General Terms and Conditions of picturemaxx AG

§ 1 General provisions

1.1 Scope
1.1.1 These General Terms and Conditions (hereinafter: GTC)shall exclusively govern any contractual and pre-contractual obligations in the business dealings and transactions of picturemaxx mediasolutions AG (hereinafter: picturemaxx) with its Customers, unless the parties specifically agree otherwise in writing. Any different, contradictory or supplementary terms and conditions of the Customer will only become part of the contract upon their express written acceptance by picturemaxx. The present GTC shall specifically apply to software licence agreements, for agreements for software services, in particular Application Service Providing (hereinafter: ASP), as well as for contracts concerning updates and support.
1.1.2 If the Customer uses GTC of its own, the agreement shall be concluded also in the absence of express agreement of the inclusion of the GTC. The GTC shall be deemed as having been agreed upon to the extent they coincide. Any contradictory individual arrangements shall be replaced by the provisions of dispositive law. This shall likewise apply, if the Customer’s GTC include provisions not contained herein. If the present GTC include provisions not included in the Customer’s GTC the present GTC shall prevail.
1.1.3 Only entrepreneurs as defined in section 14 German Civil Code are Customers for the purposes of these GTC.
1.1.4 Any reference applicable statutory provisions shall solely serve for clarification. Unless directly contracted out by these GTC all statutory provisions shall apply including without such clarification.


1.2 Confidentiality
1.2.1 Subject to the provisions set out hereinafter the parties agree to treat as confidential any and all information or documents which are legally protected, or which include business or operational secrets or have been marked as confidential, which they receive or learn from the other party to the contract prior to or during the performance of the Agreement; this obligation shall survive the term of the Agreement unless the information came into the public domain without a violation of the obligation of confidentiality. Both parties shall keep and safeguard such information and documents to prevent any access thereto by third parties.
1.2.2 The Customer shall inform only such employees or third parties about the subject matter of the Agreement which have a need to know to comply with their assigned tasks. The Customer shall instruct such parties with a need to know about the need to treat such matters confidential.
1.2.3 picturemaxx will store the Customer data required to conduct the respective business transactions in strict compliance with applicable data protection law. The Customer hereby authorises picturemaxx as operator of the closed databank system which is inseparably connected to the Software hereto, to store the usage-relevant data of the Customer, in particular name, address, and internet-protocol address in a central file and to make such file accessible to all other licensees.
1.2.4 Further picturemaxx shall be entitled at any time to determine, store, and keep on a data medium the Customer’s data relevant for use (e.g. administered image volume, current software version) to maintain and support the data transfers intended by the Customer and for data protection purposes - specifically by using a master client or a debugging tool.
1.2.5 picturemaxx shall be entitled at any time to update the software covered by this Agreement with later versions and to install new safety tools to prevent misuse.
1.2.6 The Customer must keep the login passwords provided by picturemaxx in a way that is inaccessible for third parties and may not disclose them to third parties.


1.3 Claims for damages
1.3.1 picturemaxx shall not be liable for slight negligence in the violation of its obligations unless material obligations under the contract, injury to life, limb, and health, warranties or claims under product liability law are concerned. If picturemaxx is liable for slight negligence such liability shall be limited to the foreseeable average damage which typically results.
1.3.2 As far as picturemaxx liability has been excluded or limited this shall also apply for the personal liablility of picturemaxx employees, representatives, or vicarious agents.
1.3.3 picturemaxx is not prevented from raising the defence of contributory negligence. The Customer shall in particular be obligated to make backups of the respective data and to ensure state of the art virus protection.
1.3.4 Further picturemaxx shall not be liable for the proper functioning of data networks or data transmission lines to its data processing centre, nor for power outages or breakdowns of webs or servers over which picturemaxx has no control, always provided however that picturemaxx has not by intent or gross negligence caused the malfunction, the outage, or failure.


1.4 Statute of limitation
1.4.1 Claims by the Customer, including claims in case of defects, shall become statute-barred within one year, unless a statutory statute of limitation provision stipulates a period shorter than a year, in which case this shorter statute of limitation shall apply.
1.4.2 Notwithstanding clause 1.4.1 above, the statutory limitation period shall apply for damage claims relating to injury to life, limb, and health, for other damage claims due to intentional or grossly negligent breach of duty, for claims under the German Product Liability Law, for the violation of other material obligations under the contract, and claims based on defects, if picturemaxx fraudulently concealed the defect or made representations as to the quality.
1.5 Governing law, place of performance, and jurisdiction
1.5.1 These GTC and all legal relationships between picturemaxx and the Customer are governed by the law of the Federal Republic of Germany; the UN Convention on Contracts for the International Sale of Goods shall be excluded.
1.5.2 Munich/Germany shall be the place of performance and the exclusive venue for all claims arising from the legal relationships between picturemaxx and the Customer.


1.6 Written form
Amendments and modifications of the Agreement will only become effective when made in writing. The written form shall also be observed when such amendments and modifications are transmitted as text, by fax or email. Any changes in the scope of products and services made after the Agreement has been signed shall only become part of the Agreement after having been agreed and included in the certificate of services or support. Support or service certificates shall be part of the Agreement.


§ 2 Software Licensing

The following provisions specifically apply to software licence agreements:


2.1 Entering the contract
2.1.1 The Customer’s order from picturemaxx represents a binding offer to enter into a corresponding software licence agreement.
2.1.2. picturemaxx will promptly confirm the receipt of the order, if the Customer orders the software electronically. The confirmation of the receipt of the order does not constitute a binding acceptance of the order, it may, however be combined with such acceptance. For electronically ordered goods picturemaxx will save the text of the contract and email it together with these GTC to the Customer on request.
2.1.3 picturemaxx offers are without engagement and non-binding unless made in writing and designated as binding. Legal obligations will result only from a contract signed by both parties or from picturemaxx written order acknowledgment or when picturemaxx starts to perform as agreed in the contract.


2.2 Purpose of the Agreement, scope of the performance, transfer of risk
2.2.1 The purpose of the software licence agreement is the delivery of standard software and the granting of a non-exclusive licence as per clause 2.3 hereof. The Customer will install and configure the software on its own, unless otherwise agreed by the parties. The Customer shall in particular be responsible for the integration of the Software into its software environment.
2.2.2 Before entering this Agreement the Customer has verified that the specifications of the software conform to the Customer’s wishes and needs. The Customer is aware of the essential functional characteristics and conditions of the software. Only upon mutual agreement shall picturemaxx be obligated to adjust the licenced software to the requirements of the Customer.
2.2.3 The contract signed by both parties or picturemaxx written order acknowledgment determine the scope, nature, and quality of the supplies and services, otherwise this is done by the offer made by picturemaxx. Further details or requirements shall only become part of the contract, if agreed by the parties in writing or confirmed by picturemaxx in writing. Subsequent changes of the scope of services must be agreed in writing or confirmed by picturemaxx in writing.
2.2.4 Separate contracts must be made for other types of supplies and services (e. g. software updates, configuration and installation of the software, use of the ASP). Unless agreed otherwise, the supply of updates and upgrades is not covered by this contract. Picturemaxx reserves the right to make updates and upgrades available on websites or in other ways, the use of which is at the discretion of the Customer. picturemaxx agrees to enter into an update and support agreement and a contract for the configuration and installation of the software subject to the conditions valid at the time (available at www.picturemaxx.com) within a three months period after the signing of the contract granting the use of the software at the Customer’s request. Otherwise both parties are at liberty to make such contracts.
2.2.5 Product descriptions and presentations in demo software which picturemaxx made available to the Customer prior to its order or which have been included in this Agreement in a similar manner as these GTC constitute specifications of services. A guarantee requires the express written declaration by picturemaxx management.
2.2.6 Unless agreed otherwise, the software ordered by the Customer will be supplied in a machine readable form on a suitable data medium to the delivery address indicated by the Customer (sale by delivery to a place other than the place of performance) or by data transmission. For the latter picturemaxx may inform the Customer by email about an option to download. The scope of delivery includes the software, installation instructions and a user manual in digital form. There is no obligation to deliver the source code.
2.2.7 The risk of the accidental loss or deterioration of the software passes to the haulage agent, the carrier or the person or organization otherwise commissioned to make the delivery at the time the software is surrendered to these, at the very latest it passes to the Customer at the time it is surrendered to it. If the Customer delays acceptance this shall be deemed as constituting surrender. If delivery is made by data transmission surrender is deemed to have been effected at the time the software has been received at the mailbox designated by the Customer.
2.2.8 Picturemaxx manages all Customers’ internet protocol- addresses in a central directory to permit them direct access to the various products offered.


2.3 Scope of the licence
2.3.1 The licenced software (including accompanying material) is subject to intellectual property rights. In the relationship between the parties to this Agreement any copyrights, patent rights, trademark rights and other ancillary copyrights to the software or other material which picturemaxx licences to the Customer or makes available to it in the course of entering or performance of the Agreement belong exclusively to picturemaxx. If these rights belong to third parties picturemaxx owns all relevant rights of use and exploitation.
2.3.2 picturemaxx grants the Customer a non-exclusive licence to the software made available subject to the following conditions.
2.3.3 The software made available may only be copied in a machine readable or printable form within the scope of the licence granted. This includes installation in the main memory and loading into the RAM for use. The Customer may make only one backup copy of the application with the user specific settings for data backup.
2.3.4 Within the scope of the licence granted it is permissible to make copies for data backup and otherwise of the documentation.
2.3.5 Simultaneous use of the software on multiple workstations in a network or in client-server applications shall only be permissible for the number of workstations or clients agreed in the specific licence agreement.
2.3.6 The content of the Customer’s licence is limited to the image volume defined in the specific licence agreement. If the Customer wishes to use the software beyond such limit it must purchase an extended licence from picturemaxx for an extra fee.
2.3.7 The Customer shall not be entitled to change the Software code in any way, this shall include modifications made for the purpose of debugging. picturemaxx enables debugging on the basis of an Update and Support Agreement which the parties hereto may agree separately.
2.3.8 It shall not be admissible to make the software or parts thereof publicly available. Passing on the licensed software to third parties is only permitted, if the Customer passes on the original data medium with the copy of the product as delivered, deletes the product copy in its system, binds the receiving third party in writing to comply with the present licence terms and informs picturemaxx of this transfer and the written agreement of such third party.
2.3.9 The software or parts thereof may only be leased with picturemaxx consent. The Customer is not permitted to make the software available to third parties within the scope of use similar to an ASP. The software is licensed exclusively for the purpose to provide to the Customer itself with access to the closed database system maintained by picturemaxx. The Customer is not entitled to grant sublicences.
2.3.10 The software may only be decompiled or its codes may be otherwise translated only, if picturemaxx failed to provide the Customer with the software information required for interoperability although it was requested to do so. The same applies to software generating databases. Any other translation for codes shall be inadmissible, including for debugging.
2.3.11 It is generally inadmissible to remove copy protection or similar protection devices. The Customer may remove such copy protection or similar protection devices only, if these impair or prevent the trouble-free operation of the software and picturemaxx failed to rectify the fault within a reasonable period despite being requested to do so. The Customer bears the burden of proof for the impairment or prevention of trouble-free operation by the copy protection.
2.3.12 Fault clearance may only be left to commercial third parties, who are potential competitors of picturemaxx, if picturemaxx refuses to undertake the desired program changes for reasonable consideration. The Customer must grant picturemaxx a reasonable time period to consider the acceptance of the request.


2.4 Performance times, delays
2.4.1 Delivery and performance times as named by picturemaxx shall only be legally binding, if such times have been agreed in the form of fixed dates expressly and in writing. picturemaxx shall be in default only after having received a specific reminder from the Customer, even if binding delivery times have been agreed. picturemaxx is entitled to partial deliveries, if the delivered parts can be reasonably used by the Customer separately.
2.4.2 The periods for delivery and performance shall be extended by such periods during which the Customer is in default under the contract and by any periods during which picturemaxx is prevented from delivering or performing for reasons beyond its control plus a reasonable time for restarting operations after the impediment ceased. Such reasons include, but are not limited to force majeure, labour disputes, no or insufficient cooperation by the Customer.
2.4.3 If the parties to the contract subsequently agree on additional services which affect the time limits agreed the latter shall be extended by a reasonable period.
2.4.4 Reminders and time limits fixed by the Customer shall only be effective if in writing. Extensions granted must be of reasonable duration. Time limits of less than 2 weeks shall only be deemed reasonable in cases of special urgency.


2.5 Remuneration
2.5.1 Unless the licence agreement provides otherwise the agreed remuneration becomes due and payable without deductions within 14 days after delivery of the software to and receipt of the invoice by the Customer. All prices are quoted net, the statutory value added tax applicable at the date of the invoice shall be added thereto.
2.5.2 In addition, cost of transport, allowable expenses, postage and telecommunication fees shall be reimbursed as incurred. Additional services requested by the Customer (e.g. consulting and support for software installation) will be invoiced as specified in picturemaxx’ current price list.
2.5.3 Reminders putting the Customer in default may be transmitted electronically as emails. Even in the absence of a reminder the Customer is defaulting, unless invoices are paid in full no later than 30 days of their receipt. The price shall accrue interest at a rate of 8% p.a. above the base rate of the European Central Bank while the default lasts, unless the Customer proves that no damage resulted from the default or that the damage is considerably less than the lump sum. picturemaxx shall be entitled to claim any higher damage from the default that picturemaxx can prove to have suffered.
2.5.4 The Customer may offset its obligations only against claims accepted by picturemaxx or claims that became res judicata. With the exception of the scope defined in § 354a German Commercial Code the Customer requires picturemaxx prior written consent for an assignment of claims under this Agreement. All rights of retention or to refuse performance by the Customer shall be excluded.


2.6 Customer’s obligations
2.6.1 The Customer must inspect all deliveries from picturemaxx according to the provisions of commercial law (§ 377 German Commercial Code) and promptly notify picturemaxx of all visible defects in writing, precisely describing the defect. Hidden defects must be notified immediately upon their discovery. The Customer shall test each module thoroughly for its usability in a specific situation before using it operationally. This also applies to programmes picturemaxx makes available to the Customer as part of debugging or under any update and support agreement.
2.6.2 The Customer must take reasonable precautions (e.g. by data backup, fault analysis, regular examination of the results) for improper operation or partially improper operation of the software.
2.6.3 The Customer must promptly inform picturemaxx of any change of the internet protocol addresses of the computers on which the licensed software is installed


2.7 Technical advancements
2.7.1 Generally the life cycle of the software products distributed by picturemaxx shall be 5 years.
2.7.2 After such period technical incompatibilities cannot be precluded, if the software acquired is not regularly updated to the latest stage of development  under an update and support agreement. Picturemaxx assumes no liability for such incompatibility.



2.8 Rights of the Customer in case of defects
2.8.1 Defects in the licensed Software or its accompanying material will be corrected by picturemaxx upon notification by the Customer. Malfunctions of the Software resulting from hardware defects, environmental conditions and faulty operation shall not be deemed defects. The Customer is hereby notified that computer programs can never be created completely free of any defects. The Customer will forfeit all rights relating to defects resulting from any use of the software in breach of this Agreement.
2.8.2 At picturemaxx discretion defects will be removed by free rectification or a replacement delivery. When a replacement is delivered the Customer must return the defective product. The Customer must accept an equivalent new software release or an equivalent previous software release that is free of this defect, if this can be reasonably expected. picturemaxx warrants for legal deficiencies by providing the Customer at picturemaxx’ discretion with a possibility to use the software or an equivalent software without legal deficiency.
2.8.3 The Customer shall assist picturemaxx in the analysis and removal of the defect by specifically describing any problems that may occur, by informing picturemaxx comprehensively, and by granting picturemaxx sufficient time and opportunity to remove the defect. At its discretion picturemaxx shall be entitled to perform the debugging either on site or at its own premises. picturemaxx may also provide its
services by way of remote maintenance. The Customer shall ensure at its own expense that the necessary technical requirements for such services are met and shall grant picturemaxx access to its computer facilities after previous notice.
2.8.4 picturemaxx may demand any extra expenses incurred due to changes made to the software, or its use outside of the specified environment or inappropriate operation. Further, picturemaxx can claim reimbursement for expenses if no defect is found. The burden of proof shall be with the Customer. § 254 of the German Civil Code shall apply.
2.8.5 If picturemaxx is unwilling or incapable to remedy the defect or deliver a replacement or if rectification or replacement delivery are delayed for reasons beyond picturemaxx’ control or if such measures are frustrated for other reasons, the Customer is entitled at its discretion to reasonably reduce the agreed compensation (reduction of the purchase price) or rescind the contract. The Customer shall not be entitled to rescind the contract in case of a minor defect. In case of a rescission of the contract the value of any benefits meanwhile derived from the product shall be deducted from the purchase price). The provisions in clause 1.3 shall apply regarding damage claims.


2.9 Reservation of transfer and cancellation of the Customer’s licence
2.9.1 The rights pursuant to clause 2.3 shall be transferred to the Customer only after all payments due from its current business relations with picturemaxx have been fully satisfied. Prior thereto the Customer has a right of use under the law of obligations which can be revoked pursuant to clause 2.9.2.
2.9.2 For good cause Picturemaxx may revoke the rights set out in clause 2.3. In particular a material violation of the duties set out in clause 2.3 shall constitute a good cause.
2.9.3 If the licence granted in clause 2.3 does not materialize or if it terminates, the Customer must promptly delete all copies of the software in its possession and must return all other accessory material. Picturemaxx may demand that the Customer returns the materials provided or a written declaration about their destruction as well as the deletion or destruction of all copies and a written certification that this has been done. Picturemaxx is entitled to insist on an affidavit from the Customer for this purpose.


2.10 Intellectual Property rights of third parties
The Customer shall promptly inform picturemaxx in writing about any assertion of third party claims based on intellectual property rights (e.g. copyrights or patent rights) regarding the software licensed by picturemaxx. The Customer authorizes picturemaxx to pursue the dispute with such third party independently. If picturemaxx opts for this authorization the Customer may not acknowledge the third party’s claims without picturemaxx consent. Picturemaxx shall defend the third party claims at its own expense and hold the Customer harmless for all cost associated with the defence against such claims, unless these arose from a breach of duty by the Customer (e.g. use of the software in breach of the contract).


2.11 Commencement of the limitation period
The limitation period of the Customer’s rights related to defects commences at the time of the delivery. If no delivery occurred the limitation period commences at the end of the year during which the claim arose. Otherwise clause 1.4 above shall apply.


2.12 Training
2.12.1 If required by the Customer at the expense of the Customer training courses shall be held at picturemaxx choice at the Customer’s location or another location to be agreed on with the Customer. If the training is held at the Customer’s premises it shall make available the necessary locations and technical equipment in consultation with picturemaxx. For training courses to be held at other premises, the Customer shall rent the same and make the required hardware and software available there.
2.12.2 picturemaxx may cancel a training event for important reasons. picturemaxx will inform the Customer of any cancellations in due time and offer alternative dates.


§ 3 Application Service Providing

The following provisions apply specifically to ASP agreements:


3.1 Subject matter of the contract
3.1.1 Application Service Providing is an outsourcing model for the use of software. By signing an ASP contract the Customer is enabled to use the software applications as agreed in individual contracts remotely via the telecommunication networks. Picturemaxx makes the software available on the basis of a client server solution via an IP network.
3.1.2 picturemaxx has available one copy of the latest version of the software selected by the Customer in its IT center for the duration of the licence agreement to be accessed via the internet.
3.1.3 The particular software will remain within picturemaxx system. The Customer uses it via a client software to be installed in the Customer’s system. The licence of the client software is subject to the provisions on software licence agreements (section 2 above).
3.1.4 picturemaxx is not obligated to warrant the Customer’s access to the internet or the operation of data lines or data networks as part of the internet.
3.1.5 Any modifications of the subject matter of the contract must be set out in the service certificate to be signed by both parties.
3.1.6 Additional programs, such as further databases, software options etc. which the Customer opts for at a later time must be set out in an addendum which will likewise be subject to these GTC mutatis mutandis.


3.2 Scope of the licence
3.2.1 The Customer is entitled to use the software and the related documentation made available to it on picturemaxx host computer for its own purposes and for the processing of data.
3.2.2 The Customer is granted a non-exclusive licence to the software for the term of this Agreement, if this is necessary for its use. The Customer is not entitled to any other licence beyond this. In particular, the Customer shall not be entitled to permit third parties full or partial access to the licensed software for non-independent use. The Customer may not disclose its ASP password to third parties, in particular not to technical service providers.
3.2.3 The Customer will be enabled to save data transmitted by it to the IT centre in a separate partition of the memory.


3.3 Supply, delivery, availability
3.3.1 picturemaxx shall install a copy of the licensed software accessible to the Customer and delivers a copy of the associated client software to the Customer. The supply of the client software is governed by the provisions on software licence agreements in section 2 above.
3.3.2 The Customer shall test the Software during the time period set forth in the service certificate, the functions that need to be tested and the means of testing shall be described in the respective service certificate. Picturemaxx warranty period for the software shall commence at the date of delivery or at the time the Customer is given the opportunity to download the Software.
3.3.3 picturemaxx supplies in digital form installation instructions and an operator’s manual as documentation together with the agreed software.
3.3.4. picturemaxx shall make the software available to the Customer in its computer centre for use at an availability ratio of 98.5% in the annual average. This does note comprise times during which the use of the Software is interrupted or impaired for urgent technical reasons or due to necessary maintenance work, always provided, however, that picturemaxx is not responsible for such interruption or impairment.


3.4 Compensation
3.4.1 A monthly fee shall be charged for the use of the provided software, at a time due to the 3rd of each month in advance.
3.4.2 If the Customer is in default with the payment of two monthly fees, picturemaxx will be entitled to block the use and availability of the provided software as long as the Customer will have payed all due fees.


3.5 Warranty
3.5.1 Any defects of the provided software or database which makes it fully or significantly unfit for the purpose contemplated by the Agreement or the software’s lack of warranted characteristics obligate picturemaxx to remedy the defect within a reasonable period. Unless agreed otherwise the defect shall be remedied by providing an update. The fitness for the use under the contract is not dependent on whether or not the software made accessible to the Customer meets the Customer’s special needs. Warranties and representations regarding characteristics must be set down in writing. The Customer is informed that no computer software can be made without any defects at all. The liability for defects is subject to use of the software in accordance with the terms of the Agreement.
3.5.2 The Customer shall immediately notify picturemaxx of any defects in the delivered software. Should the Customer fail to make such notification, the warranty rights of the Customer with respect to such defects shall be deemed forfeited.
3.5.3 If picturemaxx is unable to remedy the defect the Customer has the choice of reasonably reducing the agreed remuneration or to terminate the Agreement for cause pursuant to clause 3.10.2.
3.5.4 The transfer of Customer data to and from the computer centre shall occur at the sole risk of the Customer. Delays, losses or changes of data during such transfers shall not result in any warranty rights of the Customer.


3.6 Ownership and property rights
If the licence is limited in time the software including the related documentation provided to the Customer remain the property of picturemaxx. Picturemaxx remains the owner of all rights pertaining to the software licensed to the Customer including the various related materials, this also applies, if the Customer modifies the software or links it with software or databases of its own or of third parties. The client software is governed by the licence terms set out in section 2 above. The termination of the ASP Agreement for whatever reason does not entitle the Customer to rescind the licence agreement for the client software.


3.7 Third parties’ intellectual property rights
Picturemaxx holds the Customer harmless against any claims by third parties arising from the infringement of intellectual property rights for the licensed software in the version laid down in the contract, unless such claims resulted from the Customer’s breach of duty.


3.8 Liability
No-fault liability damage claims of the Customer against picturemaxx are excluded. Clause 1.3 above shall apply.





3.9 Commencement of the limitation period
The limitation period of the Customer’s rights related to defects commences at the time the software is made available. If the software was not made available the limitation period commences at the end of the year during which the claim arose. Clause 1.4 above shall apply.


3.10 Term of the Agreement
3.10.1 This Agreement may be terminated by either party by observing a notice period of three months before the end each calendar quarter, however, at the earliest upon elapse of 24 months from the conclusion of this Agreement.
3.10.2 A material breach of the obligations under the contract entitles both parties to terminate it for cause. In particular the disclosure of the login password by the Customer to third parties shall constitute cause for immediate termination.
3.10.3 No termination shall be valid, unless made in writing pursuant to section 126 German Civil Code.
3.10.4 Upon termination of the Agreement the Customer must delete all copies of the software in its possession and must return all other accessory material, such as the user documentation. Picturemaxx is entitled to insist on an affidavit from the Customer for this purpose.


§ 4 Update and support agreements

The following provisions apply specifically to update and support agreements:

4.1 Subject matter of the contract
4.1.1 Under an update and support agreement Picturemaxx shall provide the following services to the Customer:
- Supply of updates, clause 4.2.
- Debugging, clause 4.3.
- Answering Customer inquiries (hotline service), clause 4.4.
4.1.2 By signing an update and support agreement picturemaxx agrees to update the software products (software to be updated) which picturemaxx licensed to the Customer under a software licence agreement (cf. section 2 above) for long-term use.


4.2 Supply of updates
4.2.1 picturemaxx shall adjust the software to be updated to changing legal requirements in a reasonable period of time within its operational and economic capabilities. Such obligation shall not apply, if the adjustment would entail unreasonable efforts for picturemaxx.
4.2.2 picturemaxx endeavours to continuously develop and improve the software to be updated.
4.2.3 The number of updates shall be determined by picturemaxx reasonably exercised discretion taking into consideration the number and nature of the defects recognized and the resulting interference with the functioning of the software to be updated.


4.3 Debugging
4.3.1 The performance described in the software specifications to be used in compliance with the terms of the agreement is decisive for determining whether or not a defect is present. A defect shall be present if the software fails to work as described in the product description, renders wrong results, closes down uncontrolled or does not work properly according to its functions, making the use of the software impossible or impairing it more than only insignificantly. When agreeing on the remuneration in clause 4.7.3 such errors are reasonably taken into consideration, as their rectification is covered by the Customer’s rights regarding defects under the specific software licence agreement.
4.3.2 Disruptions caused by improper handling of the software, such as non-compliance with the installation instructions or the system requirements described in the product information, do not constitute defects for the purposes of the foregoing provision. If the software to be updated is rendered useless by changes in the user requirements of the Customer this does not constitute a defect.
4.3.3 The Customer must report the defect to be rectified and shall describe it as specifically as possible.
4.3.4 After receipt of the justified defect notification picturemaxx shall begin the debugging by using those resources and means which are available to picturemaxx within the individually agreed time limits. If an immediate debugging fails, picturemaxx shall inform the Customer immediately after becoming aware thereof by stating the reasons as well as the estimated time needed for the debugging. picturemaxx shall also make an effort to offer a work-around solution to the Customer
4.3.5 picturemaxx is free to rectify the error by supplying debugged software parts or versions (updates). The Customer must accept the update and install it on its hardware according to the installation instructions.
4.3.6 After the defect has been rectified the Customer must accept the product. picturemaxx will notify the Customer that it is ready for acceptance after completion of the work. Within 14 days after having been notified the Customer must declare acceptance or why acceptance is denied. If the Customer does not make any declaration within these 14 days both parties shall deem picturemaxx work to have been performed in compliance with the contract and hence acceptance is deemed declared.


4.4 Hotline service
4.4.1 picturemaxx maintains a hotline service for answering Customer inquiries relating to the software used by the Customer.
4.4.2 The Customer shall make inquiries by telephone, fax or e-mail under the numbers and e-mail address indicated in the support note.
4.4.3 picturemaxx shall respond to Customer inquiries to the best of its knowledge. The Customer is hereby advised that the quality of such response will largely depend on the information received from the Customer. The Customer will promptly receive an answer by telephone, e-mail or fax. picturemaxx does not owe the Customer a success in terms of resolving the respective issue.



4.5 Other services
4.5.1 Upon prior placement of a written order by the Customer, picturemaxx shall provide the Customer with additional services related to the software which are not included in the range of services described in clauses 4.2 to 4.4 of these GTC for a separate fee. This applies specifically to the following:
a)          all work and services performed at the Customer’s request outside the specially agreed times and not required under clause 4.2;
b)          work and services necessitated by improper handling of the software to be updated and/or breaches of warranty by the Customer, such as non-observation of the instructions for use, irrespective of whether these were caused by the Customer, its vicarious agents or persons not authorized by the Customer;
c)          work and services necessitated by force majeure or other circumstances for which picturemaxx is not responsible;
d)          work and services necessitated by the installation of an update provided to the Customer as well as instructions and training relating to such software versions;
e)          work and services resulting from modified or new user requirements of the Customer.
4.5.2 picturemaxx is not obligated to perform services which are not included in an update and support agreement, in particular not such as those mentioned above. However, picturemaxx will strive within the scope of its operational possibilities to support the Customer as much as is required to permit a sensible economic utilization of the software to be updated.


4.6 Customer’s obligations
4.6.1. The Customer shall assist picturemaxx in fulfilling the latter’s contractual service obligations free of charge. The Customer shall in particular:
a)          at the beginning of the term of the contract designate in writing a responsible contact person and a substitute for him or her who will be vested with the decision making powers and authority required to perform the software support agreement;
b)          exactly observe the symptoms and the system and hardware environment when defects are reported and report a defect to picturemaxx by indicating relevant information for the correction of the defect such as the number of users affected, description of the system and hardware environment and simultaneously active third vendor software, if any, and documents;
c)          make found defects available in a reproducible manner on a suitable data medium;
d)          use its best efforts to support picturemaxx in detecting the root cause of the defect and instruct its employees to cooperate with picturemaxx’ designated agent, if necessary;
e)          grant the employees assigned by picturemaxx to provide the software support access to the computers on which the software to be updated is stored and/or running;
f)           load the software and/or software parts received from picturemaxx following picturemaxx detailed instructions and always comply with picturemaxx suggestions for defect detection and correction;
g)          keep ready all data used in connection with or created by the software to be updated as a data backup in machine-readable form, which permit a reconstruction of lost data using reasonable efforts.
h)          bear the communication expenses (such as telephone, fax, email and postage expenses) incurred by the Customer by such support services as well as the labour cost of its own employees.
4.6.2 The obligations for cooperation set out above constitute material obligations under the contract. If the Customer violates its obligation to cooperate, picturemaxx is not obligated to perform. In case of repeated or major breaches picturemaxx may terminate the software support agreement by giving one month’s notice to the end of a month.


4.7 Remuneration
4.7.1 Update and support fees shall be agreed in individual contracts.
4.7.2 Update and support fees are payable on the third working day of each month in advance.
4.7.3 During the running of the statutory warranty period for defects in the Software which has been made available for long-term use, the update and support fees for the debugging shall be reduced proportionally by 1/3 based on the fee stipulated in the Update and Support Agreement.
4.7.4 Additional services of picturemaxx, including but not limited to those set out in clauses 4.2 to 4.4, specifically those pursuant to clause 4.5 must be paid for separately by the Customer according to the price list valid at the time of the performance of the service.
4.7.5 Travel and other expenses must be paid for separately, if the Customer gave its prior consent to a visit by a picturemaxx employee or for a special service as defined in clause 4.5.


4.8 Warranty
4.8.1 If work performed by picturemaxx under clause 4.3 is not suitable for the purpose contemplated by the contract or if a software does not have the agreed characteristics as per clause 4.2 or is unsuitable for regular use or the use contemplated by the contract, picturemaxx shall be entitled to make two subsequent deliveries, and unless this means an unreasonable effort, picturemaxx shall also be obligated to do so. If picturemaxx is unable to rectify or work around the defect within a reasonable period to permit the Customer to use the software as contemplated by the contract, the Customer may at its option reasonably reduce the compensation or rescind the contract.
4.8.2 If the Customer fixes deadlines for subsequent improvement or correction of defects it must give due consideration to the special circumstances of the case in point and determine the length of time accordingly.
4.8.3 In the event the Customer sets a deadline for picturemaxx to remedy defects the Customer shall immediately after fruitless elapse of the deadline notify picturemaxx in writing as to how to proceed with the Agreement. If no such notification is received, picturemaxx shall be entitled to assume that the Agreement remains in force unchanged.
4.8.4 The warranty does not cover defects caused by the Customer, in particular the devices or information used or made available by it, operating errors, non-compliance with safety measures, carelessness of the Customer or its employees or force majeure.
4.8.5 If it turns out in the course of the remedial work that picturemaxx is not responsible for these defects picturemaxx may charge the Customer for the time and cost expended in accordance with the price list valid at the time.
4.8.6 The statutory provisions apply to the services under clause 4.4.



4.9 Commencement of the limitation period
The limitation period of the Customer’s rights related to defects commences at the time of the delivery for services under clause 4.2, for services under clause 4.3 at the time of the stated or constructive acceptance and for services under clause 4.4 at the time the service is performed. Otherwise clause 1.4 above shall apply.


4.10 Term of the contract
4.10.1 The terms and the notice periods shall be separately agreed in individual contracts.
4.10.2 All termination notices must be in writing pursuant to section 126 German Civil Code to be effective.
4.10.3 In case of a material breach of the contract by the Customer picturemaxx is entitled to terminate the contract immediately.