General Terms and Conditions - CERTAIN GmbH - Version 1.1 21012024 - Origin German Version 1.1
GENERAL TERMS AND CONDITIONS
I. Object of the Contract
The company CERTAIN GmbH (hereinafter referred to as "CERTAIN") provides its customers with cloud-based software for use. CERTAIN's application guides the customer through the CE marking process online, from standards research to risk assessment, and on to the creation of documentation in accordance with the current EU regulations for machinery safety. The provisions of these General Terms and Conditions (GTC) apply correspondingly to all other software applications developed by CERTAIN.
II. Scope; Conclusion of Contract
These General Terms and Conditions apply to all orders placed by the customer online with CERTAIN, referring to CERTAIN or other aforementioned software applications (as per Section I, "Object of the Contract"). CERTAIN and all other applications by CERTAIN are exclusively intended for entrepreneurs as defined in § 14 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)). All deliveries, services, and offers by CERTAIN are made exclusively based on these General Terms and Conditions. The GTC shall apply to all future business relationships with companies, even if not expressly agreed upon again. Any general terms and conditions of the customer conflicting with these GTC are hereby objected to. The contract language is exclusively German. The currently valid General Terms and Conditions can be accessed and printed on the website certain-cloud.com. The presentation of our product on our website does not constitute a binding offer for the conclusion of a contract. Rather, it is a non-binding invitation to the customer to submit an offer. By clicking on the "Order now with obligation to pay" button, the customer submits a binding offer to conclude a contract. After receipt of the offer, the customer receives an automatically generated e-mail confirming receipt of the order (order confirmation). This order confirmation does not constitute acceptance of the offer. A contract is concluded when CERTAIN expressly declares acceptance of the offer or activates the module booked by the customer for use.
III. CERTAIN – Services provided by CERTAIN
CERTAIN is a cloud-based software provided by CERTAIN GmbH, enabling a menu-driven execution of the CE certification process in accordance with the current EU regulations for machinery safety. CERTAIN provides a technical tool for:
Through a carefully structured list of exclusion and selection questions, customers are offered a selection of EU legislation and harmonized European standards that may be relevant to the CE certification process. CERTAIN does not replace professional or legal advice. CERTAIN neither provides professional nor legal advisory services. Due to possible misunderstandings, uncertainties, or errors in official publications, such as translation errors, errors, or incompleteness may occur in the list. The provided application allows customers to perform a risk assessment according to legal requirements. All information entered by the customer for the risk assessment comes from the customer and cannot be verified by CERTAIN for accuracy or completeness. The customer is responsible for the accuracy and completeness of the entered information. For communication and data exchange with the customer, CERTAIN provides a website via which the customer has secure, passwordless access to CERTAIN. The servers used by CERTAIN for this purpose are located in data centres and are connected to the Internet via a complex system architecture. The data centres are located in Germany. CERTAIN enables a download function for the documentation created with CERTAIN in PDF format. Whether and to what extent the customer uses this function, especially for fulfilling documentation and retention obligations, is solely the customer's responsibility. The availability of the website and data connections up to the internet handover point is at least 99% on average annually. CERTAIN notes that impairments or disruptions to the services provided may occur that are beyond CERTAIN's control, such as unauthorized actions by third parties or force majeure. The hardware, software, or technical infrastructure used by the customer may negatively impact CERTAIN's performance. CERTAIN conducts regular maintenance on the systems used to ensure network security, network integrity, service interoperability, and data protection. If possible, these maintenance works are carried out during times of low usage. If longer performance restrictions are necessary, CERTAIN will inform the customer in advance about the nature, scope, and duration of the impact. CERTAIN reserves the right to change technical standards and security features if these changes serve security improvements, are legally or regulatory required, or do not bring significant disadvantages to the customer.
IV. Customer Obligations
The customer is obligated to prevent unauthorized persons access to the web application. Additionally, the customer is responsible for ensuring that no viruses from their systems reach CERTAIN's systems. They must not circumvent or deactivate any security measures implemented by CERTAIN. Any disruptions are to be reported immediately. The customer may only modify content in CERTAIN if expressly permitted by CERTAIN. If the customer uploads documents, especially for technical documentation, to the CERTAIN application, they are obligated not to violate any copyrights or third-party rights. If CERTAIN is claimed against by third parties due to an alleged or actual infringement committed by the customer, the customer shall indemnify CERTAIN upon request from all third-party claims. This includes reasonable costs for legal defense.
V. Remuneration; Billing
The customer undertakes to pay CERTAIN the agreed remuneration for the services in accordance with Section I. The remuneration for the use of CERTAIN and any additional services provided by CERTAIN is expressly based on the price list valid at the time the contract is concluded and the CERTAIN licence model selected. All prices are subject to the applicable statutory value added tax. Unless otherwise agreed, payment is invoiced in advance. Unless otherwise agreed, invoices are issued electronically. This service is free of charge. Unless otherwise agreed, the agreed remuneration is due for payment without deductions within 14 days of receipt of an invoice. The customer must raise any objections to the invoice with CERTAIN within 14 days of receipt. After expiry of the aforementioned period, the invoice is deemed to have been approved by the customer. CERTAIN is authorised to increase the remuneration for the services provided at its reasonable discretion (in accordance with Section 315 BGB) for the first time 6 months after conclusion of the contract. Further increases in accordance with § 315 BGB are possible if the last price increase was at least 6 months ago. The fees are due before the start of the relevant billing period, either monthly, quarterly or annually depending on the model. Access to the booked licence is only activated after receipt of the first payment. Customer payments are processed by a payment service provider. If the customer defaults on payment, CERTAIN is entitled, irrespective of other rights, to refuse to provide further services and to block the services. If the customer falls into arrears, he is obliged to pay statutory default interest at a rate of 9 percentage points above the base rate. CERTAIN may charge a reminder fee of €2.50 for each reminder sent after default has occurred, unless lower or higher damages are proven. The customer's claims arising from this contract may only be offset against recognised or legally established claims against CERTAIN.
VI. Duration, Termination
The contract between the contracting parties is concluded for an indefinite period. The notice period for CERTAIN depends on the licence model booked. Unless otherwise agreed, the contract can be cancelled with four weeks' notice to the end of the term. If the customer fails to pay a significant part of the fees for two consecutive months, CERTAIN can terminate the contract immediately for cause. Cause for immediate termination by CERTAIN also exists if insolvency proceedings are applied for, opened, or rejected due to lack of assets in relation to the customer. Termination rights according to § 314 BGB remain unaffected. CERTAIN will maintain the customer account for security purposes after the end of the contract unless there is an objection to this.
VII. Usage Rights
CERTAIN grants the customer a simple, non-exclusive, and spatially unrestricted right to use the software in the version agreed upon at the time of contract conclusion. The usage right is limited to the duration of the contract and also includes the use of new available versions. The customer is not authorized to exhibit, publicly reproduce, especially publicly make available, edit, translate, decompile, or otherwise modify the software. The customer's rights according to §§ 69d (3), 69e - Act on Copyright and Related Rights - remain unaffected. CERTAIN is entitled to use the software, including new versions, as well as any general know-how, experience, methods, and procedures developed in connection with the contract, elsewhere (provision to third parties, as open-source software, etc.).
VIII. Material Defects
The parties understand a material defect in software to mean the following: A material defect is a condition in which the software, in the available version, does not perform a function named in the performance description or the provided documentation for reasons attributable to CERTAIN, and this significantly affects the suitability of the software for the agreed-upon use. No defect exists, in particular, if (i) the problem is caused by improper installation or handling of the software by the customer or third parties, and/or is used under system requirements not specified in the performance description or documentation, or (ii) the problem is caused by other reasons not within the sphere of CERTAIN. If a defect exists, CERTAIN is obligated to remedy the defect. The remedy may be carried out by CERTAIN's choice, either by providing an updated version or a reasonable workaround that circumvents the defect. CERTAIN is entitled to attempt the remedy at least twice. Guarantees are only effective if expressly designated as "guarantee" in writing. Claims for damages due to defects are subject to the liability limitations agreed upon in Section VIII. If it turns out during the rectification of a defect that there is no defect or the defect is not attributable to CERTAIN, CERTAIN is entitled to reimbursement of the costs and expenses incurred for processing.
IX. Liability and Warranty
In cases of intentional or grossly negligent behaviour, injury to life, limb or health, fraudulent concealment of a material defect or defect of title or written assumption of a guarantee for the quality or durability of the services provided under the contract, CERTAIN is liable without limitation in terms of amount in accordance with the Product Liability Act. If essential contractual obligations are negligently violated, CERTAIN's liability is limited to the foreseeable damage typically associated with the contract. Essential contractual obligations are those whose fulfillment enables proper contract performance and on whose compliance the customer relies and can rely. Liability for simple negligence outside the violation of essential contractual obligations and for lost profits is excluded unless one of the cases mentioned in paragraph 1 of this clause applies. Liability under the Product Liability Act remains unaffected. The above liability exclusions also apply to actions by legal representatives, agents, and subcontractors of CERTAIN. Claims for damages expire within one year. Section 199 (1) BGB applies with regard to the commencement of the limitation period. In the event of force majeure preventing CERTAIN from (timely) providing a service, CERTAIN is exempt from the obligation to perform for the affected period and additionally for a reasonable period to resume the services. The affected deadlines shift accordingly. Events of force majeure include, in particular, events beyond the control of CERTAIN, such as fire, explosions, floods, war, blockades, embargoes, labor disputes, pandemics, and governmental measures related to the mentioned events. Claims for damages are excluded in this case. The functionality and availability of software, hardware, and other components provided by the customer, as well as services from third parties, are not the responsibility of CERTAIN. Similarly, CERTAIN is not responsible for the interoperability of CERTAIN software with the customer's IT systems unless the system requirements set by CERTAIN are met. Interoperability of CERTAIN software with hardware and software obtained or otherwise used by third parties is expected only if expressly agreed otherwise.
X Subcontractors
CERTAIN may have services performed by subcontractors or obtain services from subcontractors. The fault of a subcontractor is equivalent to the fault of CERTAIN (§ 278 sentence 1 BGB). If the provision of services involves data processing in accordance with Art. 28 GDPR, we will comply with the provisions in the Data Processing Agreement.
XI. Confidentiality; Data Protection
The contracting parties undertake to treat all received or learned during the contract execution information and documents that are legally protected, contain business or trade secrets, or are designated as confidential, as confidential even beyond the end of the contract, unless they become publicly known without a breach of confidentiality obligations. The parties will store and secure these documents in a way that prevents access by third parties. The parties will comply with applicable data protection regulations and undertake to obligate their employees, in connection with the contract and its execution, to maintain the confidentiality of data in accordance with § 5 BDSG.
XII. Final Provisions
All disputes between the parties are subject exclusively to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all disputes related to these General Terms and Conditions is determined by the location of CERTAIN. Changes or additions to these GTC or the underlying contract require written form (§ 126b BGB). The customer's general terms and conditions become part of the contract only if CERTAIN has expressly agreed to them in writing. The customer is not entitled to transfer this agreement in whole or in part to third parties or to authorize third parties to exercise the associated rights and obligations. CERTAIN has the right to transfer this agreement, including all rights and obligations, to a company within the CERTAIN group. The transfer becomes effective 28 days after notifying the customer. In the event of a transfer of the contract to another company, the customer has a special termination right, which must be exercised within two weeks after notification. CERTAIN may change or supplement these General Terms and Conditions at any time. The changes or additions will be announced to the customer by email at least six weeks before they take effect. If the customer does not agree with the changes, they can object in writing within one week of the planned changes or additions being sent. If the customer does not object, the changes or additions to the General Terms and Conditions are considered accepted. CERTAIN will specifically draw the customer's attention to the significance of their behavior when announcing the change or addition to the GTC. Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.