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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 contracts between Herborner Pumpentechnik GmbH & Co KG, Littau 3-5, 35745 Herborn ("Provider"), and its customers for the provision and use of the digital operating log "eThemis," including the web portal and mobile applications for iOS and Android ("Software"). The subject matter of these GTC is the temporary transfer of the Software and related services, also defined in more detail below, by the Provider to the Customer for the use of the Software in return for payment or free of charge ("Services").

(2) The contract for the services based on these GTC, including all amendments, supplementary or other agreements ("Contract") shall come into force upon one of the following actions:

  • Digital acceptance: The customer has accepted the Terms and Conditions by clicking on the corresponding tick box on the software provided for subscribing to the Services, thereby declaring that they have read, understood, and accepted the Terms and Conditions. The contractual relationship is then confirmed by the provider by means of a confirmation email sent to the customer's specified email address. Upon receipt of this confirmation and/or acceptance of the ordered services, the Terms and Conditions are deemed to have been accepted by the customer.

  • Written acceptance: A contract containing these GTC as an appendix has been signed in writing by the contracting parties (provider and customer).

(3) Subject to deviating provisions in the respective service description or the contract, the customer may, depending on the selected services, either:

(i) use them for their own internal purposes;

or

(ii) use them as a service provider for the analysis of customer data. In this case, the customer is entitled to pass on and make available to its end customer the results of the services provided by the provider on the basis of a contract concluded between the provider and the end customer.

(4) Any 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) If the services are provided together with hardware products supplied by the provider, the sale and delivery of these products shall take place exclusively

  • (i) on the basis of the separately agreed written agreement between the parties and, in the absence thereof;

  • (ii) on the basis of these General Terms and Conditions, and supplementing them insofar as these General Terms and Conditions do not contain any provisions;

  • (iii) on the basis of 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 shall make the "eThemis" software available to the Customer during 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 control procedures and processes in properties ("facilities") and to store the associated data.

(3) The software is operated and/or stored on the provider's own servers or on a data center commissioned by the provider and made available to the customer via an Internet connection.

(4) The Software constitutes a technical documentation and management tool designed to support the structured recording, administration and archiving of operational data and processes. The Software does not replace legal, technical or operational advice regarding regulatory obligations of facility operators.

3. Service description

(1) The provider guarantees the customer access to the latest version of the software via the web portal and mobile applications.

(2) The scope of functions, technical prerequisites, and system requirements are set out in the 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. The provider must notify the customer of any changes at least six weeks before they are implemented. The customer is not entitled to a newer version of the software originally provided and agreed upon.

(4) If the provider has significant new features or upgrades for the software available, the provider shall offer these to the customer, informing them of the associated additional costs.

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 their own operational purposes.

(2) The transfer, sublicensing, or other disclosure of the software to third parties is not permitted unless expressly authorized in writing. However, the provider hereby permits sublicensing, transfer, or other disclosure to the extent necessary for the customer to use the service. This includes, in particular, the use of the customer's subcontractors. However, these must be notified to the provider in writing.

(3) The customer is not entitled to reproduce, edit, translate, decompile, modify, or reverse engineer the software, unless 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 granted the express, worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable, and transferable right to use and exploit this data without restriction or to allow third parties to use and exploit it.

The provider is only permitted to pass on the data to other companies to the extent that this is absolutely necessary for the provision of the services, maintenance, improvement, or further development of the services.

In the event of termination of these General Terms and Conditions or the contractual relationship based on them by one of the parties, the provider is entitled to retain the data stored by it in its current form.

(5) Insofar as the data referred to in § 4.(4) is personal data, § 9 and the statutory provisions on data protection shall apply.

5. Obligations of the customer

(1) The customer is obliged to keep their access data secret and not to make it accessible to unauthorized third parties.

(2) The customer shall ensure that their end devices meet the technical requirements and that Internet access is available.

(3) The customer undertakes to use the software exclusively within the framework of the applicable laws and contractual agreements.

(4) The customer is responsible for the accuracy of the content of the data they enter.

For the provision of 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 shall transmit this data to the provider via the technical interface specified in the service description.

(5) The customer is obliged to cooperate at their own expense to the extent necessary for the provision of services, in particular to provide technical support to the extent necessary.

(6) The Customer shall be solely responsible for ensuring compliance with all statutory, regulatory and technical requirements applicable to the operation of its facilities. This includes, in particular, any obligations relating to documentation, inspections, measurements, monitoring or record-keeping required under applicable laws, regulations, industry standards or official orders.

6. Remuneration

(1) If the use of the software is subject to a fee, the remuneration shall be based on the provider's current price list.

(2) Unless otherwise agreed, payments are due immediately upon invoicing without deduction.

(3) If the customer defaults on payment, the provider is entitled to block access to the software until the outstanding claims have been settled.

(4) Unless expressly agreed otherwise, SaaS contracts shall have a minimum term of one (1) month.

(5) The contract can be canceled monthly at the end of the month with one (1) month's notice (if not expressly agreed otherwise).

7. Contract term and termination

(1) The contract shall enter into force upon acceptance of the General Terms and Conditions pursuant to § 1 in the context of the customer's registration and activation of access to the first object (facility) by the provider.

(2) Unless otherwise agreed, the contract for paid services is concluded for an indefinite period and can be terminated by either party in writing with one (1) month's notice to the end of the respective month. In the case of free services, the contract term is indefinite and the contract can be terminated immediately at any time.

(4) The right to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist in particular if:

  • the customer is in default of payment of at least two due fees despite a reminder and the setting of a reasonable deadline,

  • the customer violates essential contractual obligations,

  • insolvency proceedings are opened against the assets of a party or are dismissed for lack of assets.

8. Liability and warranty

(1) The provider shall be liable without limitation for damages resulting from injury to life, limb, or health based on an intentional or negligent breach of duty, as well as for damages based on intent or gross negligence.

(2) In the case of slightly negligent breaches of duty, the provider shall only be liable if an essential contractual obligation ("cardinal obligation") has been breached. In this case, liability shall be 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 assume any general warranty that the software will fully meet the specific requirements of the customer or that operation will be 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 in cases of damage resulting from injury to life, limb, or health.

(6) The provider accepts no liability for data loss if the customer has failed to perform regular data backups within the scope of their responsibility. In this case, liability is limited to the effort required to restore the data with proper data backup. The customer must maintain their own data backups (e.g., in PDF form or Excel data).

(7) The provider shall not be liable for indirect damage, loss of profit, or consequential damage.

(8) The Provider shall not be liable for any damages, administrative fines, regulatory sanctions or other disadvantages arising from the Customer’s failure to comply with statutory or regulatory requirements applicable to the operation of its facilities. This applies in particular to incomplete, incorrect or omitted documentation of measurements, inspections or operational records where such deficiencies result from customer inputs, configurations or operational decisions.

9. Data protection and confidentiality

(1) The provider processes the customer's personal data exclusively within the framework of the applicable data protection laws. Details can be found in the currently valid privacy policy.

(2) Where necessary, the parties shall conclude a contract for order processing in accordance with Art. 28 GDPR.

(3) Both parties undertake to treat all information disclosed to them within the scope of this contract as confidential.

(4) After the end of the contract, personal data that the provider has processed on behalf of the customer will be deleted after a transition period of three (3) months, unless there are legal retention obligations or the customer requests the transfer of data.

10. Final provisions

(1) Amendments or additions to this contract, including these General Terms and Conditions, must be made in writing. This also applies to the waiver of this written form requirement.

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

(3) Legally relevant declarations and notifications to be made by the customer to the provider after conclusion of the contract (e.g., setting deadlines, terminations, notifications of defects) must be made in writing or in text form (e.g., email) to be effective.

(4) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is, to the extent permitted by law, the registered office of the provider.

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