The following General Terms and Conditions ("GTCs") apply to all contracts concluded between you (the "Customer") and up2parts GmbH, (Register no. HRB 5103, Weiden in der Oberpfalz local court) with its registered office at Dr. Müller Strasse 26, 92637 Weiden in der Oberpfalz, Germany ("up2parts") under which your manufacturing company utilizes software solutions based on UP2PARTS CLOUD.
By ticking the confirmation box and clicking on the "Subscription" button, the Customer indicates that they agree to these conditions.
1. DEFINITIONS AND SCOPE
In these GTCs:
1.1 the following words and phrases have the following meanings, unless the context requires otherwise:
| “Subscription” | is a contract for the use of the following software products under the following types of contract:
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| “Documentation” | Any user manuals, online help, and software user guides on any media that relate to the use and operation of the Soft-ware, including the specification, as provided by up2parts or as made available to the Customer for the use of the Software. |
| “Export laws” | (a) Any laws of the United States of America, the United Kingdom, the European Union or any of its member states governing the export or import of goods or services from one of these jurisdictions to any other jurisdiction; (b) any controls administered by the U.S. Department of Commerce and/or the U.S. Department of State; and (c) any other export or import controls or restrictions imposed by any government, state, or regulator in any country in which the software or the documentation is to be used or made accessible, or imposed or accepted in a country in which the services are to be provided or supplied. |
| “License fee” | Refers to the fees to be paid by the Customer as stated in the order process on the website, either on invoices or in the price list. |
| “SaaS service” | The service of providing software over the Internet using a browser, without requiring the software to be installed locally. |
| “Sanction” | Any economic, financial, trade, or other sanctions, embargoes, import or export bans, prohibitions on the transfer of funds or assets or the provision of services, or equivalent measures imposed by a competent authority or by the laws of a state or a union of states. |
| “Subscription Button” | Designates the button used in the ordering process with the label "Purchase subscription" or "Start your trial", depending on the subscription. |
| "Software" | The software based on UP2PARTS CLOUD, which is de-scribed in more detail in the documentation, along with all software updates made available to the Customer by up2parts from time to time as part of these GTCs. |
| "Software Update" or "Update" | All updates and upgrades as well as revisions, new editions, and new versions of the software, and all patches or bug fixes that are released by up2parts for the software |
1.2 These GTCs apply exclusively. Any deviating or conflicting conditions do not apply unless they have been expressly agreed in writing. These GTCs apply only if the Customer is an entrepreneur (Section 14, German Civil Code) (Bürgerliches Gesetzbuch - BGB), a legal entity under public law, or a special fund under public law. The provision of SaaS services for consumers (Section 13 German Civil Code) is not regulated by these GTCs.
2. CONCLUSION OF THE CONTRACT
2.1 The Customer may purchase a subscription in their desired contractual form at www.up2parts.com. The Customer may remove the subscription completely from their shopping cart at any time. For subscriptions that may only be purchased together, the required supplementary subscriptions will be automatically added to the shopping cart. You do not need to enter payment information for free subscriptions. The order process can be canceled by closing the browser window. The Customer provides information about the company, name, mailing address, e-mail address, and phone number in the respective fields under the selected product. After it agrees to the GTCs and data protection provisions, the Customer will submit its binding offer to subscribe the software version of the SaaS services displayed in the order overview.
2.2 The Customer and up2parts enter into a contract as soon as the subscription order is confirmed in a separate e-mail. However, up2parts reserves the right to check the customer's contact details and to contact the Customer for verification purposes before concluding the contract. If the Customer is granted a trial version has expired, he will receive an offer to extend the paid SaaS services after the agreed trail period has expired. The subscription will be extended after the Customer provides the relevant payment information. The Customer should regularly check the Spam folder of their e-mail program.
2.3 The Customer receives the contractual provisions together with information about the ordered goods and/or ordered services, including these GTCs, by e-mail upon acceptance of the contract offer, or together with the notification thereof. up2parts will not save the contractual provisions for the Customer.
2.4 The Software is not provided in a physical copy or as a download; it is provided exclusively as a SaaS service.
3. SOFTWARE CHANGES and UPDATES
3.1 up2parts is entitled to change services, and in particular to update the Software in response to technical advances. up2parts will announce any significant change to the services at least one month in advance of the change concerned. If the changes are significant, the Customer may terminate the contract with a notice period of two weeks up to the date of the change. Significant changes are defined as changes that result in less functionality being available than was included in the previous version of the Software.
3.2 up2parts is not obligated
3.2.1 to provide Software Updates or to update
3.2.2 the Software or the Documentation.
3.3 up2parts assumes no obligation or warranty with regard to the frequency of Software Updates.
4. SUBSCRIPTION PERIOD
4.1 The subscription period is 12 months (hereinafter the "subscription period") and begins on the day of the order confirmation (the "subscription date"), which up2parts will send to the customer via e-mail.
4.2 Unless the subscription is canceled in accordance with Section 15, the subscription period will be automatically extended by an additional subscription period at the end of the current subscription period.
4.3 The Customer may increase the number of authorized users of the Software ("users") during the subscription period in accordance with the payment interval specified in Annex 1. If the number of users is increased during the current subscription period, the subscription period will be extended by 12 months from the point at which the order for the increased number of users is confirmed. The number of users may only be reduced by canceling the subscription in accordance with Section 15.
4.4 In deviation from Sections 4.1 to 4.3, the subscription period for a trial license to be agreed indivdually is limited to 30 days from the day of the subscription date, and cannot be extended. If the trial license is included in another license (the "main license"), the trial license will also be terminated automatically. The main license can be extended in accordance with the provisions of Section 4.1 and 4.2.
5. GRANTING OF RIGHTS
5.1 With effect as of the subscription date, and subject to the payment of the license fees in accordance with Section 6, up2parts grants the Customer the rights for the operation and execution of the software named in the title of the license only, and for the use of the associated documentation for the duration of the subscription period ("licensing" or "license").
5.2 Unless otherwise stipulated, the following terms apply to the granted license:
5.2.1 The license is limited, revocable, non-exclusive, and non-transferable (except where permitted by and in accordance with Section 17);
5.2.2 It may not be sub-licensed;
5.2.3 The Documentation is only licensed to the Customer to support the Customer's use of the Software.
5.3 Licensing is subject to the following obligations and restrictions:
5.3.1 The Customer must have a valid license for each user.
5.3.2 In order to use UP2PARTS CALCULATION or another subscription, the Customer must have a valid license for UP2PARTS CLOUD BASIC and a valid license for UP2PARTS CALCULATION and/or the required subscription for each user.
5.3.3 Each user must be registered by name in the Customer's account and must be an employee of the Customer. The Customer may remove existing users in order to replace them with new users. How-ever, doing so will not extend the subscription period.
5.3.4 Neither the Customer nor the user may copy the Software in whole or in part, or reproduce it in any way.
5.3.5 Except to the extent expressly permitted by law, neither the Customer nor the user may modify, change, adapt, correct errors, or interfere with the Software in any way, merge it with other data, programs, or systems or integrate it into other data or programs or systems, or attempt any of these actions.
5.3.6 Except to the extent expressly permitted by law, neither the Customer nor the user may decompile, reverse engineer, decode, and/or disassemble the Software. Furthermore, the Customer may not translate the Software into another computer language and/or attempt to do so.
5.3.7 Neither the Customer nor the user may allow any third party to access or use the Software.
5.3.8 The Customer or the user may not assign, renew, sub-license, rent, lease, sell, pledge, encumber, transfer, or otherwise dispose of the license granted hereby or the Software or Documentation granted through the license, or pretend or attempt to grant licenses to the Software or Documentation; and
5.3.9 The Customer or the user must notify up2parts as soon as it becomes aware of unauthorized access or use of the Software or the Documentation by a person.
5.4 The Customer is responsible for all acts and omissions of any user.
6. LICENSE FEE
6.1 The Customer pays up2parts the license fee based on the license metrics and subscription period set out in Annex 1. The UP2PARTS CALCULATION software may only be used subject to payment of the license fees shown in Annex 1. The use of the UP2PARTS CLOUD BASIC software is free of charge for the period specified in Annex 1.
6.2 The license fee is due at the beginning of each new calendar month. If the subscription starts after the beginning of the month, the prorated license fee will be added to the next monthly payment. Payment may be made on account..
6.3 If the subscription is extended, the license fee for the extended period is based on the provisions of Section 6.2.
6.4 In the event of an increase in the number of authorized users during the subscription period in accordance with Section 4.3, the license fee for the remaining days of the subscription period will be increased prorata to the corresponding higher license fee. This increased fee falls due immediately after the change has been confirmed. If the fee is increased after the beginning of the month, the prorated license fee is added to the next monthly payment. The Customer may not reduce the number of users during a subscription period unless otherwise agreed between the parties.
7. DOCUMENTATION
7.1 The Customer may only use the Documentation for the purpose of using the Software in accordance with these GTCs, and may not allow any other person to use the Documentation in any way.
7.2 The Customer may not copy or reproduce the Documentation, or any part thereof, in any way without the prior written consent of up2parts, with the exception that the Customer may copy the Documentation only insofar as this is reasonably necessary in connection with the permitted use of the Software by the Customer.
7.3 The Customer may not transmit the Documentation to other persons, except and to the extent that this is required by law, or where the Customer needs to share the Documentation with its officers, directors, and employees who require access to the Documentation in order to use the Software. This does not apply to documentation:
7.3.1 that already is or becomes publicly or generally available as of the time when such information was transmitted to the Customer (except as the result of a breach of the provisions listed under the prepreceding sections by the Customer);
7.3.2 that was already legally in the Customer's possession and was not subject to any confidentiality obligation; or
7.3.3 that the customer received from a third party who was authorized to transmit this documentation without restriction.
8. UPLOADING DATA
8.1 The Customer must ensure that it possesses all the necessary rights to all user content uploaded to the up2parts server.
8.2 up2parts may temporarily and immediately block any user if there is reasonable suspicion that the uploaded data is illegal and/or violates the rights of third parties. In particular, up2parts will be deemed to have a justified suspicion of illegal activity and/or breach of the law if courts, authorities, and/or other third parties inform up2parts of such activity. up2parts will immediately inform the Customer of the fact that user(s) have been blocked, and the reasons for doing so. The block on the user(s) concerned will be lifted as soon as the suspicion has been investigated and deemed unfounded.
8.3 up2parts may use the uploaded data to improve the Software. This right will lapse if the Customer removes the uploaded data or if it is erased as a result of the closure of the Customer's account.
9. AUDITING RIGHTS
9.1 up2parts and its commissioned auditors have the right to audit the access of the Customer and the user to the Software, or to monitor how it is used in order to confirm compliance with these terms and conditions.
9.2 Any such audit is subject to reasonable advance notice by up2parts, and up2parts agrees that it will not unreasonably interfere with the Customer's business activities.
9.3 The Customer will support up2parts in carrying out such an audit and, without prejudice to all other rights of up2parts, will remedy any and all breaches identified during the audit.
10. RIGHTS IN CASE OF DEFECTS
10.1 The Software provided by up2parts must match the Documentation provided by up2parts in all significant respects. The Documentation is not considered to be warrantied unless this has been agreed separately in writing. In the case of Updates, upgrades, and the delivery of new versions, in the event of any defects, the rights of the Customer are limited to the new features provided in the Update, upgrade, or new version as compared to the previous version.
10.2 up2parts will correct all defects by improving and/or replacing the Software. If the defect is not remedied by the initial deadline, and if the Customer has set a second deadline that up2parts has failed to meet, or if a reasonable number of attempts at rectification prove to be unsuccessful, the Customer may terminate the subscription and/or demand compensation at its discretion in accordance with the relevant legal requirements. The defect may also be remedied by delivering or installing a new program version or an interim solution. If the defect does not affect the functionality significantly or at all, up2parts may remedy the defect by delivering a new version or an update in the context of its version, update, and upgrade planning, excluding additional rights.
10.3 If the Customer is a merchant, the Customer is still obliged to pay the entire subscription fee in the event of a defect, unless the right to a fee reduction is undisputed or has been legally established by a court decision. Any claims to unjust enrichment remain unaffected.
10.4 Defects must be reported in writing with a comprehensible description of the symptoms of the error. If possible, these symptoms must be documented by written records, printouts, or other documents that substantiate the defects. The defect report should allow the defect to be reproduced. The Customer's legal duty to check for and report defects remains unaffected.
10.5 Any claims for damages are subject to the restrictions specified under Section 12.
10.6 up2parts may refuse to remedy the defect or to deliver a replacement until the Customer has paid up2parts the agreed fees, less an amount corresponding to the economic value of the defect.
10.7 For free subscriptions, rights in the event of defects are limited to the statutory liability for defects in accordance with Section 600 of the German Civil Code.
11. RIGHTS IN CASE OF DEFECTS OF TITLE
11.1 The Software provided by up2parts is free of third-party claims that could conflict with its use in accordance with the contract. The usual reservations of title are excluded.
11.2 If there are defects of title, up2parts may, at its own discretion, either (i) take legal measures to invalidate the rights of third parties impairing the use of the Software in accordance with the contract, or (ii) defend against the enforcement of such claims, or (iii) modify or replace the Software in such a way that it no longer violates the rights of third parties, provided and insofar as this does not significantly impair the warranted functionality of the Software.
11.3 If a solution in accordance with Section 11.2 cannot be reached within a reasonable period of time set by the Customer, the Customer may either cancel the subscription or demand compensation, subject to the relevant legal requirements.
11.4 In all other cases, Sections 10.3, 10.4, 10.5 and 10.6 apply accordingly.
12. LIABILITY AND DAMAGES
12.1 up2parts will only be held liable in accordance with the provisions set out in Sections 12.1.1 to 12.1.5
12.1.1 up2parts is liable without restriction for any damage that up2parts, its legal representatives or executive employees cause deliberately or as a result of gross negligence, as well as for damage caused deliberately by vicarious agents. In the event of gross negligence by other vicarious agents, up2parts is liable in accordance with the provisions for simple negligence under Section 12.1.5 below.
12.1.2 up2parts is liable without restriction for death, physical injury, or harm to health that can be traced back to intent or negligence on the part of up2parts, its legal representatives, or vicarious agents.
12.1.3 up2parts is liable for losses resulting from the absence of warranted characteristics up to the amount covered by the purpose of the warranty and that up2parts could have foreseen as of the time of the warranty.
12.1.4 up2parts is liable for product liability in accordance with the German Product Liability Act (Produkthaftungsgesetz).
12.1.5 up2parts is liable for losses caused by the breach of primary obligations by up2parts, its legal representatives, or vicarious agents. Primary obligations are defined as fundamental obligations that define the essence of the agreement, that were decisive for the conclusion of the agreement, and that the Customer may expect to be fulfilled. If up2parts breaches its major obligations through simple negligence, its resulting liability is limited to the amount that up2parts could have foreseen as of the time when the service was provided.
12.2 up2parts is only liable for data loss up to the amount of the typical recovery costs that would have been incurred if data had been backed up properly and regularly.
12.3 Any further liability on the part of up2parts is fundamentally excluded. In particular, up2parts is not liable for initial defects.
13. DATA PROTECTION
13.1 Personal data is used in accordance with the provisions of the Data Protection Notice, which can be accessed at https://www.up2parts.com/en/privacy-policy.
13.2 up2parts processes personal data on behalf of the Customer. Annex 2 regulates the processing of personal data and forms an integral part of these GTCs.
14. EXPORT CONTROL
The customer assures to comply with all export regulations and sanctions. In particular, the customer will obtain any license required for uploading the data.
15. TERMINATION
15.1 Either party may cancel the subscription prior to the end of the subscription period by giving notice of four weeks. The Customer may indicate its desire to cancel the subscription by e-mailing support@up2parts.com. The e-mail must including a declaration by the Customer to this effect as well as the Customer's contact details and contractual information. In the event such an indication is received, the subscription period will not be extended. The Customer may use the Software until the end of the subscription period.
15.2 If a party:
15.2.1 materially breaches these GTCs in a way that cannot be remedied, or
15.2.2 commits a material breach of these GTCs that can be remedied, but fails to remedy the breach within 14 days of a written notice in accordance with Section 15.1, stating the nature of the breach and that the other party demands it be remedied,
then the other party may terminate the subscription by providing the party in breach of contract with written notice of termination, observing a notice period of at least 14 days, provided that the notice of termination is given within six months of the date on which the material breach of contract occurred or within six months of when the terminating party becomes aware of it, whichever is the later.
15.3 Subject to Section 15.4, and if the Customer fails to make the subscription payment due to up2parts within 14 days of it falling due, up2parts may cancel the subscription by giving the Customer written notice of at least 7 days.
15.4 The right to termination granted under Section 15.3 does not arise in the event of non-payment of an owed sum, as long as this sum is and remains the subject of dispute conducted in good faith between the Customer and up2parts (and where any sum that is not subject to a dispute conducted in good faith has been paid in accordance with these GTCs), as well as for a period of 7 days after the settlement of such a dispute.
15.5 up2parts may terminate the subscription with immediate effect by notifying the Customer accordingly, if:
15.5.1 a sanction is imposed against a country or territory from which the Software, Documentation, or services are exported or provided, or into which the Software, Documentation or services are imported, or in which the Software, Documents or services are received;
15.5.2 a sanction is imposed against the Customer or a user or a country in which the Customer or a user is registered or operates;
15.5.3 up2parts has legitimate reason to believe that the continued licensing of the Software or the performance of one of the services breaches, or would breach, an export law on sanctions; or
15.5.4 up2parts has legitimate reason to believe that the Customer or a user has breached an export law or law on sanctions or is likely to breach them.
15.6 The parties acknowledge and agree that if a party is entitled at any time to exercise more than one right of termination under these GTCs, that party may, at its sole discretion, choose which right or rights of termination (if any) it wishes to exercise.
16. CONSEQUENCES OF THE EXPIRATION OF THE SUBSCRIPTION PERIOD AND TERMINATION
16.1 After the termination date:
16.1.1 the following provisions remain in effect: Sections 1, 9, 12, 13, 16, 19, 21 together with all other provisions, express or implied, continue to be effective after the subscription has expired or terminated; and
16.1.2 all other rights and obligations end with immediate effect (including, but not limited to the rights granted under Section 5), without prejudice to any and all rights, obligations, claims (including claims for damages due to breach of contract), and liabilities that have arisen before the termination date.
16.2 up2parts must erase or return all copies of all data belonging to the Customer within 30 days of the termination date, unless up2parts is required to keep copies for regulatory purposes; in this case, the Customer bears the burden of proof.
17. ASSIGNMENT
17.1 With the exception of monetary claims, the Customer may not assign, transfer, encumber, manage in trust for any person or otherwise trade with its rights arising from these GTCs.
17.2 up2parts may, at its sole discretion, assign, transfer, invoice, manage in trust for each person, and trade the rights arising from these GTCs in any other way.
18. SUBCONTRACTING
18.1 up2parts may subcontract any of the obligations under these GTCs. up2parts shall ensure that such a subcontractor is bound by contractual conditions that essentially correspond to those applicable to the obligations of up2parts within the framework of these GTCs.
19. AMENDMENTS TO CONDITIONS
19.1 up2parts may amend these GTCs. up2parts shall inform the Customer of all and all upcoming changes. If the Customer does not reject these proposed amendments within 6 (six) weeks after receiving notice from up2parts, the amendments will take effect and become binding between the parties as of the beginning of the next extended subscription period.
19.2 The parties' rights of termination remain unaffected.
19.3 When providing notice about upcoming amendments, up2parts will also inform the Customer about the Customer's right to reject the amendments and the consequences of failure to act.
20. SEVERABILITY CLAUSE
If any provision of these GTCs is found to be unlawful, invalid, void, or unenforceable by a court or an institution or an authority of the competent jurisdiction, the provision concerned will be deemed to be severed from these GTCs. This will have no effect on the validity of the other provisions of these GTCs, which will remain in full force and effect.
21. APPLICABLE LAW AND JURISDICTION
21.1 These GTCs and all non-contractual obligations arising from or in connection with these GTCs are subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
21.2 The courts having jurisdiction over the location of up2parts' registered office have exclusive jurisdiction over all disputes arising from and in connection with these GTCs.