(1) All supplies, services (including services and consulting services) and offers provided by Protonic Software are made solely on the basis of the general terms and conditions defined in this agreement. Protonic Software specifically advises the customer of its general terms and conditions. (2) When requested by the customer, Protonic Software agrees to provide a copy of these general terms and conditions. These general terms and conditions are also available online at http://www.protonic-software.com and can be downloaded and printed.
(1) All supplies, services (including services and consulting services) and offers provided by Protonic Software are made solely on the basis of the general terms and conditions defined in this agreement. These terms and conditions also apply to all future business relations between Protonic Software and the contractor as presently conducted in their currently valid version. (2) Receipt of goods or services by the customer constitutes agreement with the general terms and conditions. When requested by the contractor, Protonic Software agrees to provide a copy of the general terms and conditions defined in this agreement. These general terms and conditions are also available online at http://www.protonic-software.com and can be downloaded and printed.
(1) The general terms and conditions defined in this agreement supercede any of the customer's general terms and conditions, unless the customer's general terms and conditions present an explicit advantage to Protonic Software and/or Protonic Software expressly agrees to comply with them. Counter-confirmations of the contractual partner with reference to its terms of business are expressly objected to. Protonic Software's general terms and conditions also apply if Protonic Software provides any goods and services to the customer despite knowledge of any conflicts or differences between the its general terms and conditions and those of the customer.
2.1.1. Contract formation
(1) Unless otherwise indicated, product specifications, services and prices offered by Protonic Software are legally binding for a period of 30 days from the original date of the offer. (2) The customer is legally bound to a contract request for a period of 14 days. (3) A lack of response by Protonic Software to a proposal or contract request by the customer does not constitute acceptance. A contract or proposal is only valid when agreed upon in writing by Protonic Software or if the customer accepts a Proposal from Protonic Software.
2.1.2. Validity of Protonic Software's general terms and conditions
Protonic Software's general terms and conditions as applicable to the finalized agreement are considered valid, unless any different terms or conditions are agreed upon individually.
2.1.3. Other agreements made before or after finalization of contract
(1) In an effort to avoid ambiguity, any assurances or agreements made before or after the issuance of the final written contract must be submitted in writing in order to be valid. (2) All changes and amendments to the contract must be submitted in writing in order to prevent any ambiguity. Contractual changes or amendments are only valid when submitted in writing by authorized representatives or agents of Protonic Software. (3) This written contract, when signed by both parties, constitutes the entire agreement on the performance of duties by Protonic Software.
2.1.4. Third-party contract participants
(1) For legal transactions in which the customer is not a party, any financial information provided in a sales contract (e.g. leasing) and any applicable payment terms and conditions, do not affect the validity of this contract. (2) If a distributor was party to an order, Protonic Software will not acknowledge any objections made by the customer that derived from the independent relationship with the distributor.
2.2.1. Delivery terms and delivery scope
(1) Protonic Software reserves the right to be released from its contractual obligation if no reasonable possibility of delivery exists, e.g: If the purchased goods or services can no longer be procured or cannot be procured at a reasonable price despite reasonable procurement efforts. In such a case, Protonic Software agrees to promptly inform the customer. (2) The timeline of delivery will be determined in a separate agreement between Protonic Software and the customer. (3) The agreed upon delivery timeline will be extended in reasonable proportion to any subsequent changes or additions made to the contract. (4) The delivery timeline shall also be extended in reasonable proportion to a) any unforeseen event that adversely affects Protonic Software's abilities, such as, but not limited to, acts of God, natural disasters and government-mandated bans on imports or exports b) any delays or failures in the delivery of contractually-required parts , c) a strike or lockout at Protonic Software. In the event of a) through c) the customer reserves the right to withdraw from the contract if reasonable attempts to provide delivery under the new timeline are unsuccessful. The customer will not be entitled to additional compensation unless it is determined that Protonic Software committed a breach of its obligations. (5) The circumstances described in sections 4) a) to c) shall also apply Protonic Software's suppliers and subcontracted suppliers. (6) If the impediment to delivery is determined to be more than temporary and beyond the control of Protonic Software, Protonic Software reserves the right to withdraw from the contract. Under such circumstances, the customer waives the right to make a claim against Protonic Software arising from the withdrawal from the contract. (7) Protonic Software reserves the right to make changes and/or improvement to the contractual property as long as these changes do not interfere with or undermine the original or contractually-agreed upon purpose. Documentation, such as a software manual, constitutes a binding description of the products or services to be delivered by Protonic Software.
2.2.2. Retention of Title
(1) Protonic Software retains ownership of the delivered or to be delivered product or services until any claims pertaining to these products or services and made by Protonic Software against the customer are remedied or resolved. (2) If the customer is also the dealer, then the following amendment to the previous clause applies: The customer has the right to further sell the items delivered by Protonic Software under the described reservation of title within the course of normal business. At the moment of concluding the contract with Protonic Software, the customer assigns his claims from a resale to Protonic Software. The customer is authorized to collect the debt from the purchaser himself. Protonic Software reserves the right to notify the purchaser of the assignment and to directly collect the debt if the customer did not fulfil his payment obligations. If the customer is delayed with his payment obligations, he is obliged, upon request of Protonic Software, to provide the required data, in particular the names, address and telephone number of the purchaser to whom the goods were sold, so that Protonic Software can notify the purchaser of the assignment and collect the debt directly. In the case of seizures or other impairments by third parties with the reservation of title or the assigned claims to payment, the customer must immediately inform the third party of the reservation of title and Protonic Software's ownership and also of the assignment of the claim. Furthermore, the customer is obliged to inform Protonic Software immediately by phone and stating the facts and shall also provide this information in writing upon request. The customer is furthermore obliged to notify Protonic Software of the name of the third party (parties) who are seizing the items or attaching the claims or causing any other impairments so that Protonic Software is able to protect its legal interests with respect to the third party.
2.2.3. Payment obligation of the customer
(1) If installation, assembly and equipment are required for establishing the operational readiness of the products or services delivered by Protonic Software, these services will be invoiced separately by Protonic Software, unless the parties have expressly agreed otherwise. The amount of costs will be determined according to Protonic Software's price list that is valid at the moment the service is provided. All support services offered by Protonic Software and that the customer wishes to make use of (e.g. installation, demonstration of operational readiness, briefing, training or consultation) shall be paid separately at cost. The amount of the hourly rates, travel or other ancillary expenses shall be taken from Protonic Software's currently valid price list. (2) The customer shall be responsible to pay price increases and increases in the statutory value added tax when the deliveries or services take place as agreed later than five months after conclusion of the contract. The same applies when the delivery or service take place later than five months after conclusion of the contract for reasons for which the customer is responsible. If these time conditions do not apply, the customer is entitled to withdraw from the contract within 14 days of receiving notice of the price increase. The receipt of the customer's declaration of intent at Protonic Software shall determine compliance with this deadline. In the case of a transaction in which a consumer is not involved, the customer is not entitled to the above mentioned right of withdrawal.
2.2.4. Offsetting, assignment, retention, transfer of rights and obligations
(1) The customer can only offset claims against Protonic Software or assign them only if Protonic Software has not disputed such claims or if they have been legally determined. (2) The customer may not assert a right of retention based on another contract with Protonic Software. (3) Protonic Software is entitled to transfer rights and obligations from the contract to a third party. Protonic Software shall notify the customer of the transfer of obligations. The customer is entitled within a period of two weeks, starting from the moment of receiving the notification of transfer, to withdraw from the contract. Compliance with this deadline shall be determined based on the timely receipt of the declaration of intent at Protonic Software. In the case of a transaction in which a consumer is not involved, the customer shall not have the right to withdraw from the contract due to the transfer of obligations; in this case the transfer of obligations to a third party shall be effective also without the agreement of the customer when Protonic Software has a legitimate interest to do so, Protonic Software informed the customer of this legitimate interest and the interest of the customer is not considerably impaired due to this transfer of obligations. If these three requirements do not apply, the customer can withdraw from the contract according to the provision specified in 3) clause 2 and 3.
2.2.5. Passage of Risk
(1) The risk of accidental loss of the goods to be delivered is transferred to the customer as soon as they are handed over to the customer. Handover shall be considered as having taken place when the customer delays acceptance. (2) In the case of a transaction in which a consumer is not involved, the risk of accidental loss of the goods to be delivered is already transferred to the customer at the moment the shipment is transferred to the person performing the transport or has left the warehouse for the purpose of shipment, also in the case of delivery without transport charges, and when the customer desires shipment of the goods expressly or implicitly, especially by specifying the delivery address. If delivery is delayed due to the wish of the customer, the risk of accidental loss shall be transferred to the customer when the customer is informed of readiness for shipment, whereby Protonic Software is entitled, but is not obliged, to insure the delivery in the name of and at the expense of the customer.
2.3.1. Customer default of payment
(1) If the customer is late in making payments and is again reminded to make the payment according to the deadline, the customer is still considered in default. (2) Protonic Software can, without prejudice to any other rights, demand the return or take back products that have been delivered to secure its claims if the customer defaults on its payment obligations. Protonic Software must first inform the customer of this measure and have set a reasonably extended deadline for payment. Within one month of taking back the products, Protonic Software shall notify of what other rights Protonic Software intends to assert in relation to the customer's failure to pay. This one-month period starts when Protonic Software has received all products back from the customer. (3) Protonic Software may suspend the performance of a contract or a number of contracts that are closely related in terms of time and subject matter if the customer defaults on a payment or if there are justified reasons to believe that the customer will soon become insolvent. In this case, Protonic Software may also demand concurrent payment or partial payment, even if it has been agreed in the contract that Protonic Software must perform in advance. Protonic Software shall also be entitled to demand sufficient securities for claims that have not yet come due. If the customer does not provide the requested securities or not in a sufficient amount, Protonic Software can withhold performance and assert the claims arising from the customer's breach of duty.
2.3.2. Customer default with acceptance of the service
(1) If the customer does not accept the contractual services offered according to agreement, Protonic Software shall have the right, after expiration of a reasonable deadline, to make other use of the goods to be delivered. In this case, Protonic Software will supply the customer with replacement goods within a reasonably extended deadline. For Protonic Software, there shall be no obligation to provide a replacement shipment if the purchased goods or services can no longer be procured or cannot be procured at a reasonable price despite reasonable procurement efforts. Under these circumstances, the customer's right to replacement shall lapse after Protonic Software notified the customer of the impossibility or significant complication unless the customer agrees to the alternative delivery options offered by Protonic Software. (2) In the case of a transaction in which a consumer is not involved, if the customer does not accept the services offered by Protonic Software according to the contract and therefore the customer is in default of acceptance, Protonic Software shall have the right, without having to provide any evidence, to demand compensation of 20 % of the agreed price for the service as compensation. Protonic Software reserves the right to claim higher damages in accordance with the actual loss. The customer shall have the right to prove that Protonic Software suffered only a much lower loss or no loss at all. (3) If shipment of the goods is delayed upon customer request, Protonic Software shall be entitled, in the case of a transaction in which a consumer is not involved, to charge the customer for costs resulting from storage, and at least 0.017 % of the invoice amount for each day or part of a day. Protonic Software shall have this right as from the first month after notifying that it is ready to ship.
2.3.3. Warranty obligations of Protonic Software / inspection obligations of the customer
(1) The warranty obligations start with the delivery of the products. (2) In the case of a transaction in which a consumer is not involved, the warranty periods start, when shipping the goods, at the latest within two weeks of shipment of the goods. (3) In the case of a consumer goods purchase (§ 474 German Civil Code) the warranty period for new goods is two years and one year for used goods, providing that Protonic Software willing concealed a defect in the supplied items. This shall not be affected by the disclaimer of warranty regulated below in section (10). (4) In the case of a transaction in which a consumer is not involved, the warranty period for new goods is one year, and a warranty is not provided for used goods, unless Protonic Software willingly concealed a defect in these cases. Remaining unaffected by the prior specification of the warranty periods, the disclaimer of warranties and the counter-exceptions regulated below in section (5) [Exclusion of warranty in case of expiry of the time limit provided in case of a delayed report] and (10) [Exclusion of warranty in the case of defects for which Protonic Software is not responsible and that arise from the customer environment; purchase of software directly from the manufacturer, especially by means of download] remain unaffected. (5) In the case of a transaction in which a consumer is not involved, after receiving the goods, the customer must immediately check for defects, and in particular for differences in quantity and other obvious defects (§ 377 German Commercial Code). Obvious in this case shall be understood as defects that are so evident that they would be easily noticed by an average buyer without paying particular attention and without close inspection. The customer must inform Protonic Software of any defects (differences in quantity and obvious defects) in writing within five business days (= business days are Monday to Friday) after delivery. After expiry of this time limit, all warranty claims due to differences in quantity and obvious defects are excluded. It shall be sufficient to submit the notification to safeguard the deadline. The customer has the full burden of proof for all preconditions for making a claim, in particular for differences in quantity and obvious defects, the time these defects were discovered and that the notice to Protonic Software was sent in good time. (6) In the case of a transaction in which a consumer is not involved, Protonic Software shall have the option to remedy defects by repairing or replacing the goods (subsequent performance). Protonic Software shall have the right to consider which option to exercise for at least 48 hours, based on two business days (= business days are Monday to Friday), calculated from the time that Protonic Software received notice from the customer. The customer shall accept a maximum of three attempts to rectify the problem. If the subsequent performance fails, the customer can chose between a reduction in the purchase price (abatement) or cancellation of the contract (withdrawal). However, the right to withdrawal is excluded in the case of minor contract breaches (breach of duty), and in particular minor differences in quantity. (7) If, in the case of a transaction in which a consumer is not involved, the customer selects to withdraw from the contract after a failed subsequent performance, he shall not have the right to any damage claims against Protonic Software due to the defect. (8) The customer shall support Protonic Software in rectifying the defects as far as reasonably possible. (9) If the errors are found to be based on circumstances for which Protonic Software is not responsible, rather result from the customer's environment and area of risk, the warranty obligation shall not apply. This applies, for example in the case of malfunctions resulting from the use of unsuitable operating material or failure to observe the installation requirements. The warranty shall also be voided if the customer makes changes to or interferes with the goods, unless the customer can prove to Protonic Software in connection with the error message that the interference was not the cause of the error. If the customer receives updates or upgrades directly from the manufacturer of standard software (e.g. via an online download via internet), Protonic Software shall not be liable for any resulting errors or defects. The customer is responsible for providing proof that an error or defect was not caused by an update or upgrade received from the software manufacturer. The applicable presumption in favor of the consumer provided by § 476 of the German Civil Code remains unaffected. (10) The customer shall immediately inform Protonic Software in an understandable form of any errors that occur in spite of regular contractual use, providing information that is suitable for error rectification. At the request of Protonic Software, this notification shall be provided in writing in the interest of both parties. In the case of hardware components that include software, error rectification shall take place at the offices of Protonic Software. In the case of a transaction in which a consumer is not involved, the customer shall be responsible for keeping all technical systems in operation at its own cost for the duration of the warranty period; this also applies for telephone connections and transmission lines. (11) If Protonic Software acted due to an error report from the customer without an error being present, Protonic Software shall have the right to request reimbursement from the customer for the expenses involved. (12) The customer's claim for error rectification shall be excluded when the error cannot be reproduced or cannot be demonstrated using machine generated output.
2.3.4. Limitation of damage claims due to breaches of duty classified as slight negligence or data loss
(1) In the case of breaches of duty classified as slight negligence, the liability for damages of Protonic Software shall be limited to the foreseeable, typical and direct damage that is usual for the type of goods and services. (2) In the case of slightly negligent violations of insignificant contractual obligations, Protonic Software shall not be held liable for damages. (3) In as far as Protonic Software liability is limited or excluded, this shall also apply in relation to the personal liability of legal representatives, employees, freelance staff, other representatives and vicarious agents of Protonic Software. (4) The above limitations of liability pursuant to section (1) to (3) do not apply to customer claims under the product liability act or claims made on the grounds of injury to life, limb or health. (5) Damage claims of a customer against Protonic Software due to loss of data are excluded if the damage would not have occurred had the customer implemented a proper data backup system.
If the Protonic Software customer is also a dealer, the following conditions also apply: (1) In the case of a consumer goods purchase between the dealer and a purchaser, in relation to the dealer, Protonic Software has the right, but is not obliged, to satisfy the warranty claims of the consumer in connection with the goods delivered by Protonic Software. The dealer shall accept the goods claimed to be defective by the consumer and inform Protonic Software. Protonic Software shall have the goods collected from the dealer at its own cost. Protonic Software shall have the option to either re-deliver the goods in a defect-free condition or to supply the dealer with error-free goods, who will in turn supply the consumer. Costs incurred by the dealer (§ 478 section 2 of the German Civil Code) shall be reimbursed by Protonic Software on an individual basis with the lump sum of € 15.00 plus statutory value added tax upon presentation of an invoice. Further claims for compensation of dealer expenses are excluded. (2) The dealer may only make public statements as set forth in § 434 section 1 paragraph 3 of the German Civil Code about products subject to a supply agreement between the dealer and Protonic Software with the prior written approval of Protonic Software, or according to information provided by Protonic Software about these products. If the dealer makes public statements without satisfying these requirements, any differences between the actual product features and the public statements shall not represent any product defect in the relationship between Protonic Software and the dealer.
(1) Any contract concluded between the customer and Protonic Software shall be subject exclusively to German law. The application of the uniform international sales law (EKG and EAG) and the UN Convention on Contracts for the international Sale of Goods is excluded unless Protonic Software becomes the supplier or service provider. (2) The contract language is German. (3) If the customer is a business owner or a merchant, a body corporate under public law, a special fund under public law, the place of jurisdiction for all disputes that arise from the contract relationship shall be Hanau. Protonic Software shall also have the right to take legal action at the headquarters of the customer. (4) Furthermore, Hanau shall also be the court of jurisdiction if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, if he moved his residence or usual abode outside of Germany after concluding the contract or if his residence or usual abode is not known to Protonic Software at the moment action is filed. Protonic Software shall also have the right to take legal action at the residence of usual abode of the customer. (5) In the case of legal transactions in which a consumer is not involved, the place of performance for deliveries and services by Protonic Software as well as place of payment for customer payments is Hanau. (6) The export of data processing equipment is subject to special export control provisions. Export requires approval by the responsible authorities.
(1) If individual terms of these provisions are fully or partially ineffective or lose their effectiveness or if there is a gap in the provisions, this shall not affect the validity of the remaining provisions. Any terms or conditions that cannot be legally upheld or any unintentional omissions or ambiguity in the wording of this agreement that provide a means of evading compliance will be replaced by new terms and/or conditions that most closely resemble the original intention of both parties.
The online shop is managed at Protonic Software's corporate headquarters Protonic Software GmbH HRB Hanau 7009 Frankfurter Landstr. 52 63452 Hanau / Germany VAT no. DE-141626867