General Terms and Conditions of Grollmus München GmbH for the Factory Automation Studio Software

A. General Terms and Licensing Conditions

§ 1 Scope and Contractual Basis

These General Terms and License Conditions (hereinafter referred to as "GTC") apply to the provision and licensing of the Factory Automation Studio software (hereinafter referred to as "Software") by Grollmus München GmbH, Elsenheimerstraße 59, 80687 Munich (hereinafter referred to as "Provider") to customers. Customers are exclusively entrepreneurs within the meaning of § 14 of the German Civil Code (BGB).
The following terms in Part A of these GTC apply in particular to the permanent granting of usage rights to the Software (purchase license). If, in addition to the provision of the Software, the performance of services such as customization is agreed upon, the conditions in Part B of these GTC ("Special Conditions for the Provision of Services") shall apply additionally. The contractual conditions under which the Provider provides support services for the Software are covered in Part C ("Special Conditions for Support").
In the event of contradictions, the following hierarchy of contractual documents shall apply: Customer-specific agreements, particularly those in the Provider’s offer, take precedence over these GTC. Within these GTC, the Special Conditions in Parts B and C take precedence over the General Terms and License Conditions in Part A. The customer’s general contractual and purchasing terms shall not apply, even if the Provider delivers goods or services to the customer without expressly objecting to them.
For third-party software and open-source software provided by the Provider to the customer, the contractual and license terms of the respective manufacturer or supplier, or the applicable open-source license conditions, shall apply in the absence of other agreements. These may contain provisions differing from these GTC, particularly regarding the granting of usage rights, warranties, and liability. The Provider will inform the customer about the contractual and license conditions for such third-party software at the time of contract conclusion, e.g., in the offer. If the contractual and license conditions for third-party software contain gaps, the provisions of these GTC shall apply supplementarily.
These GTC, in their respective current version, shall also apply to all future contracts between the Provider and the customer, even if not expressly referenced again.

§ 2 Provision and Key Functional Scope of the Software

The Software, including integrated user documentation, is provided exclusively via download over the Internet. As user documentation, the Provider supplies an online help feature in both German and English. There is no entitlement to the provision of the Software’s source code.
The Software supports the customer in the automatic code generation for Siemens' Totally Integrated Automation Portal (TIA Portal), e.g., by automatically "wiring" existing standard function blocks available in corresponding software libraries within the TIA Portal. The Software thus functions as a system preceding the TIA Portal, merely assisting the customer in their program development.
Unless otherwise agreed upon by the contracting parties, the customer is responsible for installing the Software. The provision of services, such as customizing the Software and providing support services, requires a separate agreement.

§ 3 Customer Responsibility and Cooperation

The system requirements necessary for the smooth use of the Software by the customer are available on the Provider's website. The customer is solely responsible for meeting these system requirements. The Provider points out that it is not possible to verify and test the Software’s compatibility and functionality in all conceivable system environments. The Provider does not guarantee the future operability and release compatibility of the Software, e.g., in the event of hardware or operating system changes by the customer or modifications made by Siemens to the TIA Portal.
The Provider is not responsible for the TIA Portal, the customer’s access to the TIA Portal, or the program code created by the customer using the Software and its functionality. In this respect, the Provider does not provide any development or consulting services for the customer. The customer shall carefully test the programs created with the Software’s assistance before putting them into production.
Since the Software is merely a system preceding the TIA Portal and serves as a support tool for the customer’s program development, the customer remains responsible for the following tasks:
1. Ensuring access to the TIA Portal,
2. Defining program blocks,
3. Defining block interfaces,
4. Defining wiring rules,
5. Defining programming guidelines,
6. Transferring their program to the CPU,
7. Testing and verifying the program created with the Software before commissioning.
As part of their duty to mitigate damages, the customer must take appropriate precautions in case of IT system failures and data loss (e.g., through regular data backups and system checks). The customer is solely responsible for properly archiving and securing their data through regular and appropriate backup copies.

§ 4 Granting of Usage Rights to the Software

All copyrights, industrial property rights, and other protective rights to the Software (including all new versions and individual adaptations or additions created for the customer by the Provider) remain exclusively with the Provider or its licensors. The customer receives only the simple usage rights specified in the offer and in this § 4.
The Provider grants the customer a non-exclusive right to use the Software for the agreed or contractually assumed business purposes of the customer. Unless the offer specifies a time-limited usage right (rental license), the rights are granted indefinitely (purchase license) and are subject to full payment of the agreed license fee.
Unless restricted in the offer, the customer may use the Software with an unlimited number of users. Within the scope of contractual use, the customer may reproduce the Software as necessary and create required backup copies, which must be labeled accordingly. Copyright and other proprietary notices within the Software may not be removed or altered.
Sublicensing, renting, or any other temporary transfer of the Software to third parties, including SaaS, outsourcing, or data center operation, whether paid or free, requires the Provider’s prior written consent. Companies affiliated with the customer under §§ 15 et seq. of the German Stock Corporation Act (AktG) are not considered third parties.
Beyond the legally mandatory allowances—particularly those governed by § 69d of the German Copyright Act (UrhG)—the customer is not entitled to translate, modify, or adapt the Software. Disassembly and decompilation to achieve interoperability with other programs are only permitted within the strict limits of § 69e UrhG and if the Provider fails to provide the necessary information and documentation within a reasonable time after a written request from the customer.
The Provider is entitled to verify the customer’s compliance with the agreed usage scope using technical measures. Regular audits will not be conducted more than once per calendar year unless there is a concrete suspicion of license violations. The Provider undertakes to keep confidential any information obtained during audits that does not pertain to the Software. If an audit reveals that the customer has violated or exceeded their contractual usage rights, the customer shall bear the costs of the audit and must acquire additional licenses as necessary. Further claims, particularly for damages, remain reserved.

§ 5 Compensation and Payment Terms

The amount and due date of the agreed license fees are specified in the Provider’s offer. Unless otherwise stated in the offer, license fees shall be invoiced to the customer upon delivery of the Software.
All prices are exclusive of the applicable statutory value-added tax. Payments must be made by the customer within fourteen (14) calendar days from the invoice date without deduction.

§ 6 Warranty Rights

The Provider warrants that at the time of risk transfer, the Software has the properties and functionalities described in the user documentation and that there are no third-party rights preventing the contractual use of the Software.
Claims can only be made by the customer for defects that are reproducible or can be described comprehensibly by the customer. Functional impairments resulting from improper operation of the Software by the customer, the customer's system environment, incomplete, incorrect, or non-compliant data, or other circumstances within the customer's sphere of risk do not constitute a defect. Warranty claims require that the customer adheres to the system requirements and operating conditions specified by the Provider and does not modify the Software or use it contrary to contractual requirements (e.g., in a different system environment), unless the customer proves that the defect is unrelated to these circumstances.
The Provider shall remedy defects at its discretion either by delivering defect-free Software or by rectifying the defect. The defect rectification may initially involve the Provider providing reasonable alternatives to avoid or bypass the defect (workaround).
If the rectification of defects in the provided Software ultimately fails (at least two (2) attempts per defect) or if the Provider definitively refuses rectification, the customer may withdraw from the contract or reduce the fee. Given the complexity of the Software and the variety of possible defect causes, more than two (2) attempts at rectification may be reasonable and acceptable for the customer. A right of withdrawal does not exist in the case of an insignificant deviation of the Software from the agreed quality. In the case of a rental license, the customer is entitled to terminate the contract instead of withdrawing after rectification has failed. Compensation for damages and reimbursement of futile expenses due to a defect are granted by the Provider within the limits set forth in § 8.

§ 7 Intellectual Property Rights Infringements

The Provider guarantees that the Software provided to the customer is free from third-party intellectual property rights and indemnifies the customer from claims by third parties due to intellectual property rights infringements under the following conditions.
If third parties assert claims against the customer based on an alleged infringement of their intellectual property rights through the Software, the customer must immediately inform the Provider in writing and in detail. The Provider is entitled, but not obligated, to take over the legal or extrajudicial defense against the third party where legally possible. If the Provider exercises this right, the customer must provide reasonable, unpaid support in the defense. The customer shall not acknowledge any claims from third parties on their own initiative.
If the Software has a legal defect at the time of risk transfer, the Provider shall provide the customer with a legally unobstructed right to use the Software. Alternatively, the Provider may modify the affected Software or replace it with equivalent Software, provided that this is reasonable for the customer. If an infringement of third-party rights or legal dispute can be avoided by the customer using a more recent version of the Software provided by the Provider free of charge, the customer is obliged to adopt and use this version unless they can prove that such use is unreasonable.
The Provider shall indemnify the customer for all damages resulting from an infringement of intellectual property rights, subject to the liability limitations set forth in § 8, provided that such damages arise from a defect in the Software for which the Provider is responsible. Otherwise, the provisions of § 6 on material defects apply accordingly to claims due to legal defects.
The Provider shall not be liable if third-party claims due to alleged intellectual property rights infringements arise from the fact that the customer modified the Software or used it contrary to the contractual terms or for purposes other than those agreed upon.

§ 8 Liability

The Provider shall be liable for material and financial damages as well as for futile expenses, regardless of the legal grounds, only under the following conditions:
1. In cases of intent and gross negligence as well as for assumed guarantees, the Provider is fully liable.
2. In all other cases, only in the event of a breach of a fundamental contractual obligation (cardinal duty), without which the achievement of the contract’s purpose would be jeopardized and on which the customer regularly relies. In such cases, liability is limited to typical and foreseeable damages at the time of contract conclusion, capped at the maximum liability amount agreed upon in the offer.
The customer must take all reasonable and appropriate measures to prevent or mitigate damages, particularly by regularly backing up their programs and data. The Provider shall only be liable for data recovery costs within the limits of § 8 (1), provided that the customer ensured that lost data could be restored with reasonable effort from electronically stored backups.
The above liability limitations also apply in favor of the Provider’s legal representatives, vicarious agents, and employees.
Liability for damages resulting from injury to life, body, or health, as well as under the German Product Liability Act, remains unaffected by the above provisions.

§ 9 Confidentiality and Data Protection

The contracting parties undertake to maintain confidentiality regarding all trade and business secrets entrusted to them, made accessible to them, or otherwise known to them, as well as all other business relationships and operational matters. Such confidential information may only be used for the contractually intended purpose and may not be disclosed to third parties. The contracting parties shall grant access to confidential information only to employees and subcontractors who are bound by confidentiality and require access for contractual purposes.
Confidential information of the Provider particularly includes the Software in all code and expression forms, including documentation. The customer is prohibited from obtaining confidential information of the Provider through reverse engineering. Reverse engineering includes all actions such as observing, testing, examining, and disassembling to obtain confidential information. The application of legally mandatory copyright provisions remains unaffected.
The confidentiality obligation does not apply to confidential information that:
1. Was already known to the recipient without confidentiality obligations,
2. Is or becomes generally known without the recipient being responsible,
3. Is lawfully disclosed to the recipient by a third party without confidentiality obligations, or
4. Has been independently developed by the recipient.
Statutory confidentiality obligations (e.g., regarding trade secrets under the German Trade Secrets Act or personal data under the General Data Protection Regulation (GDPR)) remain unaffected by this § 9.
If the Provider gains access to personal data of the customer during service provision, the customer shall ensure compliance with applicable legal requirements for data transfer and processing by the Provider (and any subcontractors). The Provider shall obligate its employees in writing to treat personal data confidentially and to comply with the GDPR.
If the customer agrees, e.g., in the offer, to be named as a reference customer, the Provider may list the customer’s name in a reference list for promotional purposes and use the customer’s name, trademarks, logos, and other company identifiers in printed publications and online, including on the Provider’s website and in social media networks.

§ 10 Final Provisions

Any assignment or transfer of contractual rights and obligations by the customer to third parties requires the prior written consent of the Provider. § 354a of the German Commercial Code (HGB) remains unaffected.
The export of the Software by the customer or its use in an international environment, e.g., by foreign subsidiaries, may be subject to national and international export control regulations. In such cases, the customer is solely responsible for complying with any export restrictions and export requirements (e.g., obtaining official permits) and bears the associated costs. The customer shall indemnify the Provider against all costs and damages arising from culpable violations of export control regulations by the customer.
All amendments and additions to the contract must be made in writing to be effective. The requirement for the written form can only be waived in writing. The written form requirement under these GTC is also fulfilled by sending declarations via email.
The exclusive governing law is the law 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 the contract is Munich. However, the Provider has the right to bring legal action before any other national or international court with jurisdiction.
If individual provisions of these GTC or other contractual documents are or become invalid, or if the contract contains a regulatory gap, the validity of the remaining provisions shall remain unaffected. Instead of the invalid or missing provision, the contracting parties agree to a valid replacement provision that comes closest to what they economically intended at the time of contract conclusion.

B. Special Conditions for the Provision of Services

§ 1 Scope of the Special Conditions

These Special Conditions for the Provision of Services govern the provision of services by the Provider, such as software customization or consulting and support for the customer in the installation, configuration, adaptation, and integration of the provided Software. The General Terms and License Conditions in Part A of these GTC apply in addition.
The type and scope of services as well as the amount of compensation are specified in detail in the Provider’s offer. Technical or professional requirements from the customer become part of the contract only if the Provider expressly agrees to them in writing.

§ 2 Execution of Services

Unless otherwise agreed, the Provider performs all services as services (Dienstleistungen). In this case, the customer is responsible for project organization and for ensuring the professional, timely, and budget-compliant implementation of their project.
The Provider provides the agreed services according to the recognized state of the art and performs them carefully and through professionally qualified employees. If the Provider develops software for the customer or customizes it to the customer’s specifications, documentation (especially customization, development, and/or user documentation) is only created and provided if expressly agreed upon and for an additional fee.
The Provider is entitled to use employed staff or subcontractors (including freelancers) to provide the services. Regardless of the service location, these individuals are not subject to the customer's supervision or instructions and do not enter into an employment relationship with the customer. If the Provider names employees specifically, this is based on the current planning status at the time of contract conclusion. If a replacement of employees is necessary, the Provider will ensure a comparable qualification. The customer may request the replacement of employees for an important reason, but in this case, the customer bears the costs of onboarding a new employee.
Agreed deadlines and timeframes are non-binding unless expressly designated as binding in the Provider’s offer. Their compliance depends on the timely receipt of all necessary documents and information, as well as the timely provision of required contributions and cooperation by the customer.
The Provider may create records of discussions for clarifying or modifying the contractual service scope. These records become binding for both parties if the Provider provides them to the customer and the customer does not object in writing with justification within one (1) week of receipt. The Provider will inform the customer of this effect.

§ 3 Customer Cooperation

As an essential contractual obligation, the customer shall provide the cooperation described in these GTC as well as any additional cooperation required for service delivery, in a timely, proper, and complete manner, at no cost. Additional customer- and project-specific cooperation requirements may also be stated in the offer.
The customer shall provide complete, up-to-date, and consistent data, information, and documents as necessary, as well as the required IT infrastructure, and shall participate in specifications and testing.
If the contracting parties agree in the offer that service delivery shall follow an agile project methodology, both parties acknowledge that agile processes place high demands on customer involvement. The customer is particularly obligated to allocate sufficient personnel capacity and qualified employees to the project. These employees must have experience with agile project methods. The customer must ensure, through appropriate organizational measures, that their employees can make binding statements and decisions in project meetings.
If the Provider cannot perform services as agreed due to a lack of customer cooperation, delays are the customer's responsibility, and the Provider retains the right to compensation.

§ 4 Usage Rights to Individual Work Results

All copyrights, industrial property rights, and other protective rights to the legally protectable work results created for the customer, particularly customized and/or newly developed software (including planning, design, and concept documents, documentation, etc.), belong exclusively to the Provider, even if the work results were based on the customer’s professional specifications or involved customer participation.
Unless otherwise contractually agreed, the customer receives the same non-exclusive usage rights to the protectable work results provided by the Provider as they have for the underlying standard software, but only after full payment of the agreed fee. For customized and/or newly developed software, the usage rights apply exclusively to the binary or object code. The customer has no claim to receive the source code.

§ 5 Compensation and Payment Terms

Compensation for services is either at a fixed price or based on effort (possibly within an agreed budget) according to the daily or hourly rates specified in the offer. If the offer specifies a service volume (e.g., person-days or work hours), this is a non-binding estimate unless explicitly agreed otherwise.
A fixed price or budget shall be payable in stages according to the payment milestones defined in the offer. Any effort-based compensation will otherwise be invoiced monthly after service delivery, along with the Provider’s standard activity reports.
All prices are exclusive of applicable statutory VAT. Payments must be made by the customer within fourteen (14) calendar days from the invoice date without deduction.

§ 6 Acceptance; Warranty for Work Services

If acceptance is required by law or if the contracting parties explicitly agree to conduct an acceptance process, the parties shall carry out an acceptance procedure in accordance with the conditions set forth in paragraph 2.
Once the Provider has fully performed the agreed services, the Provider shall make the work results available for acceptance and notify the customer of their readiness for acceptance. The customer shall conduct the acceptance test within two (2) weeks and declare acceptance if no defects preventing acceptance have been identified during the acceptance test. Only defects that prevent the use of the work results or significantly impair their usability justify the rejection or termination of the acceptance test. Any remaining defects after acceptance shall be remedied within the scope of subsequent performance. Acceptance shall be deemed declared if the customer expresses approval of the work results in another manner, such as by putting them into productive use, by making contractual payments of the agreed compensation, or by failing to report defects that prevent acceptance in writing, with a detailed description, within two (2) weeks after receiving the Provider’s notification of acceptance readiness.
The Provider warrants that the work results delivered to the customer conform to the agreed service description. In all other respects, the provisions on defect liability in §§ 6 and 7 of Part A of the GTC shall apply accordingly to work services. The customer has no right to self-remedy.

§ 7 Contract Term and Termination

Service contracts without a fixed term may be terminated by either contracting party with four (4) weeks' notice to the end of a calendar quarter unless otherwise agreed in the offer. The termination of work contracts is subject to statutory provisions.
The right of both contracting parties to extraordinary termination of the contract for good cause remains unaffected. A good cause for the Provider exists, in particular, if the customer is in default with a significant portion of the due payment for more than four (4) weeks or if the customer otherwise violates essential contractual obligations and fails to remedy the violation within one (1) week after receiving a corresponding request from the Provider.
All terminations must be made in writing to be effective.

C. Special Conditions for the Provision of Support

§ 1 Scope of the Special Conditions

These Special Conditions for the Provision of Support govern the provision of support services by the Provider. The General Terms and License Conditions in Part A of these GTC apply in addition.
The software covered by the support, the type and scope of support services, and the compensation amount are specified in the Provider’s offer.

§ 2 Scope of Support Services

The subject of the support is the standard software provided to the customer by the Provider. If expressly agreed in the offer, individual customizations and extensions of the software created by the Provider for the customer as part of customization services are also covered by the support. The following support services are included in the flat-rate support fee:
1. Assistance with the installation of the software;
2. Analysis and resolution of software errors by providing bug fixes;
3. Support for the technical application of the software and for reporting errors.
All support services are provided remotely and during the Provider’s regular business hours (Monday to Friday from 9:00 AM to 4:00 PM CET, excluding public holidays in Bavaria as well as December 24 and 31 of each year).
The support is intended to assist the customer with technical issues related to the use of the software that the customer cannot resolve independently, as well as for reporting errors and other malfunctions. The following services are not part of the support and are not covered by the support fee:
1. The regular provision of updates or the provision of new modules or features of the software;
2. The analysis and resolution of malfunctions and errors not caused by the software, e.g., due to faulty IT infrastructure of the customer, defective or incompatible third-party software, incorrect, outdated, or incomplete data, faulty interfaces, system parameters changed by the customer, changes to the system environment, or other interventions by the customer in the software and/or software environment;
3. The resolution of issues and the consultation and support of the customer in connection with the TIA Portal or the customer’s end devices;
4. Any other technical and organizational consulting of the customer regarding the use of the software;
5. The implementation of legal or regulatory changes in the software.

§ 3 Compensation and Payment Terms

The amount and due date of the flat-rate annual support fee, as well as the payment terms, are specified in the Provider’s offer. Unless otherwise agreed in the offer, the support fee will be invoiced to the customer in full in advance at the beginning of each contract period.
All prices are exclusive of the applicable statutory value-added tax. Payments must be made by the customer within fourteen (14) calendar days from the invoice date without any deductions.
Without prejudice to other price adjustment rights, the Provider may adjust the support fee at the beginning of a new contract year, with a notice period of at least six (6) weeks, in line with its cost development (e.g., changes in salaries, rent, energy costs, etc.). To calculate and justify the cost development, the Provider may refer, for example, to the development of the consumer price index or the index of average wages for employees in the IT sector in Germany (or a similar labor cost index). The relevant benchmark is the index development since the last price adjustment (or since contract conclusion, if it is the first price adjustment).
If the fee increases by more than 10%, the customer may object to the increase in writing within two (2) weeks of its announcement. If the customer does not exercise their right to object, the price adjustment will take effect at the beginning of the next contract year. If the customer objects in due time, the fee remains unchanged; however, the Provider reserves the right to terminate the contract extraordinarily at the end of the current contract year. The Provider will inform the customer, along with the price increase announcement, about their right to object, the relevant deadline, and the consequences of inaction.

§ 4 Contract Term and Termination

The support contract begins upon acceptance of the software or the start of its productive use by the customer, whichever occurs first. It has an initial binding term of one (1) contract year and will automatically renew for an additional one (1) year unless terminated by either contracting party with a notice period of three (3) months before the end of the respective contract term.
The right of both contracting parties to extraordinary termination for good cause remains unaffected. A good cause for the Provider exists, in particular, if the customer is in default with a significant portion of the due payment for more than four (4) weeks or if the customer otherwise violates essential contractual obligations and fails to remedy the violation within the period set by the Provider, despite being requested to do so. If the Provider terminates the contract extraordinarily for a reason attributable to the customer, the Provider retains the right to full compensation until the end of the respective contract year.
Both contracting parties also have the right to extraordinary termination if Siemens discontinues the TIA Portal or makes substantial changes to the TIA Portal that make the use of the software impossible or significantly more difficult to the extent that the business foundation of the support contract is eliminated.
Any termination must be made in writing to be effective.