Licence Terms of Chromsystems Instruments & Chemicals GmbH for the use of the CSQUANT Product

As at: 22.03.2021

 

1 Scope

These licence terms of Chromsystems Instruments & Chemicals GmbH, Am Haag 12, 82166 Gräfelfing/Munich, Germany (hereinafter "CS") and its contracting partners (hereinafter “Customers”), apply to all contracts for the CSQUANT product services (hereinafter “Licence Terms”). These Licence Terms apply also to all future business dealings, even where they are not expressly agreed once again. CS reserves the right to make reasonable changes to the Licence Terms. CS hereby rejects all divergent, contradictory or supplementary conditions of purchase, licence terms or other general terms and conditions of business of the Customer. Conditions of purchase, licence terms or other general terms and conditions of business of the Customer shall apply only where they have been expressly accepted in writing by CS.

 

2 Software services

2.1 The subject matter of the contract is the permission to use the CSQUANT Analysis Software, in the configuration selected by the Customer and confirmed by CS, as an on-premise solution in the Customer‘s IT infrastructure.

2.2 CS will make available to the Customer an analysis service, for which the configuration and user documentation shall in each case be selected and effected by CS without customer consultation. There is no obligation to provide characteristics of the software solution which is the subject of the contract extending beyond the thus defined functionality; specific customer requirements are only binding where they have been agreed additionally in writing.

CS will also undertake for the Customer

  • the set-up and commissioning of the software in the Customer‘s IT infrastructure, where this can be carried out by remote access (additional costs are charged for on-site installation)
  • training / implementation support in the course of installation
  • and further services to be agreed individually.

Further services are not the subject of the contract; this applies in particular for the interface with the laboratory data base LIMS.

 

3 Provisions and data backup by the Customer

3.1 Prior to installation of CSQUANT on its computer the Customer shall itself back up any existing data thereon and data on other components of its software/hardware infrastructure, with which the computer communicates. The Customer shall also back up its data regularly.

3.2 The Customer is put on notice that it is solely responsible for the protection of its software/hardware infrastructure from viruses and other malware and from interference by third parties.

3.3 The Customer shall provide CS – in so far as technically possible – with remote access for the installation of the software, its set-up and any necessary error analysis and fixing, with the user rights described in the user documentation and the further conditions for the orderly installation and error analysis. Where remote access cannot be given technically, the Customer shall provide physical access to its IT infrastructure for the purposes described above.

3.4 The Customer is put on notice that the installation and the orderly operation of the CSQUANT software requires a respectively compatible version of the Microsoft Windows operating system and of the software components in accordance with the user documentation.

3.5 The Customer is responsible for ensuring configuration in the software of the valuation boundaries required for its intended use of CSQUANT; the Customer must check and adjust where appropriate any sample values entered or preindexed by CS in the course of the installation.

 

4 Contract implementation, customer data

4.1 The services of CS are designed and intended for natural persons or legal entities who enter into the respective contract for the use of CSQUANT for a purpose attributable to their commercial or self-employed professional activity. Other use is excluded. The Customer shall inform CS immediately where these conditions are not met.

4.2 The scope of the services to be provided by CS is determined by the respective individual contracts.

4.3 CS acquires under the contract concluded the irrevocable right to store, copy and otherwise use the contact data provided by the Customer for the purposes of performing this contract, in particular to give it to external service providers within Germany used by CS in the performance of this contract (i.a. computer centre).

CS acquires no separate rights beyond these in any of the Customer’s data that the Customer provides to CS in the course of the contract.

 

5 Remuneration and payment terms

5.1 CS will calculate the remuneration identified for the agreed configuration according to the respectively applicable price list, depending on which service model was selected by the Customer according to its current price list.

Additional services, such as consultancy, shall be charged according to the respectively applicable price list.

5.2 If the Customer is in default of payment, CS may demand payment of statutory default interest. The Customer must confirm in writing when required to do so receipt of the invoice and the date of receipt.

5.3 All outstanding invoices of CS become payable immediately where the terms for payment are not complied with or CS learns of circumstances likely to reduce the creditworthiness of the Customer. In such cases CS may also require that outstanding services are performed only against advance payment or on provision of suitable collateral.

 

6 Set-off and right of retention

6.1 The Customer may only set-off undisputed claims or claims validated by due legal process against the claims of CS.

6.2 The Customer may only assert a valid right of retention on the grounds of counterclaims based on the same legal relationship.

 

7 Service model, rescission

7.1 The Customer may select from the service models according to the current price list.

7.2 CS reserves the right to withdraw from concluded contracts up to the provision of the services or supplies due from CS. In this event the Customer has the right only to be refunded the payments already made by it; claims in addition to this, in particular claims for damages, are excluded.

 

8 Responsibility of the Customer, usage contrary to the contract, indemnity

8.1 The Customer shall not transfer any data to CS in the course of using CSQUANT.

8.2 Any personal data transferred in the course of troubleshooting and error management shall be transferred anonymized. If it´s not possible to transfer anonymized data, the Customer has to arrange the conclusion of a data processing agreement with CS prior to sending any non-anonymized data.

8.3 In the course of using CSQUANT the Customer shall in particular respect and comply with the statutory provisions for data protection, copyright law, trade secrecy, trademark law, German unfair competition law and related areas of law and the (basic) right to the protection of the general right to privacy .

8.4 The Customer warrants that it has the right to use the data and content analysed by it in the course of performance of the contract – also and in particular in the framework of this contract.

This applies in particular for the required consent of the patients and other persons who have rights in the data and content, and in the case of special categories of personal data within the meaning of Art. 9 General Data Protection Regulation (GDPR) also for the required consent of these persons.

8.5 The Customer shall indemnify CS against all claims by third parties, including costs, arising from alleged infringements of privacy or other rights. The Customer shall bear all responsibility in particular arising from claims by third parties and the costs connected therewith.

8.6 Losses and increased costs arising from the breach of these contractual obligations shall be borne by the Customer.

 

9 Right of use of the Customer and its authorised user

9.1 The software solution provided to the Customer is legally protected. All rights under copyright law, patent law, trademark law and all other related rights in the software and in its other items made accessible to the Customer by CS in the course of the initiation and performance of the contract, remain the exclusive property of CS within the relationship of the contractual parties. Where rights belong to third parties, CS has appropriate rights of use.

9.2 CS grants to the Customer a non-exclusive, non-transferable and non-sublicensable right to use the agreed software solution and the related user documentation of CSQUANT within the agreed scope for one workplace of the Customer.

The preceding right of use described in this clause 9.2 also includes use by authorised users who are employed as staff or on a freelance basis by the Customer; this right of use does not however authorise the Customer or authorised user to undertake operations on the software, in particular analysis, decompilation and/or adjustments that are not undertaken by CS itself or a partner of CS.

The Customer warrants that each authorised user shall comply with the provisions for orderly use of the software solution in accordance with these Licence Terms.

9.3 Use of the software beyond the use permitted according to the provisions of this contract is not permitted. The Customer may not use or permit the use of the software at other workplaces, or permit use by third parties or make it accessible to third parties, in particular the Customer is not authorised to duplicate or dispose of the software, parts of it or rights in it. The Customer must also pay the fees where a third party uses the software where and in so far as the Customer is responsible for the use. Third parties within the meaning of the foregoing sentence do not include authorised users as described in clause 9.2.

9.4 In the case of serious breaches of these obligations of the Customer, CS may prohibit further use, claim additional licence payments and bring claims for damages and assert other rights against the Customer.

 

10 Warranty

10.1 In the event of a defect, the Customer may claim rectification or replacement of the service at the discretion of CS. If a defect subject to the warranty obligation cannot be rectified or if it would be unreasonable to expect the customer to accept further attempts to remedy the defect, the Customer may terminate the contract instead of rectification.

10.2 In relation to the respective software solution supplied CS warrants that the software solution satisfies the main functions apparent in its program description. Because of the multiplicity of the data, hardware and operating constellations and operating errors arising in practice however it is not possible to guarantee complete freedom from defects. It is also not possible to completely exclude the possibility of loss of data. The Customer acknowledges this.

The Customer must therefore back up its data at regular intervals. The Customer shall retain the documents necessary for any reconstruction in the event of loss of data.

10.3 The Customer must give notice of any defects to CS without delay.

10.4 CS will provide warranty service within the following service times:

Monday to Friday (excluding public holidays valid at the registered office of the company) 9 a.m. until 4 p.m.

The response time specified under the following clause 10.5 does not apply outside the service times.

10.5 CS shall respond during the service times on notice of a defect by the Customer within 24 hours (Response time).

10.6 CS will in its discretion remedy faults occurring using one or more of the following measures:

  • developing and sharing with the Customer instructions to remedy the fault
  • provision of patches or additional bug fixes to the Customer
  • transmission of a software version that no longer contains the fault

10.7 CS shall provide the aforementioned services through remote maintenance or remote diagnostic; CS shall provide the support service for the Customer on site only where in the judgment of CS debugging is not possible remotely.

The Customer is not authorised – on a fault occurring – to undertake updates, upgrades or bug fixes without instruction from support at CS.

10.8 The Customer must – in so far as technically available – provide CS with remote access to check a fault reported by it and for its remediation and prepare prior to access by CS a complete backup file of all data and databases. If remote access cannot be provided, there will be additional costs charged to the Customer for checking a fault reported by the Customer and its remediation.

10.9 The reporting of faults in the software must be made at least by email to support@chromsystems.com. The report must describe the fault (in particular the circumstances in which it occurs, symptoms and effects) comprehensibly, providing a basis for the reproduction of the fault.

The Customer must also in so far as is reasonable take such measures as will facilitate a determination of the faults and their causes. The Customer shall in particular communicate the necessary details of this to CS.

10.10 There is no obligation under the warranty where the Customer has not used the service provided by CS in accordance with its instructions.

10.11 The right of the Customer to compensation for damage shall be in accordance with the conditions in clauses 11 and 12 of these Licence Terms; § 444 German Civil Code (Bürgerliches Gesetzbuch) remains unaffected.

10.12 The Customer has a right of withdrawal and a claim to compensation for damage in place of delivery on the grounds of breach of non-performance related obligations under § 241 para. 2 German Civil Code (Bürgerliches Gesetzbuch) beyond the statutory provisions only where it has warned CS in writing in advance and the breach of duty has still not been remedied by CS.

 

11 Liability

11.1 Claims by the Customer for damages for expenditure or loss, whatever the legal basis, are limited to damage caused by CS or one of its vicarious agents or suppliers

a) deliberately,
b) by gross negligence or
c) in the case of fundamental contractual duties by slight negligence.

Fundamental contractual duties in this sense are such duties of CS that are intended to fulfil the rights of the Customer, according to the content and purpose of the concluded contract, and those duties, whose performance is essential for the orderly performance of the concluded contract and the observance of which the Customer routinely relies and has relied on.

11.2 Liability is limited to damage that was reasonably foreseeable as typical damage in similar transactions of this type at the time of conclusion of the contract or at the latest when the breach of duty occurred, unless CS is liable by reason of wilful intent or gross negligence.

11.3 Liability for the functionality of the software provided by CS is limited to the sum of the agreed remuneration.

11.4 Liability for indirect damages or loss of profits is excluded.

11.5 CS shall be liable for the loss of data in accordance with the foregoing paragraphs only where such loss would not have been avoidable by the use of suitable data protection measures on the part of the Customer. If the Customer’s stored data changes it must also carry out a back-up in relation to this without delay. Otherwise all liability of CS for loss of data is subject to the limit of the amount of the agreed remuneration or the remuneration calculated by CS.

11.6 The limitations on liability in clauses 11.1 to 11.5 do not apply in the case of fatal injury, bodily injury or injury to health, in the case of liability under product liability legislation or in the case of alternative more comprehensive mandatory statutory liability.

 

12 Limitation

12.1 Warranty claims shall become time-barred twelve months from the provision of the service.

12.2 Claims for damages, in so far as not connected to a defect, shall become time-barred one year from the end of the year in which the claim arose and the Customer discovered the circumstances underlying the claim or should have done without gross negligence.

12.3 The regulations in clauses 12.1 and 12.2 do not apply where the claims are based on a wilful or grossly negligent breach of duty by CS, a case of fatal injury, bodily injury or injury to health, in the case of liability under product liability legislation or in the case of alternative more comprehensive mandatory statutory liability.; otherwise § 444 German Civil Code remains unaffected.

 

13 Processing of personal data, separate responsibility

13.1 Where personal data is communicated by the Customer, the provision by CS of the services subject of the contract is made exclusively in accordance with the statutory provisions of the GDPR and the German Federal Data Protection Act (Bundesdatenschutzgesetz).

13.2 The Customer remains responsible for compliance with the provisions of the GDPR and the German Federal Data Protection Act, the additional relevant data protection regulations and professional regulations, where and in so far as it functions as data-processing body for the processing of its personal data and that of patients. In this respect CS assumes no responsibility for the processing of personal data.

 

14 Final provisions

14.1 Exclusively German substantive law shall apply, to the exclusion of international agreements (e.g. CISG).

14.2 It is agreed that Munich is the place of performance and has exclusive jurisdiction.

14.3 Only this version of the Licence Terms is legally binding. The same shall apply in respect of every amendment or addition to these Licence Terms in so far as no other agreement has been reached.

14.4 The assignment of rights and claims under this contract requires the prior express agreement of the other party to the contract.

14.5 Should individual provisions be wholly or partially ineffective, this shall not affect the efficacy of the remaining provisions of these Licence Terms. The parties to the contract shall select in place of the ineffective provision a provision that comes closest commercially to the ineffective provision. The same shall apply in respect of any omission from these Licence Terms.

14.6 Amendments and additions must be in writing; this applies in particular for the amendment of this written form requirement.