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GTC

General Terms and Conditions (GTC)

of Herborner Pumpentechnik GmbH & Co KG for the use of the digital operating logbook "eThemis" (SaaS)

1. Scope of Application

(1) These General Terms and Conditions ("GTC") apply to all agreements between Herborner Pumpentechnik GmbH & Co KG, Littau 3-5, 35745 Herborn ("Provider"), and its customers regarding the provision and use of the digital operating logbook "eThemis," including the web portal and mobile applications for iOS and Android (the "Software"). These GTC govern the temporary provision of the Software and the further services, as defined in more detail below, provided by the Provider to the Customer for the use of the Software against payment or free of charge (the "Services").

(2) The agreement for the Services based on these GTC, including all amendments, supplements, or other agreements (the "Contract"), takes effect upon one of the following actions:

  • Digital Acceptance: The GTC have been accepted by the Customer by ticking the corresponding check box provided on the Software for subscribing to the Services, thereby declaring that the GTC have been read, understood, and accepted. The Provider then confirms the contractual relationship by sending a confirmation email to the Customer's specified email address. Upon receipt of this confirmation and/or acceptance of the ordered Services, the GTC are deemed accepted by the Customer.

  • Written Acceptance: An agreement incorporating these GTC as an annex has been signed in writing by the contracting parties (Provider and Customer).

(3) Subject to any deviating provisions in the applicable service description or the agreement, the Customer may use the Services and the underlying product solution, depending on the Services selected, either:

  • (i) for its own internal purposes;

or

  • (ii) as a service provider for the analysis of customer data. In this case, the Customer is entitled to pass on and make available the results of the services rendered by the Provider to its own end customer on the basis of an agreement concluded between the Customer and such end customer.

(4) Deviating, conflicting, or supplementary general terms and conditions of the Customer shall not become part of the Contract unless the Provider expressly agrees to their validity in writing.

(5) Where the Services are provided together with hardware products supplied by the Provider, the sale and delivery of such products shall be governed exclusively:

  • (i) by the separately agreed written agreement between the parties, and in the absence thereof;
  • (ii) by these GTC, supplemented, insofar as these GTC do not contain a provision;
  • (iii) by the Provider's General Terms and Conditions (General Terms and Conditions of Herborner Pumpentechnik GmbH & Co KG).

2. Subject Matter of the Contract

(1) The Provider makes the "eThemis" Software available to the Customer for the term of the Contract in the form of a Software-as-a-Service (SaaS) model via the internet.

(2) The subject matter of the Contract is the Customer's ability to use the Software to document and manage workflows and processes in properties ("facilities") and to store the associated data.

(3) The Software is operated and/or hosted on the Provider's own servers or those of a data center commissioned by the Provider and is made accessible to the Customer via an internet connection.

(4) The Software constitutes a technical documentation and management system. It serves the structured recording, management, and archiving of operational data and processes. It does not replace any legal, technical, or operational advice regarding compliance with regulatory operator obligations.

3. Description of Services

(1) The Provider warrants the Customer access to the then-current version of the Software via the web portal and the mobile applications.

(2) The scope of functions, technical requirements, and system requirements result from the then-current service description or price list published on the Provider's website.

(3) The Provider is entitled to further develop and update the Software, provided that this does not significantly impair the Customer's contractual use. Any such change must be notified to the Customer by the Provider at least six weeks before its implementation. The Customer has no claim to a newer version of the originally provided and agreed Software.

(4) Where the Provider makes material new features or upgrades of the Software available, the Provider will offer these to the Customer, notifying the Customer of any additional costs involved.

4. Rights of Use

(1) The Provider grants the Customer a simple, non-exclusive, non-transferable right, limited to the term of the Contract, to use the Software for its own operational purposes.

(2) Any transfer, sublicensing, or other passing-on of the Software to third parties is prohibited unless expressly permitted in writing. The Provider hereby already permits sublicensing, transfer, or other passing-on to the extent necessary for the Customer's use of the Service. This includes, in particular, the use of subcontractors of the Customer. Such subcontractors must, however, be notified to the Provider in writing.

(3) The Customer is not entitled to reproduce, edit, translate, decompile, alter, or reverse-engineer the Software, except to the extent permitted by mandatory statutory provisions.

(4) The parties agree that the Provider may use the Customer's data for the maintenance, improvement, and further development of the Services, including the use of artificial intelligence.

The Provider is hereby granted the express, worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable, and transferable right to use and exploit this data without restriction, or to have it used and exploited by third parties.

The Provider may only pass on the data to other companies to the extent strictly necessary for the provision of the Services, maintenance, improvement, or further development of the Services.

Upon termination of these GTC or of the contractual relationship based thereon, the Provider is entitled to retain only non-personal or permanently anonymized data in its then-current form. The handling of personal data is governed exclusively by Section 9(4) and (5) and the Order Processing Agreement.

(5) Insofar as the data referred to in Section 4(4) constitutes personal data within the meaning of Art. 4 No. 1 GDPR, Section 4(4) shall not apply. Exclusively the provisions of the Order Processing Agreement and the applicable statutory data protection provisions shall apply. The use of personal data for development, optimization, or AI purposes is permitted only on the basis of permanently anonymized data.

5. Obligations of the Customer

(1) The Customer is obliged to keep its access credentials confidential and not to make them accessible to unauthorized third parties.

(2) The Customer shall ensure that its end devices meet the technical requirements and that internet access is available.

(3) The Customer undertakes to use the Software solely within the framework of applicable law and the contractual agreements.

(4) The Customer is responsible for the accuracy of the content of the data it enters.

For the provision of the Services, the Customer shall provide the data specified by the Provider in the service description on the web portal or in the app, or in the Contract. The Customer will transmit this data to the Provider via the technical interface specified in the service description.

(5) The Customer is obliged, at its own expense, to cooperate to the extent required for the provision of the Services, in particular to provide technical support to the extent required.

(6) The Customer is solely responsible for compliance with all statutory, regulatory, and normative requirements applicable to the operation of its facilities. This applies in particular to documentation, inspection, measurement, and record-keeping obligations in connection with the operation of installations, plants, or facilities.

6. Remuneration

(1) Where use of the Software is subject to a fee, the remuneration is based on the Provider's then-current price list.

(2) Payments are due immediately upon invoicing without deduction, unless otherwise agreed.

(3) If the Customer is in default of payment, the Provider is entitled to block access to the Software until the outstanding amounts have been settled.

(4) Remuneration is billed monthly, quarterly, or annually, depending on the agreed billing period.

7. Term and Termination

(1) The Agreement takes effect upon acceptance of the GTC pursuant to Section 1 as part of the Customer's registration and the Provider's activation of access to the first facility (Facility).

(2) Unless otherwise agreed, the Contract for paid Services is concluded for an indefinite term and may be terminated in writing by either party with three (3) months' notice to the end of the agreed billing period.

(3) The right to extraordinary termination for good cause remains unaffected. Good cause exists in particular where:

  • the Customer is in default of payment of at least two due fees despite a reminder and a reasonable grace period,
  • the Customer breaches material contractual obligations,
  • insolvency proceedings are opened over the assets of a party or are dismissed for insufficient assets.

8. Liability and Warranty

(1) The Provider is liable without limitation for damages resulting from injury to life, body, or health caused by an intentional or negligent breach of duty, as well as for damages caused by intent or gross negligence.

(2) In the case of slightly negligent breaches of duty, the Provider is liable only insofar as an essential contractual obligation ("cardinal obligation") has been breached. In such case, liability is limited to the typically foreseeable damage.

(3) Strict liability for initial defects is excluded.

(4) Unless otherwise agreed in a Service Level Agreement, the Provider does not provide any general warranty that the Software fully meets the Customer's specific requirements or that operation is possible without interruptions or errors.

(5) The warranty period is twelve (12) months from the initial provision of the Software. This does not apply in cases of intent or gross negligence, or to damages resulting from injury to life, body, or health.

(6) The Provider assumes no liability for data loss where the Customer has failed to carry out regular data backups within the scope of its responsibility. In such case, liability is limited to the expense required to restore the data as it would exist had proper data backups been performed. The Customer must maintain its own data backups (e.g., in PDF or Excel format).

(7) The Provider is not liable for indirect damages, loss of profit, or consequential damages.

(8) The Provider is not liable for damages, fines, regulatory measures, or other disadvantages resulting from the Customer's failure to comply with statutory or regulatory requirements in connection with the operation of its facilities. This applies in particular to incomplete, incorrect, or omitted documentation of measurements, inspections, or other operational processes, insofar as these are based on entries or configurations made by the Customer.

9. Data Protection and Confidentiality

(1) The Provider processes the Customer's personal data exclusively within the framework of applicable data protection laws. Details are set out in the then-current Privacy Policy.

(2) Where required, the parties shall enter into an Order Processing Agreement pursuant to Art. 28 GDPR.

(3) Both parties undertake to treat confidentially all information that becomes known to them in connection with this Contract.

(4) After termination of the Contract, personal data processed by the Provider on behalf of the Customer will be deleted after a transition period of three (3) months, unless statutory retention obligations apply or the Customer requests data transfer.

(5) Upon written request, and at the latest within ninety (90) calendar days after termination of the Contract, the Provider shall provide the Customer, free of charge, with a complete export of all data stored by the Customer in the system in a common, machine-readable format (in particular CSV, JSON, or XML).

Upon completion of the export, the Provider shall confirm to the Customer in writing the complete and irrevocable deletion of all of the Customer's personal data, unless statutory or regulatory retention obligations preclude this.

Where deletion from backup copies is not technically possible without damaging the backup, the Provider undertakes to use such backup copies exclusively for restoration in the event of a disaster or malfunction and not to actively access the personal data of the Customer contained therein.

The relevant backup copies will be overwritten or deleted as part of the regular backup cycle, at the latest within 90 days after termination of the Contract.

From the point in time at which the data export is provided, no further active processing of the Customer's personal data will be carried out by the Provider or by sub-processors engaged by the Provider.

10. Final Provisions

(1) Amendments or supplements to this Contract, including these GTC, require written form. This also applies to any waiver of this written-form requirement.

(2) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) Legally relevant declarations and notices to be made by the Customer to the Provider after conclusion of the Contract (e.g., setting of deadlines, terminations, notices of defects) must, to be effective, be made in writing or in text form (e.g., email).

(4) The exclusive place of jurisdiction for all disputes arising out of or in connection with this Contract is, to the extent legally permissible, the Provider's registered office.

(5) Should individual provisions of these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected.