The following text is a machine-generated translation of our German General Terms and Conditions ("Allgemeine Geschäftsbedingungen" - AGB) and is provided solely for the convenience of our international visitors. This translation has no legal effect. Only the original German version is legally binding and shall prevail in the event of any contradictions or discrepancies between the English translation and the German original.
These General Terms and Conditions (hereinafter “GTC”) govern the purchase by the CUSTOMER of computer programs and other works and services (hereinafter “Contractual Services”) from CRANIMAX GmbH Software Development and Distribution Company for Industry Solutions (hereinafter “CRANIMAX”).
The contract between CRANIMAX and the CUSTOMER, subject to the terms and conditions set out herein, is concluded when CRANIMAX makes a written offer for the contractual services and the CUSTOMER accepts the offer in writing, or when the CUSTOMER places a written order for the contractual services and CRANIMAX accepts the order in writing. The contract and these terms and conditions may only be amended or supplemented by written statements from both parties.
Written quotations and orders take precedence over these Terms and Conditions. CRANIMAX does not accept any terms and conditions of business or purchase from the CUSTOMER, regardless of whether they form part of an order placed by the CUSTOMER or are otherwise communicated to CRANIMAX.
Software licence
The following provisions apply where CRANIMAX provides the CUSTOMER with contractual software.
CRANIMAX provides the CUSTOMER with the Contract Software in object code form and the accompanying documentation by making a download and a licence file or licence key available to them. The CUSTOMER does not receive the Contract Software in source code form.
Upon conclusion of the contract, the parties shall agree whether the CUSTOMER is to be granted a perpetual right to use the contractual software in return for a one-off payment (purchase licence) or a time-limited right to use the software in return for recurring payments (rental licence).
The functionality of the contract management software is set out exclusively in the accompanying documentation. This functionality is subject to the system requirements described in the documentation. Public statements and advertising claims do not constitute any agreement as to quality or warranty. Any agreements as to quality or warranties must be set out in a written agreement between the parties.
The following provisions apply to planning software for cranes:
Planning software generates idealised, theoretically derived results based on stored standard values and empirical data. The actual measured values may differ from these.
The actual measured values depend on several factors, in particular external influences (e.g. cable weights, fittings, frictional forces), real-world environmental conditions (e.g. weather, uneven surfaces, obstacles), dynamic influences (e.g. lifting/lowering of the load, changes in position, shifts in weight) and elastic deformations of components.
The CUSTOMER must always compare the values calculated using planning software with the actual conditions on site and the crane manufacturer’s specifications, independently verify and recalculate the results, and ensure that the crane and the parts used are in good working order.
The CUSTOMER bears the risk of suitability and use of the contractual services. In case of doubt, the CUSTOMER must seek expert advice before concluding the contract.
Care services
The following provisions apply where CRANIMAX provides maintenance and support for the contractual software.
CRANIMAX shall make the latest available version of the licensed software available to the CUSTOMER for download and shall rectify any known faults through patches, updates, upgrades or workarounds.
CRANIMAX offers a support service that can be contacted by email, via the contact form on the website, or by telephone. The support team is available Monday to Friday from 8.00 am to 5.00 pm, excluding public holidays, in Zweibrücken, Germany.
The fee for maintenance services amounts to twenty per cent (20%) of the fee for the provision of the contractual software, unless a different fee has been agreed. The fee is payable annually in advance. If the functions of the contractual software are expanded and the fee for its provision is increased, the fee for maintenance services shall be increased accordingly. In the event of a reduction in functions, CRANIMAX may reduce the remuneration for maintenance services on a pro rata basis.
The term of the care services is one (1) year and is automatically renewed for a further one (1) year unless either party gives written notice of termination at the end of the current term, subject to a notice period of sixty (60) calendar days. The term of the contract begins upon receipt by CRANIMAX of the payment due.
Works services
The following provisions apply when CRANIMAX performs work for the CUSTOMER.
Upon conclusion of the contract, the parties shall agree on the specific services to be provided by CRANIMAX. These services may include, in particular, the creation and customisation of computer programs in accordance with the CLIENT’s requirements. The specifications and (additional) functions, as well as the necessary programming steps and milestones, shall be set out in detail. Furthermore, an estimate is provided of the expected time required and the corresponding remuneration. It is agreed whether the CLIENT may use the computer program for a limited or unlimited period.
The CLIENT shall provide CRANIMAX with the information, specifications and data necessary for the performance of the work and shall be responsible for their accuracy and completeness.
If CRANIMAX determines that the services cannot be provided as agreed or that the estimated time required is exceeded, the parties may mutually agree to adjust the scope and content of the services.
The CLIENT shall accept the completed work by issuing a declaration of acceptance within a reasonable period following notification of the completion of the (partial) work. Acceptance shall be deemed to have taken place if the CLIENT makes productive use of the (partial) work in accordance with the contract or does not report any material defects within a reasonable acceptance period set by CRANIMAX.
Services
The following provisions apply when CRANIMAX provides services to the CUSTOMER.
CRANIMAX provides the services on its own responsibility, at its own discretion and independently of the CLIENT. CRANIMAX performs its services with due care and in accordance with the state of the art. It is under no obligation to achieve a specific result or success in the provision of the services.
CRANIMAX provides its services from Monday to Friday between 08:00 and 17:00, excluding public holidays, in Zweibrücken, Germany. Services are recorded and invoiced in 0.5-hour increments. For services between 06:00 and 08:00 or 17:00 and 22:00, a surcharge of twenty-five per cent (25%) will be applied. For services between 22:00 and 06:00, a surcharge of fifty per cent (50%) will be applied. For services on Saturdays, a surcharge of seventy-five per cent (75%) will be charged. For services on Sundays or on a public holiday in Zweibrücken, a surcharge of one hundred per cent (100%) will be charged. CRANIMAX’s travel expenses and out-of-pocket costs will be passed on.
If the parties agree on a specific date for the services, the CLIENT may cancel free of charge up to fourteen (14) calendar days before the date. Cancellations made up to seven (7) calendar days before the date will be charged at sixty per cent (60%) of the fee, and later cancellations at ninety per cent (90%). This applies accordingly if an agreed date is not met for reasons for which the CLIENT is responsible. Other expenses and costs incurred by CRANIMAX shall be reimbursed by the CLIENT on a cost basis.
Performance of the contractual obligations
Dates and deadlines for the performance of contractual obligations are, as a rule, non-binding and shall only be binding if the parties expressly agree to this in writing.
CRANIMAX may engage subcontractors and affiliated companies to perform the contractual services.
The parties have the statutory rights to withdraw from or terminate the contract, in particular to terminate it without notice for good cause. Withdrawal and termination must be given in writing.
Specific standards, norms, guidelines, certificates, testing and approval procedures need only be observed in relation to the contractual services if the parties expressly agree to this in writing.
The parties may agree in writing to make changes to the services after the contract has been concluded.
Right to use the contractual services
CRANIMAX and its licensors hold the exclusive rights to use the contractual services and grant the CUSTOMER a non-exclusive right of use in return for payment.
The CUSTOMER may install and use the Contract Software on the agreed number of computers, in particular by storing and loading it permanently or temporarily, as well as displaying and running it. Upon conclusion of the contract, the parties shall agree on one of the following licence models:
The CUSTOMER may install the Contract Software on a specified number of computers within their organisation, and a specified number of employees may use it (device and user licence). This licensing model applies unless the parties expressly agree on a different licensing model.
The CUSTOMER may install the contractual software on a specified number of computers within their organisation, and any number of employees may use it (per-device licence).
The CUSTOMER may install the contractual software on any number of computers within their organisation, and a specified number of employees may use it (user licence).
The CUSTOMER may install the licensed software on any number of computers within their organisation, and any number of employees may use it (corporate licence).
In order to use the Contract Software, employees may be required to use a personal user account. A user account must not be used by more than one employee. The CUSTOMER may delete, modify and create user accounts.
The CUSTOMER shall ensure that login details are kept confidential, are not disclosed to third parties, and that technical usage restrictions are not circumvented. Any changes to the agreed licence model require a written agreement.
The right of use is tied to the CUSTOMER and may not be transferred to third parties or sub-licensed without the prior written consent of CRANIMAX. The CUSTOMER may not distribute, make publicly available, rent out or otherwise allow third parties to use the Contract Software or other Contract Services. Affiliated companies of the CUSTOMER may only use the Contract Software and other Contract Services if the parties expressly agree to this in writing.
CRANIMAX may at any time request information from the CUSTOMER regarding the nature and extent of the use of the Contract Software. The CUSTOMER shall provide this information within fourteen (14) calendar days and shall enclose any necessary supporting documents.
The CUSTOMER is entitled to make a backup copy of the contractual software and other contractual services.
Apart from the right of use referred to above, the CUSTOMER is only entitled to reproduce, modify, decompile, distribute and reproduce the Contract Software and other contractual services where this is expressly permitted by law. The CUSTOMER is not permitted to use the software or services in any other way.
Where CRANIMAX provides the CUSTOMER with patches, updates or upgrades to the Contract Software, the CUSTOMER shall have the same rights in respect of these as it does in respect of the Contract Software. The CUSTOMER is only entitled to use a patch, update or upgrade if they hold a licence to use the Contract Software. Patches, updates and upgrades do not grant the CUSTOMER any additional or extended licence to use the Contract Software.
The granting of the right of use is subject to the condition precedent that the CUSTOMER pays the agreed fee in full to CRANIMAX.
CRANIMAX is entitled to revoke the right of use under the following conditions:
CRANIMAX may revoke the right of use at any time if the CUSTOMER (1) is in arrears with payment, (2) seriously and definitively refuses to pay, or (3) there are valid grounds for doing so.
Good cause shall be deemed to exist in particular if the CUSTOMER breaches the provisions of these General Terms and Conditions relating to the right of use or confidentiality and fails to cease such conduct immediately despite a written warning under threat of termination. A warning is not required if it is unnecessary in the specific case, in particular if a remedy is clearly out of the question or unreasonable for CRANIMAX.
In the event of withdrawal, the CUSTOMER must immediately cease using the Contract Software and delete all installed or stored versions and (backup) copies of the Contract Software. The CUSTOMER must confirm the deletion to CRANIMAX in writing upon request.
Where CRANIMAX provides the CUSTOMER with third-party software as part of the contractual services, the CUSTOMER’s right to use such software shall be governed exclusively by the licence terms of that third party. Upon request, CRANIMAX shall inform the CUSTOMER which third-party software is included in the contractual services and shall provide the CUSTOMER with access to the licence terms. This shall apply mutatis mutandis to open-source software.
If the CUSTOMER reproduces, distributes or makes the contractual software publicly available without the necessary licence, they must obtain a licence from CRANIMAX. CRANIMAX reserves the right to assert further claims.
Involvement of the CUSTOMER
The CUSTOMER is obliged to assist CRANIMAX, to a reasonable extent, on its own responsibility and at its own expense, in the performance of the contractual services. It shall designate competent staff as points of contact for the performance of the contractual services. The parties may agree on specific obligations to cooperate by contract.
The CUSTOMER must procure and operate, at its own expense and under its own responsibility, the hardware, software, networks, system environments, test systems and other IT systems required for the performance of the contractual services, in accordance with the system specifications provided by CRANIMAX.
The CLIENT shall provide CRANIMAX with data, information and means of communication, as well as access to IT systems, premises and infrastructure, to the extent necessary for the performance of the contractual services.
The CLIENT shall back up its data using state-of-the-art technology and ensure that its data can be reproduced from a database maintained in a machine-readable format at a reasonable cost. The CLIENT shall take appropriate measures to maintain its business operations in the event that defects or malfunctions in the contractual services impair the use of the IT systems.
The CUSTOMER shall test the contractual services prior to their deployment in a live environment, in particular to ensure they are suitable for the CUSTOMER’s intended use. Whilst using the contractual services, the CUSTOMER must install and use any patches, updates and upgrades made available to them by CRANIMAX.
The CUSTOMER shall protect the contractual services from access by unauthorised third parties using state-of-the-art security measures. The CUSTOMER must protect the licence files and keys provided by CRANIMAX from unauthorised access and must inform CRANIMAX immediately if unauthorised third parties gain access.
The CLIENT is responsible for ensuring that, when using the contractual services, they comply with the regulatory, professional and other legal requirements applicable to them.
The CUSTOMER’s cooperation is a prerequisite for the provision of the contractual services. If the CUSTOMER fails to perform a required act of cooperation in a timely, complete and faultless manner, any resulting damage, costs and delays shall be borne by the CUSTOMER. CRANIMAX may, at its own discretion, offer to provide assistance or perform the act itself, or set a reasonable deadline for the performance of the act of cooperation and terminate the contract upon expiry of that deadline.
Remuneration
The remuneration for the services provided under the contract shall be agreed between the parties. Remuneration may be payable as a one-off payment or in instalments (for example, on a daily, monthly or annual basis), on a time-and-materials basis or at a fixed price. Unless the parties agree otherwise, computer programmes shall be invoiced upon delivery, maintenance services in advance, and work and services at the end of each calendar month.
All prices quoted by CRANIMAX are net amounts, excluding applicable VAT. Any other taxes, customs duties and other charges that may be payable in the recipient’s country are to be borne by the CUSTOMER.
Where billing is based on time spent, CRANIMAX shall provide the CUSTOMER with a written time sheet detailing the contractual services rendered.
Unless the parties have agreed on a fee for the services provided under the contract, CRANIMAX’s current price and service list shall apply. Any changes to the agreed fee must always be made in writing.
Invoices are payable within fourteen (14) calendar days of receipt. In the event of late payment, CRANIMAX is entitled to statutory interest on arrears, reminder fees and compensation for losses incurred as a result of the delay, and may make the continued provision of contractual services conditional upon full payment or require payment in advance.
In the case of continuing contracts, CRANIMAX may increase the remuneration by three per cent (3%) of the net amount upon the first and each subsequent renewal of the contract term. In the case of renewals and extensions of existing contracts, the provisions contained therein shall take precedence over the provision in this clause, unless the parties agree otherwise in the quotation and the order.
Defects in performance
CRANIMAX shall provide the CUSTOMER with the contractual software and shall deliver the work free from defects.
No claim for defects shall arise in the event of an insignificant deviation from the agreed or implied quality and an insignificant impairment of usability.
CRANIMAX shall not be liable for defects caused by the fact that the contractual software (1) is not installed and used in accordance with the contract and in the proper manner, (2) is used under conditions, for purposes or in IT systems for which it is not suitable or intended, (3) is not used in accordance with the specified system specifications, or (4) is modified without CRANIMAX’s consent. Furthermore, CRANIMAX shall not be liable if the CUSTOMER fails to install patches, updates and upgrades to the Contract Software intended to rectify defects.
The CUSTOMER must report any faults or defects to CRANIMAX without delay, providing all relevant information of which they are aware. To do so, they must use the communication services provided by CRANIMAX. The report must be made by a competent member of the CUSTOMER’s staff who is able to describe the faults and defects and assist CRANIMAX in resolving them.
The CUSTOMER must assist CRANIMAX in investigating, reproducing and rectifying any fault or defect. To this end, the CUSTOMER must grant CRANIMAX remote or on-site access to the IT system and provide the necessary information, data and passwords. If, during the investigation, CRANIMAX determines that the fault or defect may be caused by other components in the CUSTOMER’s IT systems, the CUSTOMER shall, at their own expense, carry out an analysis of the IT systems themselves or through a third party.
To remedy significant faults or defects, CRANIMAX may choose between rectification, replacement or alternative remedies such as the provision of a patch, update or upgrade, a workaround or appropriate instructions to the CUSTOMER. If, following the expiry of a deadline set for the rectification of significant faults or defects without result, the CUSTOMER has set CRANIMAX a further reasonable grace period and this too has expired without result, or if a reasonable number of attempts at rectification, replacement delivery or alternative performance have been unsuccessful, the CUSTOMER may reduce the remuneration and claim compensation for damages or reimbursement of expenses. The CUSTOMER is not entitled to remedy faults and defects themselves or through third parties at CRANIMAX’s expense.
The CUSTOMER’s claims for defects shall become time-barred within one (1) year and are subject to the limitations of liability set out in these General Terms and Conditions. If the CUSTOMER is a consumer, claims for defects shall become time-barred within two (2) years. The provision of a patch, update or upgrade, as well as other services relating to rectification, replacement delivery and substitute performance, shall not trigger a new warranty period or limitation period.
If the CUSTOMER reports faults or defects that do not in fact exist or for which CRANIMAX is not responsible, the CUSTOMER shall bear the costs and expenses incurred by CRANIMAX in investigating and, where necessary, rectifying such faults and defects.
Exemption
The services covered by this contract are free from any third-party intellectual property rights within the European Union and the European Economic Area, or CRANIMAX holds the necessary licence to use them.
If a third party asserts claims against the CUSTOMER on the grounds that the contractual services infringe intellectual property rights, and if this results in the use of such services being restricted or prohibited, the following provisions shall apply:
CRANIMAX may, at its own expense, either modify or replace the contractual services in such a way that they do not infringe any intellectual property rights but essentially correspond to the agreed functional and performance characteristics, or indemnify the CUSTOMER against any claims made by the intellectual property rights holder.
If it is impossible for CRANIMAX to remedy the situation, or if this can only be done on unreasonable terms, it shall be entitled to suspend performance of the contract in return for a refund of the fees paid. In such cases, CRANIMAX shall grant the CUSTOMER a reasonable grace period, unless this is only possible on unreasonable legal or other terms.
The parties shall immediately notify each other of any claims asserted by third parties. To avoid any potential damage, the CLIENT shall cease using the contractual services upon request by CRANIMAX. The CUSTOMER shall not acknowledge the alleged infringement of intellectual property rights and shall either leave any dispute, including any out-of-court settlements, to CRANIMAX or conduct such matters only in agreement with CRANIMAX. CRANIMAX shall reimburse the CUSTOMER for necessary defence costs and other damages, insofar as the CUSTOMER retains the right to take appropriate defensive measures and conduct settlement negotiations for legal reasons.
Where the CUSTOMER is itself responsible for the infringement of intellectual property rights, claims against CRANIMAX are excluded.
The CUSTOMER shall, upon first request, indemnify CRANIMAX against all penalties, costs and claims by third parties arising from the CUSTOMER, its affiliated companies, employees, agents and vicarious agents using the contractual services in breach of the contract, infringing the rights of third parties or contravening applicable law.
Liability
CRANIMAX shall be liable without limitation in the event of (1) injury to life, limb or health, (2) warranties, (3) wilful misconduct and gross negligence, and (4) under the Product Liability Act.
In the event of negligence, CRANIMAX’s liability is limited to typically foreseeable damages, excluding loss of profit. In cases of slight negligence, CRANIMAX shall only be liable if it has breached a material contractual obligation on the fulfilment of which the CUSTOMER may rely. This liability is limited in total to the contractual remuneration for all damages. CRANIMAX shall not be liable for the slightly negligent breach of other obligations.
Where CRANIMAX’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
Data protection and confidentiality
The parties shall comply with the applicable data protection regulations. CRANIMAX’s privacy policy is available at: www.cranimax.com/privacy-policy/. Where the provision and use of the contractual services in accordance with data protection regulations and the terms of the contract require specific declarations, agreements or measures, the parties shall take such action.
The parties undertake to (1) treat the other party’s confidential information as strictly confidential, (2) not disclose it to or make it available to third parties, (3) not publish it, (4) use it solely for the purpose of fulfilling their contractual obligations, and (5) not exploit it in any other way. Furthermore, the parties undertake to take appropriate measures to protect the other party’s confidential information, but at least those measures by which they protect their own confidential information.
Confidential information comprises – irrespective of whether it is marked as confidential – all information made available to the other party orally, in writing, online or on data storage media, or otherwise brought to its attention, in particular all financial, technical, economic, legal and tax information, as well as information relating to business activities, products, employees and management. Where confidential information does not meet the requirements of a trade secret within the meaning of the Trade Secrets Act, such information is nevertheless protected by these General Terms and Conditions.
The obligation of confidentiality shall not apply to information in respect of which the other party demonstrates that it (1) was known to it prior to the date on which it became aware of it, (2) was made available to it by an authorised third party before or after the date of disclosure for the purpose of free use and without any obligation of confidentiality, (3) was known to the public or generally available before the date of disclosure, or (4) became known to the public or generally available on or after the date of disclosure without any breach of this confidentiality agreement.
Force majeure
Neither party shall be obliged to fulfil its contractual obligations in the event of, and for the duration of, force majeure. In particular, the following circumstances shall be regarded as force majeure: (1) Accidents, misfortunes, pandemics and disasters for which the party is not responsible, as well as war, blockades and embargoes; (2) industrial action lasting more than four weeks; and (3) general disruptions to telecommunications and the internet.
Each party must notify the other in writing without delay of the occurrence of any event of force majeure.
General Provisions
If any provision of these Terms and Conditions is invalid, the relevant statutory provisions shall apply in its place. If any provision of a contract concluded on the basis of these Terms and Conditions is invalid, the provisions of these Terms and Conditions shall apply in its place.
The CUSTOMER is only entitled to withhold payment or to set off claims against counterclaims if their claims have been legally established or acknowledged by CRANIMAX. The CUSTOMER may only assign claims arising from these General Terms and Conditions and the contracts concluded on the basis thereof with the prior written consent of CRANIMAX.
These Terms and Conditions and any contracts concluded on the basis thereof are governed by the laws of the Federal Republic of Germany, excluding conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all legal disputes arising in connection with these General Terms and Conditions and the contracts concluded on the basis thereof shall be Zweibrücken, Germany, provided that the CUSTOMER is a trader, a legal entity governed by public law or a special fund under public law.
