General Terms and Conditions

General Terms and Conditions as of October 2016

General Terms and Conditions of MATESO GmbH, Daimlerstr. 15, 86356 Neusäß 
(hereinafter: MATESO) 

1. Scope

1.1 MATESO sells, manufactures and delivers merchandise, including software (as of version 8), solely on the basis of these General Terms and Conditions. 

1.2 These General Terms and Conditions shall apply to all future business relationships even if such relationships are not expressly renewed. Regulations set forth in other contractual clauses shall prevail over the regulations contained herein to the extent set forth in the documentation provided by the seller to the customer within the scope of mutually concluding an agreement. MATESO reserves the right to amend these General Terms and Conditions at any time. Such amendments shall apply to all transactions conducted after their publication on the company website.

1.3 These General Terms and Conditions shall only apply to entrepreneurs within the meaning of sec. 14 German Civil Code (BGB) if the agreement falls under the company's area of operation as well as to legal entities and special funds governed under public law within the meaning of sec. 310 para. 1 BGB.

1.4 Any deviating, contradictory or supplementary general terms and conditions issued by the customer, even if known, shall not form part of the agreement unless MATESO expressly confirms application of such terms and conditions in writing.

1.5 Reference is hereby expressly made to MATESO's Licensing Terms. These shall apply as supplementary stipulations to these General Terms and Conditions and shall form part of the agreement upon installation and use of the software. 

2. Offer and execution of agreement

By submitting an order via email, phone or fax, the customer is issuing a binding offer. An agreement shall not go into effect until such offer is accepted by MATESO. Confirmation of the order shall not constitute acceptance of the offer. Instead, the offer shall be considered accepted upon shipment of the license key or merchandise and with the associated confirmation of delivery issued by MATESO, if applicable. The sole purpose of order confirmation is to indicate that MATESO has received the order.

3. Delivery, merchandise availability

3.1 MATESO shall have the right to make partial deliveries. 

3.2 All information regarding availability, shipment or delivery of a product are estimates and approximations only. Such information does not constitute a binding or guaranteed shipment or delivery date unless expressly indicated otherwise by MATESO. 

3.3 MATESO shall immediately inform the customer if the ordered product is out of stock at that time. If the product is permanently out of stock, MATESO shall refrain from issuing a confirmation of receipt (confirmation of delivery). In such case an agreement shall not be effected. Any payments the customer has already made shall be reimbursed immediately. 

3.4 If the product is only temporarily out of stock, the customer shall be notified immediately in the order confirmation. If delivery is delayed by more than four weeks, the customer shall have the right to withdraw from the agreement. MATESO shall have the same right in such case as well. Any payments the customer has already made shall be reimbursed immediately. 

3.5 MATESO shall retain ownership of any products delivered for demonstration or trial purposes. In order to protect its interests, MATESO shall have the right to design products to no longer be fully functional after the demo or trial phase has ended. The customer may not derive any claims from the above. 

4. Retention of title

The delivered merchandise shall remain property of MATESO until payment has been made in full. This shall also apply to software usage rights. 

5. Pricing and shipping fees

5.1 All prices indicated on MATESO's website or in an offer prepared by MATESO are indicated ex VAT. VAT must not be paid on merchandise to be shipped to an EU member state other than Germany or to a country outside the EU.

5.2 Shipping costs to be paid by the customer are indicated on the order form.  

6. Terms of payment

6.1 Customers may only pay for ordered goods and services upon receipt of invoice. However, MATESO may also choose to accept other forms of payment. 

6.2 The purchase price shall be due upon conclusion of the agreement. If payment is due on a specific date, the customer shall be considered to be in arrears if payment has not been made by such date. In such case, the customer shall be under the obligation to pay MATESO interest on payments in arrears in the amount of five (entrepreneurs: nine) percentage points above the applicable basic interest rate. 

6.3 MATESO's right to claim other damages arising from payment in arrears on the part of the customer shall remain hereby unaffected. 

6.4 The customer may only use claims that are undisputed or have become res judicata to offset MATESO's claims.  

6.5 The customer shall only have the right of retention for claims that are undisputed or have become res judicata. 

7. Warranty, liability for material defects

7.1 Purchased products

If the customer has purchased products, MATESO shall be liable under the applicable legal regulations, in particular under secs. 434 et. seq. BGB. MATESO shall be under the obligation to grant a 12-month warranty for the delivered products as of date of delivery. Legal provisions shall apply to entrepreneurs in all other cases; sec. 377 German Commercial Code (HGB) shall remain hereby unaffected. Products delivered by MATESO shall only fall under an additional warranty if such warranty has been expressly granted by MATESO in writing.

If the customer modifies the product or improperly uses or repairs the product, the customer shall not have the right to assert claims for defect if such defect can be attributed to the customer's improper use of the product. If such defect is not due to improper use, the customer shall have the right to assert claims for defect. 

7.2 Products provided free of charge (demo and trial phases/versions)

If MATESO provides products free of charge for demo or trial purposes, warranty claims shall be based on sec. 524 BGB. Products delivered by MATESO shall only fall under an additional warranty if such warranty has been expressly granted by MATESO in writing. 

8. Scope of rights granted

8.1 MATESO shall retain any copyrights, industrial property rights and exploitation rights to the delivered software. Please also refer to MATESO's Licensing Terms. The customer shall only receive a simple, non-exclusive usage right that may not be sublicensed and, if leasing the software, the customer may only use it for a specified period of time. In all other cases, usage rights shall be structured as specified in MATESO's Software Licensing Terms, which serve as a supplement to these General Terms and Conditions.

8.2 Software and licenses may only be sold to third parities if MATESO first transfers the licensing rights. Transfer of licensing rights through sale to the original Licensee, license modification and relicensing shall only be possible through payment of a fee to MATESO. 

9. Software maintenance

9.1 A software maintenance service may be booked separately, providing the customer with updates and upgrades for the duration of the software maintenance agreement as such updates and upgrades are released by MATESO. Support shall only be provided for the duration of the term of the software maintenance agreement mentioned above. MATESO itself shall only provide customer support if MATESO is the customer's contracting partner. Support shall no longer be provided upon expiration of and failure to renew the software maintenance agreement. 

9.2 Product tutorials may be purchased separately. 

9.3 The customer's obligation to pay for software maintenance shall remain in effect regardless of whether the customer makes use of software maintenance products. 

9.4 The sole purpose of support provided via phone, email or remote access is to assist/advise the customer in using products or locating errors. MATESO shall not be under the obligation to guarantee the effectiveness of such support.

10. Information on data processing

10.1 MATESO collects customer data within the context of processing agreements. MATESO acts in compliance with the German Data Protection Act and the Telemedia Act. MATESO shall only collect, process or use the customer's master data or usage data without the customer's express permission to the extent necessary to fulfill the contractual relationship and for using and billing telemedia services.

10.2 MATESO shall not use data for advertising, market research or opinion polls without the customer's permission and shall not pass such information on to third parties without first obtaining the customer's consent. If a customer subscribes to the newsletter, its data shall be passed on to MATESO's partner, Cleverreach, to the extent necessary.

10.3 In all other cases, please refer to the additional information on customer consent and data collection, processing and use provided in the data privacy statement, which can be downloaded and printed at any time under the Data Privacy link on MATESO's website. 

11. Liability

11.1 MATESO shall only be liable for claims to damage asserted by the customer in connection with damage to life, limb or health or material violation of the agreement (material contractual obligations) or for other damages that can be traced back to intentional or grossly negligent violation of contract on the part of MATESO, its legal representatives or its vicarious agents. Material contractual obligations are those obligations that must be fulfilled to accomplish the purpose of the agreement. Any further liability is hereby excluded.

11.2 Liability for violation of material contractual obligations shall be limited to common, foreseeable damage to the extent such damage can be attributed to simple negligence, unless the claims for damage being asserted by the customer arise from damage to life, limb or health.

11.3 If claims are asserted directly against MATESO's legal representatives or vicarious agents, the limitations set forth in the above sections shall also apply in their favor.

11.4 The provisions set forth under the German Product Liability Act shall remain hereby unaffected. 

12. Written form requirement

There are no verbal side agreements. Amendments and additions to these provisions must be made in writing. This shall also apply to this clause. 

13. Place of jurisdiction

The place of performance and exclusive place of jurisdiction for all disputes arising from the contractual relationship with business people, legal entities and special funds governed under public law shall be Augsburg, Germany.  

14. Concluding provisions

14.1 The laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods shall apply to all agreements entered into between MATESO and the customer.

14.2 If any provisions set forth in these General Terms and Conditions prove ineffective, the remaining provisions shall remain thereby unaffected. The applicable legal regulations shall apply in the stead of such ineffective provisions. If this should constitute an unreasonable hardship for one of the contracting parties, however, the agreement in its entirety shall become ineffective for both parties.

14.3 The language of contract shall be German. The German version shall prevail regarding issues with interpretation or discrepancies due to translation of the original German version.