1. Validity and Conclusion of Contracts

The only way to order the contractual services is by acceptance of a written offer from MKA and by signature of the Customer or by means of a written order from the Customer. Any annexes exceeding the scope only become part of the contract if express reference is made to them in the MKA offer or a MKA order confirmation.

 

The General Terms and Conditions of MKA Software GmbH as well as the Licence Agreement shall apply. If a service contract was concluded, the Software Service Agreement of MKA Software GmbH shall apply.

The following regulations also apply to third-party software that MKA Software GmbH may also sell, unless otherwise regulated in these General Terms and Conditions or the offer from MKA Software GmbH.

2. Prices and Terms of Payment

All prices are exclusive the statutory value added tax (VAT). The prices are due for payment immediately after delivery of the products and receipt of the invoice and are payable without deduction.

Different payment conditions only apply if they are expressly referred to in the MKA offer or a MKA order confirmation.

3. Scope of Delivery

We deliver the software stipulated in the purchase contract to the Customer.

Any support and maintenance services are subject to a separate agreement and additional remuneration of MKA Software GmbH, unless otherwise regulated in these General Terms and Conditions or the offer from MKA Software GmbH.

 

The product description is ultimately decisive for the nature of the functionality of the contract software. MKA Software GmbH is not responsible for any condition of the software that goes beyond this. In particular, the Customer cannot derive such an obligation from other oral or written representations and presentations of the MKA software or from sales discussions with MKA, unless MKA has expressly confirmed the additional properties in writing. Guarantees require the express and written confirmation of the MKA management.

4. Warranty

 

At the time of the transfer of risk, it is warranted that the software does not have any defects which nullify or significantly reduce its value or its suitability for the contractually stipulated use of the software under the contract.

The warranty period for software is six months. It starts at the time the software is delivered. During this period, we will provide diagnosis and correction of defects. The Customer, however, undertakes to notify any detected defects immediately in writing and he/she will accept even repeated correction of defects by MKA Software GmbH prior to asserting any claims for reduction in price, recission or compensation of damages.

The MKA software and the software of a third-party provider may be based in part on data or files from third-party providers. MKA assumes no liability for the accuracy, completeness and up-to-dateness of the above-mentioned data and files. This also applies to availability and the update date.

5. Reservation of Title

The ownership of the software and the data carrier will not pass over to the Customer until the remuneration owed has been paid completely. If the Customer maintains a continuous business relationship with MKA Software GmbH, the obligation to fully pay the remuneration owed is replaced by the obligation to pay all amounts due to MKA Software GmbH.

In the event of a delay in payment or other significant breaches of contract by the Customer, MKA Software GmbH is entitled to demand the return of the software under reservation of title even if MKA Software GmbH does not resign from the contract.

6. Customer Information

 

MKA Software GmbH fulfils its information and warning obligations through publications on the Internet at www.MKA.eu and via Customer information usually sent electronically to Customers. Any claims against MKA Software GmbH for damages that could have been avoided if the Customer had taken notice of the relevant information in due time are excluded. Regulations concerning liability remain unaffected.

7. Liability

Our liability to the customer covers intent and gross negligence, the missing of warranted properties and the breach of decisive contractual obligations by MKA Software GmbH. We are also liable for claims in accordance with the Product Liability Act. All other cases are excluded.

8. Miscellaneous

The Customer’s General Terms and Conditions will not become part of the contract. The place of jurisdiction is Stuttgart in Germany.

Licence Agreement Concerning the Use of the Software

9. Licence Conditions

Upon full payment of the agreed licence fee, the Customer (Licensee) acquires the non-exclusive right to use the software products of MKA Software GmbH (Licensor) for the intended purpose and in accordance with the scope stipulated hereafter. All rights going beyond the afore-mentioned ones remain with the Licensor. Both the source code of the MKA software and the source code of the third-party software are not part of the contract.

MKA is entitled to verify the use of the MKA Software by asking the Customer for a written self-disclosure (generally once a year). MKA may also carry out remote surveys for verification purposes, insofar as a self-disclosure was refused or no meaningful results were transmitted to MKA therein and objective indications of a violation of rights by the Customer exist.

If it becomes apparent in the self-disclosure or in any other way that the use of the MKA software by the Customer exceeds the contractual agreements, a contract must be concluded with MKA for the additional purchase of required licences. In this respect, MKA reserves the right to refuse agreed discounts that exceed the contractually agreed volume discounts in this case.

10. Terms of Use of On-Premise Software

A single-user licence allows the Customer the use the software of MKA Software GmbH on a single workstation at a time at any location within the country for which the licence was purchased, provided that it is used by the same natural person or legal entity.

An installation on multiple workstations is generally permitted. Simultaneous use of the software on different workstations requires additional licences, however.

The single-user licence can be moved between locations. The prices for multi-user licences are specified in our current price list (upon request).

11. Terms of Use of the Software with Additional Stipulations Concerning the Agreement Type Subscription

If a subscription agreement was concluded, maintenance is included in the scope of services offered and can only be terminated in combination with the subscription agreement. Moreover, a temporary right of use for a single user exists only in connection with the current version of the subscribed MKA software.

Unless otherwise stated in the offer of MKA Software GmbH, each subscription agreement has a minimum term of twelve (12) months from the conclusion of the agreement (“minimum term”). After expiry of this period, both the subscription agreement and the included Software Service Agreement are automatically extended by a further year.

Software subscription agreements may be terminated in writing with three months’ notice to the end of the renewal period, but for the first time at the end of the minimum term of the agreement. This does not affect special termination rights and terminations for good cause. If the subscription agreement is concluded on a monthly basis, it can be terminated at monthly intervals.

12. Transfer of the Software

Prior to transferring the software, the Customer must apply in writing for approval by MKA Software GmbH. The transfer of the software is subject to the payment of a fee. The transfer of individual licences is not permitted. All licences acquired by the Customer may only be transferred as a whole. The current Licensee must ensure that he/she hands over all program copies to the future Licensee and deletes them from his/her mass storage media. The Customer’s right of use terminates with the transfer of the software.

13. Reproduction of the Software

The reproduction of the software to the extent necessary for the orderly backup of data is generally permitted. The Licensee undertakes to adopt all measures required to prevent any unauthorised reproduction of the software and any unauthorised transfer of reproduced versions to third parties.

14. Copyright

The Customer must not apply any changes to the software products other than those authorised by Art. 69e of the German Copyright Act (particularly not edit, reverse engineer or extract parts of the software) and he/she must not use this software as a basis for the development of other software unless this was agreed in a separate contract with the Licensor. Neither has the Customer the right to remove from the program any brand names, trademarks, copyright notes and other notes and measures protecting the program.

15. Contractual Penalty

For each case of breach of one of the afore-mentioned contractual obligations, the Customer undertakes to pay a contractual penalty that is at least five times as high as the licence fee for the relevant program according to the current price list.

Natural persons or legal entities who possess and use unauthorised copies of the software of MKA Software GmbH for commercial purposes will have to pay a contractual penalty that is twice as high as the sum of all list prices for the software of which they possess and use unauthorised copies.

16. Software Service Agreement (SSA)

The Licensee may conclude a Software Service Agreement (SSA) for the purchased software. The SSA must always be concluded for the totality of purchased programs. In connection with an SSA, all updates are free of charge. You can find further information on the SSA in the section “Software Service Agreement”.

17. Update of Existing Programs

Customers who have not concluded an SSA will receive new program versions in the framework of a purchase contract via an update. The price of the update depends on the change of the program’s performance.

18. Service & Support

The service hotline is generally free of charge for Customers that have concluded an SSA. Customers without SSA have the right to use our hotline free of charge for the purchased licences during three months after the purchase of a new program. The purchase of an update does not entitle the Customer to acquire support free of charge. Support from the Customer Success Team is also included in the subscription model for the duration of the subscription.

You can find the telephone numbers and the availability times of the MKA service team on the internet at www.MKA.eu.

Software Service Agreement of MKA Software GmbH

19. Subject Matter

The Software Service Agreement (SSA) comprises the maintenance of the current program versions. Maintenance of the software in the sense of the SSA means the following:

• Adjustment to technical modifications of the operating systems
• Adjustment to modifications of the currently applicable calculation methods
• Functional extensions of the programs

The Customer is not entitled to modifications to former program versions.

20. Services

The Software Service Agreement comprises the following services:

• Automatic updates of all programs used under the licence. The number, the time of availability and the content of the updates are at the sole discretion of MKA Software GmbH.
• Free service hotline for telephone enquiries, enquiries via e-mail and direct web enquiries via the program. The available support refers to software problems arising during the use of the programs. Any further consultation services concerning the solution of structural problems with the program or general IT problems are not defined as support and are not included in the SSA. MKA distribution partners provide first-level support of their customers. Requests with a higher level of difficulty are forwarded by the partner to MKA support. Direct customer contact remains with the partner.
• Direct access to the MKA Service and FAQ section as well as to knowledge databases (e.g. Support Bot) with the option of obtaining the latest program versions via the Internet.
• Additional purchases of programs to expand the portfolio according to price list (upon request).
• Participation in training courses for the individual programs at a reduced rate per day.

21. Execution of the Agreement

If new program versions require an adjustment of the Licensee’s hardware or operating system, he/she must ensure these measures on his/her own behalf prior to the installation of the update. The Licensee is not entitled to receive maintenance of his/her version of the program used in combination with a special operating system.

22. Discontinuation of Programs

If individual programs are removed from the portfolio of MKA Software GmbH or the software maintenance scope the Licensee is not entitled to replacement. The SSA service fee may be reassessed if a program is eliminated.

23. Remuneration

The service fee for the totality of the software MKA Software GmbH used by the Licensee is invoiced usually as an annual amount. The calculation of the service fee is based on the prices defined in the currently valid price list (upon request). The regulations concerning multi-user access are stipulated in the price list. The service fee is payable once per year or every six months after the conclusion of the agreement.

 

MKA is entitled to adapt the range of services of the maintenance to the further development of the MKA Software and to technical progress. If the customer does not make use of his legally regulated special right of termination, the maintenance will be continued with the changed range of services. The same applies to the adaptation of these General Terms and Conditions, insofar as this does not change essential contents of the rental agreement for the equivalence relationship between the parties and the change is reasonable for the customer.

MKA may adjust the remuneration at most within the framework of the published consumer price index (inflation rate). The index of the average gross monthly earnings of full-time employees in Germany for the economic sector of the provision of information technology services (currently published in quarterly figures by the Federal Statistical Office in Fachserie 16, Reihe 2.4, Gruppe J 62) is to be used as the basis for determining the scope of change. If this index is no longer published, the index published by the German Federal Statistical Office that most closely reflects the development of average gross monthly earnings in the aforementioned industry shall be used to determine the scope of the change.

If this is the first compensation adjustment, the index development between the index level published at the time of the conclusion of the agreement and the index level last published at the time of the adjustment declaration shall be decisive for the change framework. If a compensation adjustment has already taken place previously, the change framework shall be defined by the index development between the index level last published at the time of the previous adjustment declaration and the index level last published at the time of the new adjustment declaration.

In the event of an adjustment of the previous remuneration of 10% or more, the Customer has the right to terminate the agreement at the end of the contract term within four (4) weeks of receipt of the adjustment declaration (special right of termination).

24. Warranty

The terms of warranty stipulated in the Terms and Conditions of Business apply to the software. Maintenance and support are to be considered as services rendered on the basis of this agreement. MKA Software GmbH does not owe the successful solution of the problem due to the advice given or other services rendered by its service team to the Customer.

25. Term of a Software Service Agreement

The duration of the agreement is unlimited. Either party can terminate the agreement with three months’ notice for the first time at the end of a minimum term specified in the agreement.

After expiry of the minimum contract term, the agreement is automatically extended by another year and can be terminated by either party with a notice period of three months to the expected new term of the agreement. If the Customer is significantly in default of payment, MKA Software GmbH is entitled to terminate the Software Service Agreement.

The notice of termination must be transmitted in writing to the other party.

26. Final provisions

The general terms and conditions of MKA Software GmbH apply.

German law applies exclusively to all contractual and non-contractual claims without the UN Convention on Contracts for the International Sale of Goods. The conflict of laws rules do not apply. The exclusive place of jurisdiction for all disputes arising from and in connection with the contract is the headquarters of MKA Software GmbH. This jurisdiction agreement also applies to international Customers.

 

Changes and additions to the contract as well as all contract-relevant declarations of intent and declarations regarding the exercise of design rights, in particular terminations, reminders or setting deadlines, must be in writing. This also applies to a waiver of the written form requirement. The written form requirement can also be met through correspondence or (apart from terminations) through electronically transmitted signatures (fax, transmission of scanned signatures via email, digital signatures or other agreed electronic contract conclusion procedures). However, Section 127 Paragraphs 2 and 3 of the German Civil Code (BGB) do not apply.

 

Conditions of the Customer that conflict with or supplement the contract – in particular general terms and conditions – do not become part of the contract, even if MKA carries out a contract without expressly contradicting such conditions.

 

Other services that are not covered by the express service descriptions of this contract must be agreed separately. Unless otherwise agreed, the General Terms and Conditions of MKA Software GmbH and the obligation to pay in accordance with the currently valid MKA price and conditions list (upon request) apply to these services.

 

Date: 01.01.2024