General Terms and Conditions (GTC) of the company Vera Fimm Psytest Psychological Test Systems
These GTC apply to all contracts with the company Vera Fimm Psytest Psychological Test Systems (hereinafter "Psytest") as of: May 2018
For reasons of better readability and simplicity, only one – the common – gender form is used.
1. General information
1.1. For all business relations between Psytest and their clients only the following GTC shall prevail in their current version. Terms and conditions of the client are not recognised by Psytest insofar as they differ from the following GTC. This also applies insofar as terms and conditions of the client are not expressly contradicted. Provisions of a contract subsequently concluded between Psytest and a client proceed with the following provisions.
1.2. Contractual rights and obligations between Psytest and the client can be transferred only with the consent of the other party.
2. Individual contracts
The services to be rendered by Psytest as well as the project-specific arrangements, including compensation and any deadlines or time limits, shall be set in the relevant individual contracts, through offer and acceptance. By ordering the desired goods/services, the client makes a binding offer to conclude a contract. The acceptance by Psytest shall take place by written order confirmation in written form or by the sending of goods. With this acceptance, the contract comes into force.
3. Obligations of the client
3.1. Unless otherwise agreed in an individual contract, the client shall install the software themselves in accordance with the installation instructions contained in the user documentation.
3.2. Psytest distributes its products exclusively to trained graduate psychologists (Diplom, M.Sc. or B.Sc.) and other professional groups with appropriate expertise in psychological diagnostics. The client agrees to provide appropriate proof of expertise upon request. Tests distributed by Psytest concern psychological measurement instruments, which can only be performed or evaluated by qualified personnel or under their supervision. If the testing of Psytest is performed by others, the client is obliged to specify in the order, which graduate psychologist or appropriate qualified person will supervise its application. The interpretation of the test results may also only be carried out by qualified personnel. The client guarantees regarding the contractual relationship with Psytest in this respect also that they are not consumers within the meaning of § 13 BGB [German Civil Code].
3.3. The client will comply with the instructions contained in the user documentation for the operation of the hardware and software, in particular the system requirements.
3.4. The client is obliged before installation of the software and before commissioning of the EDV-system/hardware as well as in the subsequent period during the operation of the EDV-system/hardware to properly and regularly secure their data.
3.5. The client grants Psytest unfettered access to the objects of purchase for the purpose of correction of faults. At the client's request it can be agreed in an individual contract that remedial measures can also be carried out via remote maintenance by Psytest. In this case, the client will provide at their expense the appropriate technical arrangements.
3.6. The client will enable Psytest upon request to complete an inspection to verify whether the client is complying with the terms of the present contract with respect to the permitted use of the software, particularly with regard to the agreed maximum number of authorised users. To this end, they will share information with Psytest as well as access to all relevant documents and files. The client may demand that the inspection is only performed by a member of the tax and business consulting professionals who has been sworn to a professional duty of confidentiality or an independent expert sworn to secrecy, and that such a person is contractually obliged to the client only to surrender information required within the context of the inspection only to Psytest, if and to the extent necessary for the enforcement of claims concerning breach of licence. Inspections shall be carried out in principle not more frequently than once annually.
3.7. The enforcement of rights and claims for material defects requires that the client complies with the immediate obligation of inspection and reporting of complaints due to them in accordance with § 377 HGB ([Handelsgesetzbuch] Commercial Code). The client must report defects in writing immediately upon discovery with detailed specification of the deficiency. Reporting of defects do not affect any obligation for payment.
3.8. There are no rights of the client to enter the premises of Psytest for audit or inspection purposes, or to demand the surrender of documents or data from Psytest for this purpose.
4.1. Insofar as the services to be rendered by Psytest concern work performance, the client must accept them after being requested by Psytest. In case of refusal of acceptance by the client, Psytest is to be informed immediately, however no later than within a period of 14 calendar days from receipt of the refusal, about the specific error using a precise error log via mail, fax or in writing. Should no declaration of acceptance or error message be received within the aforementioned period by Psytest, the work shall be deemed accepted. The client may not refuse acceptance in case of minor defects.
4.2. The (partial) use in productive application and the full application of the work by the client are ranked equally in terms of acceptance.
4.3. In individual contracts that contain partial acceptances, Psytest must provide the appropriate partial services after each respective final completion for acceptance and request the client for acceptance. In addition, the provisions under 4.1. and 4.2. apply for the acceptance-dependant partial services accordingly.
4.4. Should Psytest ender services at the request of the client that are not based on a legal obligation (in particular, on liability for material defects), Psytest is entitled to charge the client for these services at the current daily rate of Psytest.
5. Material defects
5.1. For rights and claims of the client in case of material defects, the statutory provisions apply, as far as nothing is regulated otherwise in the following provisions of this No. 5 and No. 6.
5.2. A material defect exists if the hardware, the software or the user documentation does not exhibit the agreed quality. The agreed quality of the delivered hardware and software results finally from the supplied, and, if applicable, product description designated in the individual contract, the description of the functionalities contained in the user documentation, as well as the definition of the correct use set out in the individual contract.
The provided user documentation should enable the clients to operate the hardware and software properly. In the individual contract is agreed in which language, in what form and with what content the user documentation is made available to the client. The client is not entitled to user documentation of a more extensive quality.
5.3. When defects occur, Psytest shall provide on request of the client rectification of their choice through elimination of the defect (rectification) or through delivery of goods free of defects (replacement). The client may request within a reasonable period of time a type of rectification other than that chosen by Psytest, if the type of rectification chosen by Psytest is unacceptable. The rights of Psytest in accordance with §§ 439 para. 3, 275 para. 2 and 3 BGB remain unaffected thereby.
5.4. In case of defects of the software, Psytest is entitled to rectification by delivery of patches, updates or new programme version of the software. They are entitled to deliver a new programme version of the software, provided that it contains the same scope of function as the contracted version of the software and its adoption is reasonable for the client and does not lead to serious disadvantages. When delivering a new version, the client is obliged to return or delete the faulty software (§ 439 para. 4 BGB).
5.5. Psytest is entitled to indicate to the client temporary opportunities to circumvent faults and to remedy the defect later by delivering the next updates released by Psytest or new programme version of the software, as far as this is acceptable for the client. Should Psytest make use of this right, this is to be considered in determining the appropriateness of the period for rectification according to the following No. 5.7.
5.6. The client shall observe the instructions issued to them in the context of the rectification by telephone, in writing or electronically by Psytest. Psytest may give such instructions to the client, in particular with regard to the installation of the patches, updates or new versions of the software programme for the purpose of rectification, as well as for the identification of temporary possibilities to circumvent faults.
5.7. Should Psytest set a reasonable period for rectification and rectification fails within this period, the client shall be entitled to the further rights to reduction or, at their discretion, to cancel the contract, and in addition, if Psytest is responsible for the fault, in the context of the agreed limitation of liability, the claims for damages instead of performance or reimbursement of expenses within the meaning of § 284 BGB. The client is only entitled to withdrawal and assertion of damages in lieu of performance, however, if faults are substantial. The grace period, the notice of withdrawal and the assertion of damages in lieu of performance require written form for validity. A deadline set by the client is dispensable in the particular legal cases of §§ 281 para. 2, 323 para. 2, 440 BGB.
5.8. After expiry of the period of time set for rectification without results in accordance with above § 6 para. 7 the client must explain to Psytest in writing within a reasonable period whether they continue to require rectification or whether they claim the further rights mentioned in § 6 para. 7 sentence 1. If the client continues to require rectification and notifies Psytest of this immediately, they must grant Psytest a further reasonable period within which the client is not entitled to claim the rights named in No. 6.7. sentence 1. No. 6. 7. sentence 4 is not affected.
5.9. If the outcome of a fault analysis in connection with a defect reported by the client displays that claims or rights of the client do not exist due to defects, Psytest is entitled to charge the client for expenses incurred during the investigation in accordance with the current price list of Psytest, if the client recognised or negligently did not recognise that a defect is not present, but rather the cause of the error alleged by them originates from their own sphere of responsibility.
5.10. Psytest is not liable if adaptations or changes to the purchased items have been made by the client or by third parties authorised by the client, unless the client proves that the apparent defects are not due to this.
5.11. Claims of the client due to a defect come under the statute of limitations in 24 (twenty-four) months. The period of limitation begins after the delivery of the work or upon sales contracts at surrender of the subject of performance. In case of intentional or grossly negligent breach of duty, fraudulent concealment of a defect, in rem third party claims for restitution in the meaning of § 438 para. 1 No. 1 BGB, personal injury, claims under the Product Liability Act, as well as liability for assuming a quality guarantee, the statutory provisions for the statute of limitations apply; in case of acceptance of a guarantee, however, this applies only if the respective guarantee agreement does not state otherwise.
6. Defects of title
6.1. For rights and claims of the client in case of defects of title, the statutory provisions apply insofar as nothing otherwise is regulated in the following terms in this No. 6 and in No. 9.
6.2. A defect of title occurs if the rights for the contractual use of the subjects of performance are not effectively granted to the client.
6.3. If a third party asserts the violation of property rights through the software against the client, the client shall
(i) immediately notify Psytest of this in writing,
(ii) authorise Psytest to carry out the legal dispute and settlement negotiations with the third party at their own expense and as far as possible alone, and to undertake procedural acts only with the consent of Psytest and
(iii) provide Psytest with all reasonable assistance and furnish them with the relevant information and documents available to the client, as well as with the necessary power of attorney.
6.4. In the event that third party rights should be infringed by the software, Psytest shall provide rectification of their choice, so that
(i) the software is changed so that it no longer infringes rights, during which they provide a suitable performance and maintain the contractual features for the client, or
(ii) they acquire right of use for the client sufficient for the purposes of the contract to continue using the software, or
(iii) the software is replaced with other software that for the client is equivalent in respect of the agreed quality of the software, provides suitable performance and does not result in significant disadvantages for the client, or
(iv) a new programme version is delivered, which will not infringe the property rights of third parties when used in accordance with the contract, which includes the same scope of features as the previous version and which can be reasonably accepted by the client and which does not result in significant disadvantages for the client.
In the cases of sentence 1 alt. (ii) to (iv) the client is obliged to return or delete the software affected by defects of title (§ 439 para. 4 BGB).
6.5. In addition, the provisions on material defects in No. 5.6, 5.7, 5.8, 5.10 and 5.11 apply correspondingly in the presence of defects of title.
7. Remuneration, conditions of payment, retention of title
7.1. The client shall pay the remuneration agreed in the individual contract. Unless stipulated otherwise in an individual contract, the purchase price for the software application is additionally indicated for each user.
7.2. The cost of transportation as well as transport insurance requested by the client shall be borne by the client.
7.3. All prices are quoted in Euros plus the statutory VAT applicable at the time.
7.4. Unless stipulated otherwise in an individual contract, the agreed remuneration is due and payable within 14 days from receipt of the invoice and delivery of the objects of performance to the client.
7.5. Psytest shall retain ownership of the delivered hardware, of delivered data carriers if applicable as well as user documentation surrendered in printed form prior to full payment of the agreed remuneration. Should the ownership of Psytest expire due to an association or blending, the joint ownership shall be transferred according to the percentage value to Psytest.
7.6. The offsetting of claims by the client is only permitted if the claims of the client are undisputed or legally binding.
8. Rights of use
8.1. Upon any transfer of rights to use of software (standard software, client-specific custom software, updates, upgrades, releases etc. – including related documentation, information and materials) primarily the licence conditions of the software manufacturer apply.
8.2. The client shall comply with the licence conditions of the manufacturer of the software and ensure that the respective end user also complies with the licence agreement conditions.
8.3. Insofar as the individual contracts do not specify any deviating conditions, the client shall receive simple (non-exclusive) rights of use for work results. The remaining exclusive rights of use of the work results rest in principle with Psytest. Each licence of the performance matter is necessarily designed so that they can only be used with the dongle (security connector for copy protection) included in the scope of delivery. The client agrees to only use the respective licence according to specification. Insofar as the loss of one or more dongles occurs at the client's location, they are principally responsible for this. Psytest undertakes to make the number of substitute dongles available to the client, in accordance with their rights of use at the current valid price. The client must in this case notify Psytest of the loss in writing. They undertake to return a recovered dongle to Psytest for a refund and not to use this contrary to the completed user agreement.
8.4. Insofar as the subject matter of the individual contracts is the production or sale of software (this includes both standard and customised software), the client only acquires the right to use the software in machine readable form – object code – upon full payment of the appropriate remuneration. Insofar as a company has been granted rights of use, these rights – in the event that no other agreement has been made – refer to internal use at the headquarters of the company.
8.5. Insofar as the individual contracts do not specify any other conditions, the source programmes (source code) or the rights of use of these are not an object of performance and will not be transferred to the client.
8.6. During creation of the software, third-party software was partially integrated. This concerns both open-source-software as well as purchase software. The respective licence conditions of this software have been met by Psytest. The clients are required to submit to and observe the respective applicable licence conditions of the respective software manufacturer or rights holder. A list of the software used and a reference / link to the applicable licence conditions of the manufacturer / rights holder of third-party software is published or can be requested by Psytest as a respectively updated attachment to these general terms and conditions.
9. Limitations of liability
9.1. Limitations of liability are generally agreed in the individual contract between the parties individually. If no agreement is reached individually, Psytest – regardless of the legal reason – is liable for claims for damages or claims for reimbursement of unsuccessful expenses in the meaning of § 284 BGB in accordance with the following provisions in No. 9.2 to 9.7. Liability is, however, excluded if it is based on the fact that the current test manual, belonging to the respective software version, is not observed or the test conditions in accordance with the test manual have not been met. Furthermore, liability is excluded if the test or the interpretation of test results is not completed by professionally trained individuals (see section 3.2). Support staff may only be employed to perform the tests under the supervision of professionally trained personnel (see section 3.2). Evidence of the above requirements is incumbent upon the client. Psytest specifically emphasises that test results obtained from the software do not represent, let alone replace, a diagnosis. The test system only provides data for an analysis to be performed by psychologists.
9.2. Psytest is subject to unlimited liability according to the statutory provisions for damages resulting from injury to life, limb or health, for damages based on intent or gross negligence, as well as for damages under the scope of protection of a Psytest guarantee, quality or durability guarantee, provided that the respective guarantee agreement does not state otherwise.
9.3. For damages other than those referred to in No. 9.2, which are caused by a slightly negligent breach of essential contractual obligations (cardinal obligations), Psytest is liable under restriction for replacement of contractually typical foreseeable damage. Essential contractual obligations within the meaning of sentence 1 are such obligations, the breach of which threaten the fulfilment of the purpose of the contract, the fulfilment of which enable the proper implementation of the contract and compliance with which the client regularly relies upon.
9.4. Moreover, any further liability for damages other than those mentioned in No 9.2, which are caused by a slightly negligent breach of obligations other than those mentioned in No. 9.3, is excluded.
9.5. The liability under the Product Liability Act remains unaffected.
9.6. The aforementioned liability limitations also apply with regard to the personal liability of employees, agents, legal representatives and organs of Psytest.
9.7. If the client violates the obligation incumbent upon them for proper data protection, Psytest is subject to liability under the preceding provisions in the case of data loss limited to those damages that would have occurred even following proper, regular data protection by the client.
10.1 The client ensures that they will treat all information brought to their attention by Psytest, which has not been explicitly defined or declared as "open", as entrusted trade secrets (confidential information) and will not make it available to third parties. Unless and insofar as these were not or could not already be known or generally known beforehand without obligation of confidentiality, without the client being responsible for this or a third party lawfully communicated or ceded this to the client without confidentiality obligation or was released in writing by Psytest for publication. The client will process and use the provided confidential information solely for the fulfilment of each individual contract. The client undertakes in particular through the use of software as well as the inspection of the appropriate documentation, data, data structures and other documents, to treat nascent expertise and secret information confidentially in relation to third parties and to use it only for the purposes of contractually granted use and otherwise to keep it confidential. The client shall take all reasonable precautions to prevent unauthorised access by third parties or unauthorised inspection or use by third parties. The foregoing obligations shall not apply to such facts that are demonstrably obvious or belong to known state of the art technology. The client shall instruct employees and third parties, who legitimately have access to confidential information, about their confidentiality obligation and shall commit such persons in writing to confidentiality and use only to the aforementioned extent, provided that the respective persons are not already committed to confidentiality within the aforementioned context for another legal reason.
10.2. Psytest will comply with all applicable statutory data protection legislation (DSGVO; BDSG) and oblige their employees or other agents to comply with these conditions before commencement of their activities in accordance with § 5 BDSG. Please consider our data protection notice.
11. Final provisions
11.1. All agreements between the parties are included completely in these GTC and in the individual contract. Further agreements do not exist.
11.2. Psytest is authorised to publish the following information for promotional purposes: Client name, business, products delivered to the client, the type of service provided by Psytest.
11.3. Changes and/or additions to the contract require written form for validity. Cancellation of the requirement for written form shall also require the written form for validity.
11.4. Insofar as the client is a businessman, legal entity under public law or public law special fund, or an agreement regarding place of jurisdiction is permissible, the exclusive place of jurisdiction for any disputes arising from and in connection with this contract is the registered office of Psytest. Psytest is, however, also entitled at its discretion to bring legal action against the client at their general place of jurisdiction.
11.5. The contract is subject to the laws of the Federal Republic of Germany to the exclusion of legal norms that refer to another legal system; the application of the UN Sales Convention (CISG) is expressly excluded.
11.6. If any provision of these GTC is invalid, the validity of the remaining provisions of these GTC are unaffected if it can be assumed that the parties would have entered into the contract nonetheless. Instead of the invalid provision, a condition shall apply as agreed, which corresponds to the statutory regulations. If the parties have overlooked a point requiring regulation in the contractual provisions, the regulation that they would have agreed on upon consideration of mutual interests in the event of knowledge of the gap in the contract shall apply as agreed.
Additional licence conditions:
New customers are required to purchase a full licence.
The scope of delivery consists of an installation CD, a USB dongle, response buttons including adapter and manual.
For existing customers, the purchase of an additional licence is possible if it is to be used within the same department of an institution.
The purchase of an additional licence of TAP is possible if even a full or additional licence of TAP or TAP-M is present.
The purchase of an additional licence of TAP-M is possible if even a full or additional licence of TAP and TAP-M is present.
The purchase of an additional licence of KiTAP is possible if even a full or additional licence of KiTAP is present.
If an older DOS version of TAP (TAP 1.02, 1.5, 1.6, 1.7) is available, an upgrade to the current version can be purchased once for the price of the additional licence of TAP 2.3.1.
The content of the delivery corresponds to that of a full version. The DOS version remains in the possession of the customer.
If an older DOS version of TAP-M (TAP-K) is available, an upgrade to the current version can be purchased once at the price of the additional licence of TAP-M 1.3.2.
The content of the delivery corresponds to that of a full version. The DOS version remains in the possession of the customer.
The installation of all programmes is possible and allowed on any number of systems. Only the operation of the software requires the delivered USB dongle, therefore simultaneous use is dependent on the number of licences and the associated number of USB dongles.
The use of the programmes (both the main programme and the sub-tests) is neither limited in time nor to a certain number of programme starts.
The USB dongle represents the purchased licence for each programme.
A loss of the dongle is associated with high costs.