a) this hindrance is out of the party’s reasonable control; and (b) it was not reasonably foreseeable when the contract was signed; and (c) the effects of this hindrance could not have be prevented or overcome by the affected party in a reasonable way.
(2) Until proven to the contrary, it shall be assumed that the provisions set out in § 10 Paragraph 1 lit. (a) and/or lit. (b) shall be fulfilled in the event that the following events shall affect the one party: (i) War (declared or undeclared), hostilities, attacks, foreign enemy activities, extensive military mobilization; (ii) civil war, revolt, rebellion, revolution, military or other seizure of power, uprising, acts of terror, sabotage, or piracy; (iii) currency and trade restrictions, embargo, sanctions; (iv) legal or illegal official acts, compliance with laws or government orders, expropriation, confiscation of factories, requisition, nationalization; (v) plague, Ebola, epidemics, pandemics, natural catastrophes or extreme nature events; (vi) explosion, fire, destruction of equipment, and extended breakdown of means of transport, telecommunications, information systems, or energy sources; (vii) general labor disturbances such as boycott, strike and lockout (legal or illegal), go-slow, occupation of factories and buildings.
(3) A party who successfully invokes this clause shall be released from its duty to fulfill its contractual obligations and from any liability and/or any other contractual remedies for breach of contract from the point at which the impediment hindered performance as long as the other party was notified of this without delay. If notice is not provided without delay, this release will take effect when the other party receives notification. If the effects of the impediment or event invoked are temporary, the consequences just described shall only apply for as long as the impediment invoked impedes performance by the affected party. Should the length of the impediment invoked result in the deprivation of what the contractual parties could reasonably expect from the contract to a significant degree, either party shall have the right to terminate the contract by notifying the other party within a reasonable time period. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.
(4) The provisions of § 10 Paragraph 3 shall apply accordingly to any effects of the COVID-19 pandemic.
§ 11 Warranty for Material Defects
I. General Terms and Conditions
(1) Technical data, specifications and performance details in public statements, especially in advertising materials, shall not constitute declarations of characteristics. The functionality of GMG Software shall be based originally on the GMG data sheet valid at the time the contract was signed, any product description that may have been provided by GMG, and any supplemental agreements made hereto. GMG shall not owe any further qualities. In particular, the customer cannot derive any such obligation from other presentations of the software in public statements or in the advertising of GMG as well as its employees or distribution partners, unless the additional characteristic was explicitly confirmed by GMG in writing. Otherwise, the GMG Software must be suitable for the use set out in this contract and otherwise display characteristics that are customary for software of the same type. In particular, the customer must ensure that the GMG Software shall satisfy the customer’s requirements.
(2) GMG shall remedy any possible defects of GMG Software that significantly affect its usability within a reasonable period after being notified by the customer accordingly. The remedy of the defect shall be fulfilled at GMG’s discretion through a free repair (e.g. provision of a temporary solution or bug fixes or patches) or a replacement, if and to the extent that the following preconditions are met: (i) the customer notified GMG of the defect immediately after detection in a comprehensible and detailed way that took into account all information necessary for identifying and rectifying the defect (in particular, the customer will note the steps that lead to the occurrence of the defect as well as the effects and appearance of the defect), (ii) the error that led to the defect can be replicated by GMG on the systems of GMG, and (iii) the error that led to the defect did not result from the combination of the GMG Software with hardware, software, IT systems and/or other peripheral devices of the customer that are not supported by GMG or the result of unauthorized modifications to the GMG Software by the customer and/or third parties. Shall the rectification of the defect not be successfully accomplished within a reasonable deadline and shall it continue to fail within a further reasonable deadline set for GMG by the customer, the customer shall be entitled to the statutory rights.
(3) However, in the case of locally installed GMG Software, GMG shall not owe the installation of bug fixes, patches, etc. .
(4) GMG shall have the right at any time to rely on the use of a subcontractor, in particular for the fulfillment of warranty obligations. Support services and/or software maintenance services must be agreed to separately and paid for accordingly (§ 4 Paragraph 1). The further development of the GMG Software shall also not be owed.
(5) The customer shall assist GMG within the bounds of reason in the identification and remedy of errors to the best of its ability. The customer shall allow GMG to access the GMG Software to search for and remedy errors, either directly and/or by means of remote data transfer at GMG’s discretion.
(6) There is no defect in the GMG Software if and to the extent that (i) the GMG Software is being used by the customer in functional connection with hardware and software components already on hand or acquired from third parties as long as the malfunction is not being caused by the GMG Software or its lack of compatibility, or (ii) a malfunction has resulted because the customer did not ensure compliance with the technical requirements that, for example, are listed in the documentation and supplementary materials. If GMG explicitly ensured compatibility with a third-party product, this shall only apply to the current product version at the time of this assurance and therefore not to older or future product versions (updates or upgrades) of this product.
(7) The customer shall have no warranty rights if the customer either made changes to the GMG Software or had a third party make such changes without advance written approval by GMG.
(8) If any defects claimed shall not be attributed to GMG, the customer shall have to compensate GMG for the time and any costs incurred to investigate and/or remedy the alleged defect at the respectively valid hourly rates of GMG.
(9) The adaptation of the GMG Software for changed conditions of use and technical and functional developments, such as changes to the IT environment and in particular changes to the hardware or the operating system, as well as alignment with the range of functions of competing products, or the establishment of compatibility with new data formats, shall not be covered by the above-mentioned obligation to ensure functionality and therefore shall not be owed by GMG.
(10) Should GMG give the customer as part of the repair any supplements (e.g. patches, additions to the documentation) or a new version of the locally installed software (e.g. update or upgrade) that shall replace the previously provided GMG Software (“old software”), these supplements and/or new versions shall also be subject to the provisions of these Terms and Conditions. Should GMG provide the customer with a new version of the locally installed GMG Software, the entitlements of the customer in relation to the old software shall lapse as soon as the customer productively uses the new GMG Software, even if GMG does not explicitly request the return of the old software.
(11) GMG shall accept no liability for advice provided as a courtesy to the customer by employees or agents of GMG that lie outside the contractually obligated scope; this shall also apply to any help provided accordingly in this respect.
(12) Furthermore, the customer accepts and confirms, regardless of the general validity of the above-mentioned provisions, within the confines of the maximal scope permitted according to the law, that the elements of the GMG Software and its corresponding documentation (the “excluded components”) that are delivered by ADOBE SYSTEMS INCORPORATED, ADOBE SYSTEMS SOFTWARE IRELAND LIMITED and/or their respective suppliers (collectively referred to as “ADOBE PARTIES”) are provided by GMG to the customer on an “as is” basis, without any promises or guarantees. Regardless of the general validity of the above-mentioned provisions, neither GMG nor the ADOBE PARTIES assume any kind of warranty in regard to the excluded components, whether explicit or implicit, out of trade, use, sale and/or according to legal provisions. With respect to the excluded components, in particular, any guarantees of the marketability, the suitability for certain purposes, the property rights, the upholding of the rights of third parties to intellectual property, tacit use, and system integration shall be excluded. The customer shall not have the right in the name of GMG or the ADOBE PARTIES to make explicit or implicit promises or guarantees with respect to the excluded components, and the customer obligates itself to undertake all necessary measures to ensure that none of its agents or employees gives such a guarantee or makes such a promise.
II. Special Terms and Conditions for the Purchase of GMG Software
(13) For purchase contracts, the statute of limits for claiming defects shall be one year following delivery. The inspection and notification requirements according to § 377 HGB (German Commercial Code) shall apply.
(14) Should the error remedy fail ultimately, the customer shall have the right to withdraw from the contract or to reduce the compensation. A withdrawal shall be excluded if the violation of obligation by GMG is only negligible.
III. Special Terms and Conditions for the Lease of GMG Software
(15) GMG shall guarantee the continued usability and availability of the GMG Software according to the above-mentioned general provisions of § 11 for the duration of this contract in the respective customary scope.
(16) If the customer uses the GMG Software by means of application service providing, the GMG Software shall be available within the customary parameters. GMG shall try to the best of its ability to achieve an annual average availability of the GMG Software of 98.5%.
(17) The right of the customer to exercise a reduction by taking a deduction from the contractually agreed compensation shall be excluded. Any possible claims of the customer for unjust enrichment or any possible claims for damages shall not be affected by this.
(18) The parties agree that the right of the customer to declare the termination of this contract for the failure to grant use according to § 543 Paragraph 2 Clause 1 No. 1 BGB (German Civil Code) shall be excluded if the repair or replacement is deemed to be a failure. Such a failure of the remedy of defect may only be assumed if and when such a remedy is impossible, GMG illegally refuses to comply or delays in an unreasonable manner, or if such a remedy would be unreasonable for the customer for another reason (§ 11 Paragraph 2, last clause).
§ 12 Copyright Violations
(1) GMG guarantees that the GMG Software does not impinge upon any copyrights of third parties.
(2) Should a third party claim a relevant violation of copyright against the customer through the GMG Software and the customer notifies GMG of this immediately in writing, then GMG shall, at it is own discretion, a) fight against or satisfy the claim and assume all necessary and reasonable costs including the reasonable costs for a legal dispute, or b) obtain for the customer the right of use without violation, or c) replace the GMG Software with a software that does not give rise to a violation of copyright if and to the extent that the customer cedes to GMG (i) sole control in the defense against and/or settlement of such claims (e.g. through acknowledgment or compromise) and (ii) GMG always provides reasonable and comprehensive information as well as reasonable assistance in the rebuttal and/or settlement of such claims.
(3) Should it be impossible to resolve a copyright violation through the measures outlined in § 12 Paragraph 2, GMG shall have the right to revoke the GMGs software and to refund the customer for the compensation paid minus a reasonable sum for the use of the GMG Software for the time during which the customer could use the GMG Software.
(4) Should the copyright violation rest on the conduct of the customer, especially the modification of deliverables, the establishment of specific work processes, or the use of the software in connection with deliveries and services not provided by GMG, the customer shall be obligated to pay the agreed compensation for the GMG Software.
(5) Subject to the provisions under § 12 Paragraph 2 and § 12 Paragraph 4, GMG obligates itself to defend the customer at its own cost against all claims made against the customer for violations of the trademarks, patent rights, copyrights, and/or other rights to intellectual property through the use of the GMG Software according to the provisions of these Terms and Conditions or to settle such claims at its own discretion, and to indemnify the customer against all claims for damages, losses, expenses and costs (including costs for any fines imposed) that a court of jurisdiction shall impose in relation to such claims; this shall apply as long as the customer (i) immediately informs GMG in writing of the threat or the assertion of such claims, (ii) cedes sole control and authority for the rebuttal and/or settlement of such claims, and (iii) offers appropriate and comprehensive information and appropriate assistance in the rebuttal and/or settlement of such claims. If the GMG Software or a part thereof shall violate the rights of a third party to a patent or a copyright, or, in the eyes of GMG, may present such a violation, GMG may, at its own discretion and own cost, either (i) modify the GMG Software in such a way that it no longer violates the rights of third parties, (ii) replace the GMG Software with materials of equal functional value that do not violate the rights of third parties as long as this shall be reasonable for the customer, or (iii) accept the return of the GMG Software and refund the customer the compensation that the customer paid for the GMG Software proportionately in relation to an assumed logical period of use for the GMG Software of three years against the actual period of use.
(6) Regardless of the provisions listed above, GMG shall accept no liability if the cited violation shall result from (i) the use of a different version than the most current release of the GMG Software, or (ii) combinations of the GMG Software with programs or products from manufacturers other than GMG.
§ 13 Liability, Data Protection
I. General Terms and Conditions
(1) GMG shall be liable for any damages incurred by the customer resulting from willful intent or gross negligence on its own part or that of its legal representatives or agents as well as any damages to life, limb, or health that can be attributed to GMG, its legal representatives, or its vicarious agents.
(2) In the case of slightly negligent breaches of obligations whose fulfillment allows for the proper execution of this contract in the first place or whose violation endangers the achievement of the purpose of the contract, the liability of GMG shall be limited to damages foreseeable and typical for this contract. The shall also apply for lost profits and lost savings.
(3) If the liability of GMG shall be limited to damages foreseeable and typical for this contract, GMG shall be liable for the amount of the contract value per contract year.
(4) Otherwise, GMG shall not bear any liability for damages caused by slight negligence. The legal rights of the customer after the expiration of a reasonable extended deadline shall remain unaffected.
(5) GMG shall not be liable for indirect or collateral damages resulting from defective GMG Software, such as, for example, downtimes, loss of production, lost profits, and increased material consumption. GMG shall be liable for the loss or damage of data only if the customer has backed up this data in a machine-readable format at adequate intervals appropriate for its application and at least once a day to ensure that the data may be restored at reasonable effort and/or expense, Should the customer fail to back up data accordingly, GMG’s liability shall be limited to the effort that would have otherwise been required to restore the data from a duly executed data backup and to the extent of damages that would have arisen through the loss of the most current data that would have also been lost with a daily data backup. GMG strongly recommends that the customer back up all data prior to the installation of any GMG Software that shall be installed locally.
(6) If the customer is told of upcoming work or other activities to be performed by GMG, the customer will check in each case whether a current data backup has been made, and if not, the customer will execute a data backup immediately and prior to the beginning of GMG’s work or other activities.
(7) GMG shall only bear liability arising out of a warranty policy for compensation for damages in so far as and to the extent that GMG issued a warranty whose express purpose was to protect the customer against the occurrence of the damage claimed.
(8) The exclusions and limitations of liability shall not apply if GMG has fraudulently concealed a defect.
(9) The claim of the customer to reimbursement of wasted expenditures instead of claims for damages in lieu of performance shall remain unaffected. The above-listed provisions shall apply mutatis mutandis.
(10) The liability set out in the provisions of the Product Liability Law (ProdHaftG) shall remain unaffected by this.
(11) To the extent that GMG shall be liable for damages that do not relate to the loss of life, limb, or health, for which slight negligence cannot be ruled out, any such claims shall have a statute of limitations of one year beginning at the end of the year in which the claim originated and the customer learned of the circumstances giving rise to the claim and the person of the obligor or the customer otherwise must have learned of this without gross negligence on the part of the customer.
(12) Otherwise, the liability of the parties shall be determined according to the statutory regulations.
II. Special Provisions for the Lease of Software
(13) The strict liability of GMG for defects of the software covered by the contract that already existed when the contract was signed (§ 536a Paragraph 1, 1st Alternative BGB (Alternative German Civil Code) shall be excluded.
§ 14 Export and Import Regulations
(1) The customer is aware that the GMG Software and/or services provided, work results, information, and/or know-how as well as the direct results provided for use under this contract may be subject to the export controls of the Federal Republic of Germany, the European Union, the United States of America, or other states. In addition, the customer shall not have the right to export the GMG Software without the required licenses and/or authorizations of the respective national authorities in the receiving country.
(2) If the customer is an authority or agency of the USA, the locally installed GMG Software and its corresponding documentation shall be delivered as a “commercial item” according to the definition of this term provided in 48 C.F.R. § 2.101 (Code of Federal Regulations). More specifically, these components shall be defined as “commercial computer software” and “commercial computer software documentation” according to the definitions of these terms in 48 C.F.R. § 12.212 in accordance with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 to § 227.7202-4. GMG shall provide the above-named software and its corresponding documentation to the customer as an authority or agency of the USA (a) only as a commercial item and (b) only with the same rights that accorded to all other customers according to the provisions of these Terms and Conditions.
§ 15 Retention of Title
(1) GMG shall retain ownership of the GMG Software and/or GMG products until all outstanding financial claims related to any business with the customer have been paid in full.
(2) The customer shall handle goods provided under reservation of title with care. (3) The customer shall be obligated to inform GMG without delay if a third party seizes the goods provided under reservation of title, as in the case of confiscation, as well as if any damages to or destruction of the goods shall occur.
(3) The customer shall have the right to process and resell the reserved goods in the ordinary course of business as long as the customer has not defaulted on payment and the provisions under § 2 do not prohibit the customer from this. Liens or pledges as security shall not be permitted. As a precaution, the customer shall already assign any and all claims arising from the resale or any other legal grounds related to the reserved goods (including all claims from open accounts) to GMG, without any further explanation required. GMG accepts this assignment. However, this assignment shall be limited in amount to the price of the delivered goods that GMG billed on its invoice. Priority shall be given to satisfying the portion of the claims assigned to GMG.
(4) GMG revocably authorizes the customer to collect payment in its own name for the customer’s invoices transferred to GMG as security. This collection authorization shall lapse if the customer has not properly fulfilled its payment obligations, if the customer has defaulted on payments, if the customer has become subject to foreclosure or enforcement proceedings, or if bankruptcy proceedings have been opened in court against the customer’s assets or the opening of such proceedings has been denied due to lack of assets.
(5) GMG shall always remain the manufacturer even if the reserved goods are processed and/or modified, but without any liability for GMG. If the reserved goods are further processed with other objects that do not belong to GMG, GMG shall attain joint ownership of the new item at the percentage corresponding to the ratio between the value of the reserved goods and the other processed objects at the time of processing. If the reserved goods are attached or inseparably mixed with other objects that do not belong to GMG, GMG shall acquire joint ownership of the new item at the percentage corresponding to the value of the reserved goods to the other attached or mixed objects. If the object of the customer is the main object in the attachment or mixing, then it shall be agreed that the customer shall proportionately assign GMG joint ownership of the new object. The customer shall thereby be responsible for the safekeeping of the joint ownership for GMG.
(6) If the customer should violate the terms of the contract, in particular by defaulting on payment, GMG shall have the right to reclaim the existing reserved goods after setting a reasonable grace period and to demand the assignment of surrender claims in the amount of GMG’s outstanding claims. The reclamation of these goods by GMG shall not constitute a withdrawal from the contract unless this shall be expressly stated. GMG shall have the right to utilize the reserved goods after reclamation. After subtracting an appropriate amount for the costs of this reuse, the profit from this reuse shall be offset from the amount that the customer owes to GMG.
§ 16 Non-Disclosure
(1) “Confidential Information” shall be
- all information, statements, file notes, analyses, summaries, studies, documents, know-how, data files, machine code, source code, prototypes, and any other records of any kind (whether disclosed verbally, in writing, electronically, or in any other way),
- also including any of these that may be protected by commercial and/or other property rights (e.g. draft materials for software according to § 69a Paragraph 1 UrhG (German Copyright Law)), as well as
- all (written or otherwise) file notes, analyses, compilations, studies, documents, data files, code, prototypes or any other records that have been created or will be created by one of the parties and contain this kind of information,
which the respective disclosing party has either informed, transferred, disclosed, made accessible or otherwise communicated to the receiving party and/or its employees or will do so. Confidential information shall also be all other information that either in whole or in the exact order and compilation of its parts is generally known to or readily accessible to the receiving party, which therefore is of financial value for the disclosing party and that the receiving party does not lawfully acquire, use, or disclose.
(2) Non-confidential information is information for which the receiving party can prove the following:
- it was already publicly known or became known thereafter at the time point of its disclosure as long as its knowledge or becoming knowledge did not result from a breach of law, these terms and conditions, or any other agreement made between the parties; or
- it was already known at the time at which the contract was concluded, but the being known or becoming known did not rest on a breach of a statutory regulations or an agreement made between the parties or a provisions of this contract; or
- it was communicated or otherwise made known to the receiving party by a third party after the time at which the contract was concluded, but the communication or disclosure by a third party did not occur under violation of a statutory regulation, this contract, or any other agreement made between the parties and that it was not acquired through any conduct that, given the respective circumstances, does not adhere to the principle of good faith in keeping with honest market practices.
(3) The parties mutually obligate themselves to keep all information received from each other confidential, which means (i) not to use it for another purpose other than that agreed to under § 1 of these Terms and Conditions and (ii) neither to directly or indirectly make it accessible to third parties, regardless of form and regardless of whether in whole or part, unless the party that gave knowledge of the information expressly approved each instance of such a transfer or disclosure in writing and in advance. However, GMG shall be permitted to use the confidential information within the company for the further development of its other products and services.
(4) The party receiving the information shall be respectively obligated to keep and use the information acquired in such a way that it shall not be accessible and cannot be made accessible to third parties, even without taking active action. Third parties are affiliated companies according to the provisions of §§ 15 ff. AktG (German Stock Corporation Law) However, the parties shall mutually have the right to report on the fact of their business relationship itself, and the service scope and content of the software as published by GMG may also be used in their external communications. In particular, however, this shall not include the disclosure of technical and financial details of the cooperation covered under this contract. The disclosure of this kind or comparable details shall always required a statement of approval in text form by the respective other party in advance.
(5) The parties may only provide confidential information to those employees and agents who have been entrusted with the rendering of contractual services, and then only to the extent that this shall apply to the specific tasks assigned to the respective employees within the rendering of contractual services, if these employees have also been obligated to non-disclosure. The parties shall exercise at least the same care in terms of non-disclosure as in their own comparable affairs and always exercise at the very least the necessary care. The customer is fully responsible for the actions and conduct of all its persons who could in any way violate the obligations of the customer in relation to these terms and conditions.
(6) The parties agree that the receiving party’s acquisition of confidential information through the observation, examination, deconstruction, decompilation, or testing of something (even, for example, as machine code) that was made available or transferred to the receiving party from the disclosing party, or became the property of the receiving party after the conclusion of the contract shall not be permitted and shall be considered a violation of the above-listed provisions for the protection of confidentiality, unless this is permitted on the basis of a mandatory statutory provision (e.g. Section 69e UrhG).
(7) Each party shall be obligated, at the request of the disclosing party, to hand over or delete according to data protection requirements all confidential information received from or disclosed by the disclosing party immediately upon termination of this contract, taking into account the legal retention period. The customer shall also be obligated not to develop any software programs and not to have developed such programs in which confidential information from GMG shall be used.
(8) The respective receiving party shall not in any way use or exploit (in particular to apply for patents or registered designs) any confidential information(even if this information should not fall under a legal property right), in so far as and to the extent that this contract does not include any provisions that deviate from this.
(9) The above-named non-disclosure obligations shall apply as long as this contract shall remain in effect and after termination of this contract (regardless of the legal basis) for an additional three (3) years.
(10) The customer accepts and confirms that each violation of the customer’s obligations governed under § 16 (non-disclosure) may or can lead to irreparable damage for GMG. The customer therefore accepts that in such a case, GMG shall have the right to claim appropriate protection of its interests as well as financial compensation in addition to its other rights outlined within this contract.
§ 17 Data Protection
With regard to the transfer of the GMG Software for use and/or the provision of other services, GMG shall adhere to the legal data protection regulations (in particular those set out in the BDSG (Federal Data Protection Act) and the DSGVO (General Data Protection Regulation). Additional details related to data protection in relation to the use of the GMG Software can be found in the data protection declaration for the GMG Software at https://www.gmgcolor.com/software-privacy .
§ 18 Assignment, Offsets, and Contract Transfer
(1) GMG may transfer to a third party or assign in part or whole this contract made with the customer or any claims arising thereof to a third party without the approval of the customer.
(2) The customer may only transfer or assign the contract made with GMG or any claims arising thereof to a third party if GMG has consented to this in writing in advance; GMG may deny such consent at its own discretion. Any assignment, transfer, or transmission of the contract or the rights arising thereof by the customer without the advance written consent of GMG shall be null and void and shall lead to the termination of the contract. None of the provisions of these terms and conditions are to be interpreted as granting any natural person or legal entity who is not party to this contract (with the exception of the ADOBE parties) any rights or permissions; no natural person or legal entity (with the exception of the ADOBE parties) can be a beneficiary of these terms and conditions as a third party. The provision of Section 354a of the German Commercial Code (HGB) shall remain unaffected.
(3) The customer may only offset claims from GMG if its counterclaims have been legally validated or are ready for decision or are uncontested or have been recognized by GMG.
§ 19 Special Terms and Conditions for the Purchase of GMG Proof Media and Hardware
(1) Definitions, Product Descriptions
GMG ProofMedia are tested substrates for accurate color reproduction. Other hardware sold by GMG includes, for example, label printers as well as accessories, spectrophotometers and printing ink. The product characteristics listed in the respective versions of the GMG data sheets valid at the time the contract was signed shall apply; otherwise, the usual product characteristics shall apply.
(2) Reservation of Self-Delivery
If one of the GMG products should be undeliverable because we, at no fault of our own, have not received delivery from one of our suppliers contractually obligated to deliver, we shall have the right to withdraw from the contract. We shall not be held responsible for the failure to deliver if we have concluded a so-called congruent hedging transaction with our supplier. We shall inform the customer of this unavailability as soon as possible. Any amount already paid for the order in part or whole shall be refunded as soon as possible.
(3) Shipment, Packaging, Transfer of Risk, and Notification Requirements
(3.1) A shipment shall only be sent at the request of the customer. Partial deliveries shall be permitted as long as this shall be reasonable for the customer. Deliverables shall be accepted by the customer, even if they should exhibit insignificant defects. The deliverables shall be considered accepted according to the contract and without reservation if the customer does not provide written notice of any defects 14 days after the delivery at the latest. Otherwise, the provisions of § 377 HGB (German Commercial Code) shall apply.
(3.2) The packaging shall adhere to customary commercial standards and practices. Transport routes and means shall be determined by us as long as the customer has not made any agreements with us that deviate from this and the customer fully pays for any additional costs.
(3.3) For postal delivery of GMG ProofMedia and hardware distributed by GMG, we shall have the right to insure the GMG products at the expense of the customer.
(3.4) The risk of the incidental loss and incidental deterioration of the GMG products shall transfer to the customer when the products are turned over to the carrier and prior to leaving our business premises at the latest, regardless of where the products are sent from and which party bears the cost of transport.
The products supplied by us shall not be eligible for exchange or return as long as no written agreement has been made to the contrary. In any case, returns will only be accepted when delivered at no cost to us and credited at the original purchase price. We shall have the right to charge a processing fee for returns in the amount of 10% of the purchase price. Credit notes for returns will not be paid out, but rather deducted from our next delivery; they will only be paid out if no new delivery is scheduled by the end of the calendar year following the year-end in which the credit note was issued..
(5) Prices, Terms and Conditions of Payment
(5.1) GMG shall have the right to withhold the GMG ProofMedia and hardware distributed by GMG until the purchase price has been paid in full. Invoices from GMG shall be due immediately upon receipt and without deduction.
(6) Delivery Times
(6.1) Binding delivery deadlines must be agreed to explicitly and either in writing or in text form. We shall make every effort to meet non-binding or approximate (circa., approximately) delivery deadlines and/or prospective deadlines or times that we have set. If a shipment of items has been agreed to, any delivery deadlines or dates relate to the date and time at which the items were handed over to the carrier, freight forwarder, or any third party commissioned with the transport.
(6.2) An agreed delivery deadline shall commence with the signing of the contract, as long as nothing to the contrary has been agreed to in writing or text form. The term for this delivery deadline shall not begin until all business and technical questions between us and the customer have been clarified and the customer has fulfilled all its obligations (e.g. advance payments) properly and on-time. The right to object to non-performance of the contract is reserved.
§ 20 Special Terms and Conditions for GMG ColorCard
(1) The GMG ColorCard software allows for the visualization of individually created color recipes with a digitally-produced color card. Further details are covered in the product description (e.g. data sheet).
(2) The right of use covered under § 2 Paragraph 2, § 2 Paragraph 16 shall be granted to the customer with the proviso that the customer shall use the GMG ColorCard and the software locally installed for printer management for the duration of the contract term as agreed and exclusively to print the agreed number of color cards for the customer’s own purposes.
(3) The right to use the GMG ColorCard and the locally installed software for printer management shall end either when the agreed period of use ends or the customer has printed the agreed number of color cards, whichever comes first.
(4) If the customer has not yet exhausted the agreed number of printed color cards when the agreed term of use ends, the customer has no right to a pro-rated refund of the agreed price, nor to claim (print) the unused contingent of the agreed number of color cards. Any whole or partially unused contingent of printed color card generations shall therefore lapse without replacement.
(5) The use of the GMG Software for printer management provided to the customer for local installation shall only be permitted on the computer on which the software was initially installed and activated. A new installation of the software, regardless of the reason, even on the original computer shall require an activation by GMG.
(6) The right of use for the GMG ColorCard software shall be limited during the agreed term to a maximal of ten (10) users at one location of customer and a maximum of two Epson printers (currently: SureColor SC-P5000 Violet Spectro) of the customer, which are also located at a single location, to print the agreed number of color cards and the calibration of the printers necessary for this.
(7) GMG shall provide the customer with the amount of GMG ProofMedia agreed to for the printing of the agreed number of color cards. Within one month after payment of the agreed compensation, GMG shall deliver, under reservation of self-delivery, the agreed number of GMG ProofMedia out of the respectively available GMG ProofMedia The customer can request the respectively available ProofMedia and the respective data sheets from GMG.
(8) The risk of incidental loss and incidental deterioration for the GMG ProofMedia shall transfer to the customer when the items are turned over to the carrier, regardless of the location from which the items are sent.
§ 21 Special Terms and Conditions for GMG ColorProof GO
(1) GMG ColorProof GO is a browser-based service that allows registered users to comfortably access connected GMG ColorProof systems in order to check the status of print jobs, for example, or to start an automatic calibration of a printer. The information and details about the print job as well as the printer status are sent to the GMG Cloud and saved there. The status information for a print job will be saved in the GMG Cloud for as long as the printing job is accessible in the GMG ColorProof job queue and as long as the customer’s local GMG ColorProof installation is connected with GMG ColorProof GO.
(2) Customers who have (i) properly licensed the GMG Software product ColorProof and (ii) signed a software upgrade contract (“SUC”) with GMG shall have the right to use GMG ColorProof GO at no cost for the term of the SUC.
§ 22 Modifications of these Terms and Conditions
(1) GMG retains the right to modify these terms and conditions to restore the balance of the contractual relationship. Should any such modification put the customer at a disadvantage over its position at the time at which the contract was signed, this modification shall only be effective if necessary because of technical or legal changes that arose after the contract was signed that were not certainly foreseeable when the contract was signed and GMG was not responsible for these changes, nor did GMG have any influence on them.
(2) A modification according to § 22 Paragraph 1 shall therefore only be permitted to the extent that it does not affect fundamental provisions of the contract (which means, in particular, the type and scope of the contractually agreed services and the terms of the contract as well as the provisions for termination), and the modifications shall be reasonable for the customer in weighing the mutual interests of the parties.
(3) The customer shall be notified in text form of any intended changes according to § 22 Paragraph 1 at least eight weeks before they shall take effect. The customer shall have the right to terminate the contract in writing (“special right of termination”) within six weeks of receiving notice of the modification of the General Terms and Conditions, effective on the date on which the modifications to the General Terms and Conditions take effect. (6) If the customer does not exercise the special right of termination granted or does not do so in the correct form or within the correct time frame, the contract shall remain in force with the modifications of the General Terms and Conditions from the date named in the notice issued by GMG. GMG shall inform the customer in the notice of modification of the General Terms and Conditions of the consequences of not exercising the right to terminate or an invalid termination. If the customer terminates the contract in the correct form and by the deadline, the contract shall expire on the date named in the notice as the date on which the modification of the General Terms and Conditions would take effect.
§ 23 Final Provisions
(1) The laws of the Federal Republic of Germany shall apply under the exclusion of the conflict of law provisions of international private law as and the UN Convention on the International Sale of Goods.
(2) The official language of the contract is German. A version of this GTC in any other language shall only serve to ease readability; the German version shall remain the only binding version. Should any provision of this GTC warrant further interpretation, the intended German meaning shall always be definitive and binding.
(3) Amendments or additions to this contract with the customer must be made in writing. This shall also apply for the waiver of the written form requirement. The parties are in agreement that no verbal agreements have been made.
(4) All customer statements sent to GMG in relation to these terms and conditions must be sent via courier or fax and addressed as follows:
GMG GmbH & Co. KG
Mömpelgarder Weg 10,
72072 Tübingen, Germany
Fax: +49 7071 93874-22
(5) The parties agree that the court of jurisdiction for any conflicts arising out of and/or in relation to these General Terms and Conditions of Use and/or the contract concluded with the customer incorporating these terms and conditions shall be Stuttgart, Germany.
Our Terms and Conditions apply as of 12/1/2021.