General Terms and Conditions (rental model)

General Terms and Conditions of Business of Valentin Software GmbH for the rental of standard software

 

1. Scope

1.1 These Terms and Conditions govern the contractual relationship between Valentin Software GmbH, Stralauer Platz 34, 10243 Berlin (hereinafter “Valentin”) and companies, legal entities under public law or special funds under public law (hereinafter “Customers“) for the provision of services by Valentin. They apply within the framework of current and future business relationships for the temporary provision and use of standard software and in each case also for corresponding pre-contractual negotiations.

1.2 Unless otherwise agreed, these Terms and Conditions and, taking precedence over these Terms and Conditions, the separate contract concluded between Valentin and the Customer (these Terms and Conditions and the separate contract together hereinafter referred to as the “Contract“) apply exclusively.

1.3 Conflicting or deviating terms and conditions, in particular the Customer's general terms and conditions, will not become part of the contract, even if Valentin executes the contract without expressly objecting to such terms and conditions.

1.4 If the subject matter of the contract is the provision of third-party standard software or open-source software, the provision takes place primarily and, if applicable, additionally on the basis of the separate (license) conditions of the third parties or the applicable open-source software licences.

 

2. Conclusion of the contract, written form

2.1 The contract is concluded, subject to these Terms and Conditions, either upon acceptance of Valentin's offer by the Customer or upon acceptance of the Customer's order by Valentin. In the event of contradictions or doubts, Valentin's offer or acceptance of the contract prevails.

2.2 Valentin does not offer any contracts or services to consumers.

2.3 The contract conclusion is subject to the form of the offer to conclude the contract by Valentin. Subsequent changes and contract amendments must be in writing to be effective. This also applies to the waiver of this written form requirement.

2.4 The contract conclusively contains all agreements between the contracting parties on the subject matter of the contract. Written and verbal collateral agreements have not been made. Proof of a collateral agreement is permissible.

2.5 Insofar as the written form is stipulated in these Terms and Conditions, the text form pursuant to Section 126b of the German Civil Code (BGB) (e.g. e-mail, fax) also suffices.

 

3. Service provision

3.1 Valentin only assumes a guarantee for services and their quality if this is expressly agreed in the contract. If there is no express provision governing the existence of a guarantee, it can be assumed in case of doubt that no guarantee has been agreed.

3.2 Service deviations from the original agreement are permitted, provided that they fulfil or exceed the agreed performance characteristics.

3.3 Dates and deadlines must be in writing. Valentin's compliance with binding deadlines and dates is subject to the timely and proper fulfilment of the Customer's obligations and duties.

 

4. Scope of services

4.1 The software quality is determined exclusively by the product description and documentation of the software as well as the agreed requirements.

4.2 Valentin provides its services in accordance with the state of the art.

4.3 Valentin provides the Customer with the standard software exclusively in object code.

4.4 Upon providing the software, Valentin delivers the user documentation required for its use in electronic form.

4.5 Additional services must be agreed and remunerated separately. In particular, Valentin only provides software installation and implementation services (online tool hosting) and training services if these are expressly agreed and remunerated separately. The same applies to the adaptation of software, i.e. customising, in particular with adaptations of interfaces to third-party systems and software extensions (individual software).

 

5. Software maintenance

5.1 Valentin is entitled to adapt the contractual software after the contract commencement without the Customer's consent in order to improve the software's functionality or to adapt the services to the state of the art.

5.2 Software maintenance includes providing the software’s latest program version released by Valentin during the term of the contract and includes

•  electronic delivery of updates, i.e. program changes within a program variant of a software program to a higher program version,
•  access to updated component data, i.e. updated data records stored in the software program relating to the module used (e.g. PV modules, inverters, collector data),
•  answering technical questions by phone/email in German or English language and general questions about delivery, registration, updates and access to component data

5.3 The services are only provided in relation to the most recent and the immediately preceding software version delivered by Valentin.

5.4 The Customer is not obliged to install or use the updates or new program versions provided by Valentin, unless these serve to rectify defects; in this case, clause 17 applies.
Valentin only provides support for previous program versions if this has been expressly agreed or if Valentin is obliged to remedy defects in accordance with clause 17.

5.5 Installation and training services are not owed by Valentin.

5.6 If Valentin makes the software available to the Customer free of charge, the Customer does not have any claim to software maintenance unless otherwise agreed in writing.

 

6. Delivery

The software is supplied in electronic form as a download.
The software can be accessed after registration via a password-protected user account.
An active internet connection is required for use.

 

7. Rights of use and named user licence

7.1 By providing the software, Valentin grants the Customer the simple, non-transferable and non-licensable right, limited in time to the duration of the contract, to use the contractual software within the scope of their own business activities for their own business purposes in accordance with the scope and purpose of the contract.

7.2 The Customer is only entitled to install the software provided by Valentin in the agreed system environment and to use it within the scope of the agreed named user licences.

7.3 The right of use may only be exercised at the same time by the natural persons named by the Customer (named users). Only one named user licence can be used per person.
Named users can only be employees of the Customer and the Customer himself, insofar as they are natural persons.
Unless expressly agreed otherwise, a separate agreement is required for use by companies affiliated with the Customer (Sections 15 et seq. of the German Stock Corporations Act (AktG) or their employees.

7.4 Once the Customer account has been activated by Valentin, using the software requires the registration of at least one licence manager per Customer as well as the individual named users. The licence manager can either be the Customer themselves (if they are a natural person) or a person employed by them. The licence manager is responsible for managing the named user portfolio and can be identical to a named user.

7.5 As soon as licence managers and named users have registered themselves on the registration page, they can log in with their login details (user name and password) and access the software via their user account.

7.6 Use via the user account is possible across devices with different end devices (e.g. notebook, desktop, etc.), but each named user is only authorised to access with a maximum of one end device at a time.

7.7 The user account is only valid for the respective named user and may not be transferred or used by another user.

 

8. Change of named users

8.1 The Customer may replace named users.

8.2 For the exchange, the licence manager withdraws the rights of use from the original named user in the licence administration and transfers them to a new named user by resetting the login data of the previous named user and assigning the account to a new named user. The new named user can then log in to the system with their own login details once they have registered.

8.3 The Customer ensures that the original named user completely and permanently ceases to use the software and removes any copies of the software from their computers.

 

9. Customer involvement

9.1 The Customer is obliged to provide reasonable co-operation in connection with the contract.

9.2 In the event of rectification of defects, the Customer supports Valentin in the search for the defect’s cause.

9.3 The Customer provides the information, data and documents required for providing the services in good time in the form determined by Valentin in consultation with the Customer.

9.4 The Customer is obliged to ensure that the software is only used by the named users and only within the scope of the contractually agreed rights of use.

9.5 The Customer is obliged to keep their password secret and to not grant third parties access to the login data. The Customer warrants that they have instructed the named users and licence managers to keep their login data confidential. If the Customer suspects that the access data is being used by third parties, the Customer informs Valentin thereof without delay.

9.6 The Customer assures that the information provided by them or the named user and licence manager during registration is correct and complete and will be updated if necessary.

9.7 The Customer provides co-operation services at their own expense.

 

10. Reservation of consent

10.1 Without the prior written consent of Valentin, the Customer may not
(i) grant third parties any rights to the software and transfer their rights to third parties, even temporarily or partially. In particular, the Customer is not permitted to sell or rent the software to a third party, to grant a sub-licence or to make it available or accessible to a third party in any other way.
(ii) translate, edit, arrange or otherwise modify the software, in particular reverse engineer or decompile the software, unless this is necessary to achieve interoperability with other programs; in this case, the Customer may decompile the interface information within the scope of Section 69e of the German Copyright Act (UrhG), provided that they have informed Valentin in writing of their intention to do so and have unsuccessfully requested the provision of the necessary interface information within a period of two weeks.
(iii) reproduce or copy the software, unless it is a backup copy made by a person authorised to use the software in accordance with the rules of technology only to the extent necessary. Backup copies on movable data carriers must be labelled as such and marked with Valentin's copyright notice. The backup copy must be deleted upon the contract’s termination.

10.2 Multiple use of software. The Customer is only authorised to use software beyond the rights of use granted under the contract with the prior written consent of Valentin. In the event of additional use without consent, Valentin is entitled to invoice the amount incurred for the additional use (including for the past) in the form of compensation.

10.3 Third-party standard software. If third-party standard software is part of the contract, the delivery or transfer is carried out primarily and, if applicable, additionally on the basis of the separate (licence) conditions of the third party.

10.4 Open-source software. If open-source software is part of the subject matter, the delivery or transfer is carried out primarily and, if applicable, additionally on the basis of the applicable open-source software licences.

10.5 Copyright notices. The Customer is not authorised to change or remove copyright notices without Valentin's prior written consent.

 

11. Unauthorised use; export restrictions

11.1 The Customer is not authorised to use the contractual software in a way that is prohibited to the Customer by law, legal regulations or official orders and/or to infringe the rights of others.

11.2 The contractual software may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the software or associated technologies may be subject to restrictions abroad. The Customer complies with the applicable export and import control regulations and all other relevant regulations. Valentin's contract fulfilment is subject to the proviso that there are no obstacles to fulfilment due to national and international export and import regulations or other statutory provisions.

 

12. Examination authorisation

Valentin is entitled to check whether the Customer is complying with the agreed scope of use. For this purpose, the Customer permits Valentin to carry out appropriate checks and, in particular, provides Valentin with the information required to clarify the actual volume of utilisation and allows Valentin to review relevant documents.
If the result of the review is that the Customer has exceeded the contractually agreed scope of use or that the use is otherwise not in accordance with the contract, the Customer bears the reasonable costs of the review, otherwise Valentin bears the costs. All other rights remain unaffected.

 

13. Remuneration, due date and offsetting

Unless otherwise agreed in the contract, the following applies with regard to remuneration:

13.1 The Customer is obliged to pay remuneration for the services provided by Valentin under the Contract. The remuneration amount is based on the price stated in the product description on Valentin's website at www.valentin-software.com at the time the Customer submits the contractual declaration.

13.2 All agreed prices with regard to remuneration are net prices. Discounts, rebates or other reductions must be agreed separately in writing.

13.3 All prices stated in an offer or contract and on Valentin's website are exclusive of all applicable taxes, in particular the applicable value added tax.

13.4. The remuneration is invoiced in advance for the term of the contract or, in the case of open-ended contracts, for the minimum term (or the respective extension period) and is payable within fourteen days of receiving the invoice.

13.5 The Customer may only offset counter-claims or withhold payments due to such claims if the claims are undisputed or have been recognised by declaratory judgement or if the counter-claims arise from the same order under which the delivery or service in question was made.

 

14. Contract term, termination

14.1 The contract commences after the contract's conclusion upon activating the software licence by activating the user accounts by Valentin. The actual use by the Customer or the named user is not relevant.

14.2 The term of the contract is determined by Valentin's offer or the contract concluded between the parties.

14.3 If a trial period has been agreed, it ends automatically and without the need for termination at the end of the respective trial period.

14.4 Contracts with a fixed term (e.g. for three or twelve months) end automatically after the expiry of the contractually agreed fixed-term period without the need for termination. The contract cannot be terminated during the fixed-term period.

14.5 Open-ended contracts are concluded for an indefinite period with a minimum term specified in the contract (e.g. 12 months). After expiry of the minimum term, the contract is extended by the duration of the minimum term in each case, unless it is terminated in due time before expiry of the minimum term or the respective extension period by one of the two contracting parties. Unless otherwise contractually agreed, the termination period for each contracting party is two months.

14.6 The right to extraordinary termination for good cause remains unaffected. Good cause entitling Valentin to terminate the contract is deemed to exist in particular if the Customer infringes Valentin's rights of use by using the software beyond the extent permitted under the contract, provided that Valentin has previously set the Customer a reasonable deadline to remedy the situation without success or such a deadline or warning is dispensable under the statutory provisions.

14.7 If Valentin makes the software available to the Customer free of charge during the contractual period, Valentin is also entitled to terminate the contract in accordance with the provisions on loans pursuant to Section 605 BGB.

14.8 Every termination must be made at least in text form.

14.9 In the event of terminating the contract, the Customer must completely and definitively cease using the software and remove any copies of the software from their computers.

 

15. Reservation of rights

Valentin reserves all rights to be granted until full payment of the remuneration owed under the respective contract. Until full payment has been made, the rights are only provisional and are freely revocable by Valentin at any time. If Valentin asserts the reservation of rights, the Customer's right to use the software expires. In this case, clause 14.9 applies.

 

16. Property rights of third parties

16.1 If a third party asserts claims against the Customer based on industrial property rights or copyrights due to the software provided by Valentin, the Customer must inform Valentin of this immediately and comprehensively in writing.

16.2 At their own expense, Valentin defends the Customer against all claims of third parties which are derived from an infringement of an industrial property right or copyright by software used by Valentin in accordance with the contract and reimburses the Customer for costs and damages imposed on them by a court or included in a settlement previously approved by Valentin, provided that
(i) the Customer immediately notifies Valentin in writing of the assertion of such claims,
(ii) all defence measures and settlement negotiations are reserved to Valentin; and
(iii) Valentin is notified of such claims before claims for defects of title are time-barred.
The Customer supports Valentin in this respect and provides Valentin with the necessary and relevant information for the legal defence or settlement.

 

17. Rights due to defects

17.1 Valentin warrants that the software is free from defects which cancel or reduce its suitability for use in accordance with the contract. An insignificant reduction in efficiency is irrelevant.

17.2 If defects occur in the software, the Customer must notify Valentin thereof without delay, stating the information known to them that is useful for recognising and remedying the defect.

17.3 Valentin analyses reported defects and remedies the defects. The rectification of defects requires that the defect is reproducible.

a) Material defects: At their discretion, Valentin provides the Customer with new, defect-free software (replacement delivery) or remedies the defect; Valentin is also deemed to have remedied the defect if Valentin shows the Customer reasonable ways of avoiding the effects of the defect (workaround solutions).
Valentin may offer the Customer patches, bug fixes or new software to remedy defects. If the Customer refuses to install them, Valentin is released from the obligation to remedy the defects, unless the software would have a lower or worse functionality after installing patches, bug fixes or the new software than before.
In particular, a defect is not deemed to exist if the fault was caused by improper handling or improper software operation (e.g. operation in systems and hardware environments other than those specified in the contract).

b) Defects of title: At their own discretion, Valentin provides the Customer with a legally unobjectionable opportunity to use the service (e.g. by obtaining the necessary rights of use) or modify the service in such a way that it no longer infringes the rights of third parties but continues to meet the agreed requirements (e.g. by providing a new product).

17.4 The Customer's other statutory claims due to defects or poor performance remain unaffected. The Customer may only demand compensation for damages or reimbursement of futile expenses within the limits set out in clause 18.

17.5 The liability for material defects and defects of title lapse if the Customer or third parties make changes to Valentin's services without being authorised to do so by law or by contractual agreement or without Valentin having expressly consented to the changes in advance, unless the Customer proves that the defect is not attributable to the changes and that these have not made it more difficult to identify, analyse and rectify the defect.

17.6 If it is determined that a defect reported by the Customer does not actually exist or is not attributable to services provided by Valentin, Valentin may demand compensation from the Customer for the expenses incurred in analysing and otherwise processing the defect, provided that the Customer acted wilfully or with gross negligence when making the report.

17.7 Valentin endeavours to enable the use of the software at all times. Nevertheless, downtimes may occur due to maintenance work required for operation, updates or circumstances for which Valentin is not responsible (e.g. force majeure), meaning that 100% availability cannot be guaranteed. Liability in accordance with Section 18 of these GTC remains unaffected.

17.8 To the extent that the contents of the database are provided by third parties, Valentin does not warrant that their contents are accurate, complete and up-to-date. Therefore, liability for third-party content is not accepted.

 

18. Limitations of liability

If Valentin makes the software available to the Customer free of charge, Valentin is only liable in accordance with the provisions on loans in the event of intent and gross negligence or fraudulent intent.
The following applies to chargeable use:

18.1 Valentin is liable without limitation in the event of intent or gross negligence, for injury to life, limb or health, in accordance with the provisions of the German Product Liability Act, in the event of fraudulent intent and to the extent of a guarantee assumed by Valentin by way of exception.

18.2 In the event of a slightly negligent breach of an obligation, Valentin is only liable in the event of a breach of material contractual obligations. These are obligations whose fulfilment enables the proper execution of the contract and the observance of which the contractual partner regularly relies on and may rely on. In this case, Valentin's liability is limited to the amount of typically foreseeable damage. Claims under this clause 18.2 become time-barred two years after they arise.

18.3 The Customer is responsible for the regular and appropriate backup of their data in accordance with the state of the art. In the event of data loss for which Valentin is responsible, Valentin is only liable for the costs of (i) the data duplication from the backup copies to be made by the Customer and (ii) the restoration of data that would have been lost even if a proper data backup had been carried out, unless a case of clauses 18.1 and 18.2 applies.

18.4 Valentin has no further liability. In particular, Valentin is not liable for initial defects unless the requirements of clauses 18.1 and 18.2 are met.

18.5 To the extent that liability vis-à-vis Valentin is excluded or limited, this also applies to the personal liability of Valentin's employees, staff, representatives and vicarious agents.

 

19 Secrecy

19.1 The contracting parties undertake to maintain secrecy about all information to be treated confidentially, in particular business or trade secrets of the contracting party, which have come to their knowledge in the context of this contract, and not to make them accessible to third parties (with the exception of subcontractors and affiliated companies within the meaning of Section 15 et seq. of the German Stock Corporations Act (AktG) or to use it for any purpose other than the contractually agreed purpose.

19.2 Business or trade secrets include, in particular, all objects of the software including its documentation.

19.3 The obligations under clause 19.1 do not apply to information that
(i) was lawfully known to a contracting party prior to the date of receipt,
(ii) was known to the public before the date of receipt or was generally accessible,
(iii) became known or generally accessible to the public after the date of receipt, without the party receiving the information being responsible for this; or
(iv) is required to be published or disclosed by law, governmental order or court order.

19.4 This confidentiality obligation remains unchanged after the end of the contract.

 

20. Data protection

20.1 The contracting parties undertake to comply with the provisions of data protection law. Valentin complies with the rules of data protection, in particular if Valentin is granted access to the Customer's place of business or hardware and software.

20.2 Valentin collects, processes and uses personal data from this contract for the purpose of contract fulfilment and customer service. The data collected within the scope of this contract is processed on the basis of Art. 6 (1) sentence 1 b) GDPR.

20.3 If personal data of the Customer's employees is collected and processed in connection with using the software, the Customer warrants that they have informed their employees about the data processing prior to commencement and have obtained any necessary consent to the data processing.

20.4 Valentin does not intend to process or utilise personal data on behalf of the Customer. The processing or utilisation of personal data only occurs, if at all, in exceptional cases as a secondary consequence of the contractual services.

20.5 Details of data processing can be found in Valentin's privacy policy.

 

21. Subcontractors

Valentin is authorised to engage and subcontract freelancers and other third parties to provide services without the Customer's consent.

 

22. Force majeure

Force majeure means the occurrence of unforeseeable, extraordinary circumstances which Valentin cannot avert despite exercising reasonable care, e.g. floods, fire damage, pandemics or epidemics, war, operational disruptions, official intervention, energy supply difficulties, strikes or lockouts, whether these circumstances occur in Valentin's sphere or in the sphere of their suppliers. If Valentin is prevented from fulfilling their obligations by force majeure, the delivery period is extended to a reasonable extent, unless delivery or performance becomes impossible. If delivery or performance becomes impossible due to force majeure, Valentin is released from their performance obligations. In this case, the Customer does not have to provide any services in return.

 

23. Amendment of the GTC

Valentin reserves the right to amend or supplement these Terms and Conditions in the future for good cause, provided that this does not unreasonably disadvantage the Customer. In particular, a change in the legal situation, changes due to new technical developments or other equivalent reasons are cited as good cause. Valentin informs the Customer of any change in text form (e.g. email), stating the changed content. The amendment becomes effective if the Customer does not object to its inclusion in the contractual relationship with Valentin within six weeks of receiving the notification of amendment, at least in text form.
The Customer will be informed again about the right of objection and the possible consequences of an objection in connection with the notification of change.

 

24. Place of jurisdiction; place of fulfilment; applicable law

24.1 If the Customer is a merchant, a legal entity under public law or a special fund under public law or a company as defined in Section 14 BGB or if they have no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between Valentin and the Customer is, at Valentin's discretion, Berlin or the Customer's registered office. However, Berlin is the exclusive place of jurisdiction for legal action against Valentin. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.

24.2 The place of fulfilment is Berlin.

24.3 The contract and all disputes arising from and in connection with the contract are governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

25. Severability clause

Should one or more contract provisions be or become invalid in whole or in part, this will not affect the validity of the remaining provisions. In place of the invalid provision, a valid provision is deemed to have been agreed which comes as close as possible to the economic intentions of the contracting parties. The same applies in the event of a gap.

Version dated: November 2024