General Terms and Conditions
GENERAL TERMS AND CONDITIONS
I. Subject Matter of the Contract
CERTAIN GmbH (hereinafter referred to as "CERTAIN") provides its customers with cloud-based software for use. The CERTAIN application guides the customer online through the CE marking process, from standards research and risk assessment to the creation of documentation in accordance with current EU machine safety regulations. The provisions of these General Terms and Conditions (GTC) apply accordingly to all other software applications developed by CERTAIN.
II. Scope of Application; Conclusion of Contract
These General Terms and Conditions apply to all orders placed by the customer online with CERTAIN and which relate to CERTAIN or other software applications mentioned above (in accordance with Section I, "Contract Content"). CERTAIN and all other CERTAIN applications are exclusively intended for entrepreneurs within the meaning of § 14 BGB (German Civil Code). All deliveries, services, and offers from CERTAIN are made exclusively on the basis of these General Terms and Conditions. The GTC therefore also apply to all future business relationships with companies, even if they are not expressly agreed upon again. Any General Terms and Conditions of the customer that contradict these GTC are hereby rejected. The contract language is exclusively German. The currently valid General Terms and Conditions can be accessed and printed from the website certain-cloud.com. The presentation of our product on our website does not constitute a binding offer for the conclusion of a contract. Rather, it is a non-binding invitation to the customer to submit an offer. By clicking the "Order now with obligation to pay" button, the customer submits a binding offer to conclude a contract. After receipt of the offer, the customer receives an automatically generated email confirming receipt of the order (order confirmation). This order confirmation does not yet constitute acceptance of the offer. A contract is concluded when CERTAIN expressly declares acceptance of the offer or activates the module booked by the customer for use.
III. CERTAIN - CERTAIN's Services
CERTAIN is a cloud-based software from CERTAIN GmbH that enables menu-driven execution of the CE certification process in accordance with current EU machine safety regulations. CERTAIN provides a technical tool for:
- researching standards,
- the identification and analysis of hazards,
- the definition of appropriate measures,
- the creation of an operating manual
- the creation of technical documentation,
- the creation of the machine type plate including CE marking.
Based on a carefully structured list of exclusion and selection questions, customers are presented with a selection of EU directives and harmonized European standards that may be relevant for the CE certification process. CERTAIN does not replace professional or legal advice. CERTAIN provides neither professional nor legal consulting services. Due to possible misunderstandings, ambiguities, or errors in official gazettes, such as translation errors, inaccuracies or incompleteness may occur in the list. The provided application enables the customer to perform a risk assessment in accordance with legal requirements. All information entered by the customer for the risk assessment originates from the customer themselves and cannot be checked by CERTAIN for accuracy or completeness. The customer is responsible for the accuracy and completeness of the entered information. For communication and data exchange with the customer, CERTAIN provides a website through which the customer receives secure, password-less access to CERTAIN. The servers used by CERTAIN for this purpose are located in data centers and are connected to the internet via a complex system architecture. The data centers are located in Germany. CERTAIN enables a download function for documentation created with CERTAIN in PDF format. Whether and to what extent the customer makes use of this function, particularly for fulfilling documentation and retention obligations, is solely at the customer's discretion. The average annual availability of the website and data connections up to the internet demarcation point is at least 99%. CERTAIN points out that impairments or disruptions to the services provided may occur that are beyond CERTAIN's control, such as unauthorized actions by third parties or force majeure. The hardware, software, or technical infrastructure used by the customer may negatively impact CERTAIN's performance. CERTAIN performs regular maintenance on the systems used to ensure network security, network integrity, service interoperability, and data protection. Where possible, this maintenance will be carried out during periods of low utilization. If longer service restrictions are necessary, CERTAIN will inform the customer in advance about the nature, scope, and duration of the impairment. CERTAIN reserves the right to change technical standards and security features if these changes serve to improve security, are legally or officially required, or do not entail significant disadvantages for the customer.
IV. Customer Obligations
The customer is obliged to prevent unauthorized persons from accessing the website. Furthermore, the customer is responsible for ensuring that no viruses from their systems reach CERTAIN's systems. They must not bypass or deactivate any security measures implemented by CERTAIN. Any disruptions must be reported immediately. The customer may only modify content in CERTAIN if expressly permitted by CERTAIN. If the customer uploads documents, particularly for technical documentation, to the CERTAIN application, they are obliged not to infringe any copyrights or third-party rights. If CERTAIN is subjected to claims by third parties due to an actual or alleged infringement committed by the customer, the customer shall indemnify CERTAIN from all third-party claims upon request. This also includes reasonable costs for legal defense.
V. Remuneration; Billing
The customer undertakes to pay CERTAIN the agreed remuneration for the services according to Section I. The remuneration for the use of CERTAIN and any additional services from CERTAIN is expressly based on the price list valid at the time of contract conclusion and the selected CERTAIN license model. All prices are exclusive of the applicable statutory value-added tax. Unless otherwise agreed, remuneration will be billed in advance. Unless otherwise agreed, invoicing will be done electronically. This service is free of charge. Unless otherwise agreed, the agreed remuneration is due for payment without deductions within 14 days of receipt of an invoice. The customer must raise any objections to the invoice with CERTAIN within 14 days of receipt. After the expiry of the aforementioned period, the billing is deemed approved by the customer. CERTAIN is entitled, for the first time after 6 months from the conclusion of the contract, to increase the remuneration for the services rendered at its reasonable discretion (in accordance with § 315 BGB). Further increases in accordance with § 315 BGB are possible if the last price increase was at least 6 months ago. Fees are due before the start of the respective billing period, either monthly or annually, depending on the model. Access to the booked license will only be activated upon receipt of the first payment. Customer payments are processed by a payment service provider. In case of customer payment default, CERTAIN is entitled, irrespective of other rights, to refuse further provision of services and to suspend the services. If the customer defaults on payment, they are obliged to pay statutory default interest at a rate of 9 percentage points above the base interest rate. For each reminder sent after the occurrence of default, CERTAIN may charge a reminder fee of €2.50, unless a lower or higher damage is proven. Offsetting customer claims arising from this contract is only permissible with claims against CERTAIN that are undisputed or have been legally established.
VI. Term, Termination
The contract between the parties is concluded for an indefinite period. The notice period for CERTAIN depends on the respective license model booked. Unless otherwise agreed, termination is possible with a four-week notice period to the end of the term. If the customer fails to pay a substantial part of the fees for two consecutive months, CERTAIN may terminate the contract without notice for good cause. Good cause for CERTAIN also exists if insolvency proceedings are filed against the customer's assets, opened, or rejected due to insufficient assets. The termination rights according to § 314 BGB remain unaffected. CERTAIN will maintain the customer account for security purposes after the contract ends, unless objected to.
VII. Usage Rights
CERTAIN grants the customer a simple, non-exclusive, and geographically unrestricted right to use the software in the state agreed upon at the time of contract conclusion. The right of use is limited to the duration of the contract and also includes the use of new available versions. The customer is not entitled to exhibit, publicly reproduce, in particular make publicly accessible, modify, translate, decompile, or otherwise alter the software. The customer's rights under Sections 69d para. 3, 69e of the German Copyright Act (UrhG) remain unaffected. CERTAIN is entitled to use the software, including new versions, as well as general know-how, experience, methods, and procedures developed in connection with the contract, for other purposes (e.g., making it available to third parties, as open-source software, etc.).
VIII. Material Defects
The parties understand a material defect in software as follows: A material defect is a condition where the software, in its available version and under contractual use, fails to perform a function specified in the service description or provided documentation, for reasons attributable to CERTAIN, and this significantly affects the software's suitability for its agreed-upon use. No defect exists, in particular, if (i) the problem was caused by improper installation or handling of the software by the customer or third parties and/or if the software is used under system requirements not specified in the service description or documentation, or (ii) the problem is caused by other reasons not within CERTAIN's sphere of responsibility. If a defect exists, CERTAIN is obligated to remedy it. CERTAIN shall remedy the defect, at its discretion, by providing an updated version or a reasonable workaround that circumvents the defect. CERTAIN is entitled to attempt to remedy the defect at least twice. Warranties are only effective if explicitly designated as "warranty" in writing. Claims for damages due to defects are available to the customer within the liability limits agreed upon in Section XI. If, during the rectification of a reported defect, it turns out that no defect exists or that CERTAIN is not responsible for the defect, CERTAIN is entitled to reimbursement for the costs and expenses incurred for the processing.
IX. Liability and Warranty
In cases of intentional or grossly negligent conduct, injury to life, body, or health, fraudulent concealment of a defect in goods or title, or the written assumption of a guarantee for the quality or durability of the services provided under the contract, CERTAIN shall be liable without limitation as to amount in accordance with the Product Liability Act. If essential contractual obligations are breached due to negligence, CERTAIN's liability shall be limited to the foreseeable damage typically associated with the contract. Essential contractual obligations are those whose fulfillment enables the proper execution of the contract and on whose compliance the customer relies and may reasonably rely. Liability for simple negligence outside the breach of essential contractual obligations, as well as for loss of profit, is excluded, unless one of the cases mentioned in paragraph 1 of this clause applies. Liability under the Product Liability Act remains unaffected. The foregoing exclusions of liability also apply to actions of CERTAIN's legal representatives, vicarious agents, and subcontractors. Claims for damages shall become time-barred within one year. With regard to the commencement of the limitation period, Section 199 (1) of the German Civil Code shall apply. In the event of force majeure preventing CERTAIN from (timely) performance of a service, CERTAIN shall be released from its performance obligations for the duration affected and for an additional reasonable period to resume services. The affected deadlines shall be postponed accordingly. Force majeure events include, in particular, events beyond CERTAIN's control such as fire, explosions, floods, war, blockades, embargoes, industrial disputes, pandemics, and official measures related to the aforementioned events. Claims for damages are excluded in this case. The functionality and availability of software, hardware, and other components provided by the customer, as well as third-party services, are not the responsibility of CERTAIN. Likewise, CERTAIN is not responsible for the interoperability of the CERTAIN software with the customer's IT systems, provided that the system requirements specified by CERTAIN are not met. The interoperability of the CERTAIN software with hardware and software obtained from third parties or otherwise used is only expected if expressly agreed otherwise.
X. Subcontractors
CERTAIN may have services performed by subcontractors or procure them from subcontractors. The fault of a subcontractor is equivalent to the fault of CERTAIN (Section 278 Sentence 1 German Civil Code). If the provision of services involves data processing in accordance with Art. 28 GDPR, we will observe the regulations in the Data Processing Agreement.
XI. Confidentiality; Data Protection; DPA
The contracting parties undertake to treat all information and documents received or becoming known during the performance of the contract, which are legally protected, contain business or trade secrets, or are designated as confidential, as confidential even after the termination of the contract, unless they are publicly known without violating confidentiality obligations. The parties shall store and secure these documents in such a way that access by third parties is excluded. The parties shall comply with the applicable data protection regulations and undertake to oblige their employees, in connection with the contract and its performance, to observe data secrecy in accordance with Section 5 of the German Federal Data Protection Act (BDSG). The processing of personal data by CERTAIN is carried out in accordance with Art. 28 GDPR on the basis of a Data Processing Agreement (DPA). The DPA, the provisions for data processing, and the technical and organizational measures (TOM) are fully listed after these GTC and are available for download as a PDF. By agreeing to the GTC and actively using our software, you simultaneously conclude the DPA with CERTAIN. A separate signature is not required. The agreement is concluded legally and effectively in digital form.
XII. Final Provisions
All disputes between the parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising in connection with these General Terms and Conditions shall be the location of CERTAIN. Amendments or additions to these GTC or the underlying contract must be made in writing (Section 126b German Civil Code). The customer's general terms and conditions shall only become part of the contract if CERTAIN has expressly agreed to them in writing. The customer is not entitled to transfer this agreement, in whole or in part, to third parties or to authorize third parties to exercise the associated rights and obligations. CERTAIN has the right to transfer this agreement, including all rights and obligations, to a company within the CERTAIN group. The transfer shall become effective 28 days after notification to the customer. In the event of a transfer of the contract to another company, the customer shall have a special right of termination, which must be exercised within two weeks of notification. CERTAIN may amend or supplement these General Terms and Conditions at any time. The customer will be notified of the amendments or additions by email at least six weeks before they come into effect. If the customer does not agree with the changes, they may object in writing within one week of the dispatch of the proposed amendments or additions. If the customer does not object, the amendments or additions to the General Terms and Conditions shall be deemed accepted. CERTAIN will specifically draw the customer's attention to the significance of their conduct when announcing the amendment or addition to the GTC. Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.
Data Processing Agreement
Data Processing Agreement Specifications