General terms and conditions
1. scope and validity
1. scope and validity
2 Performance and testing
2.1 The subject matter of an order may be: – elaboration of organizational concepts, global and detailed analyses, – creation of individual programs, – delivery of library (standard) programs, – acquisition of user authorizations for software products, – training of operating personnel, – cooperation in commissioning (conversion support), – telephone consulting, program maintenance, – creation of program carriers, – other services.
2.2 The development of individual organizational concepts and programs shall be carried out according to the type and scope of the binding information, documents and aids provided in full by the Customer. This shall also include practical test data as well as test facilities to a sufficient extent, which shall be made available by the Principal in a timely manner, during normal working hours and at its own expense. If the client is already working in live operation on the equipment provided for testing, the responsibility for securing the live data shall lie with the client.
2.3 The basis for the creation of individual programs shall be the written performance specification which the Contractor shall prepare or the Customer shall make available to it against calculation of the costs on the basis of the documents and information made available to it. This performance specification shall be checked by the Customer for correctness and completeness and shall be marked with its approval. Change requests occurring at a later date may lead to separate deadline and price agreements.
2.4 Individually created software or program adaptations require a program acceptance by the client for the respective program package at the latest 14 days after delivery. This is confirmed in a protocol by the client. (Check for correctness and completeness on the basis of the approved performance specification by means of the test data provided under point 2.2). If the Customer allows the period of 14 days to elapse without accepting the program, the delivered software shall be deemed to have been accepted as of the end date of the said period. Any defects that occur, i.e. deviations from the approved service description, must be sufficiently documented by the Customer and reported in writing to the Contractor, who shall endeavor to remedy the defects as quickly as possible. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance of the remedied defects shall be required after the defects have been remedied. The Customer shall not be entitled to refuse acceptance of software due to immaterial defects. The subject matter of the contract shall be software that is basically usable, since it is not possible according to the current state of the art to create software in such a way that it works error-free in all applications.
2.5 In the case of orders for library (standard) programs, the Customer confirms with the order that it is aware of the scope of performance of the ordered programs.
2.6 Should it become apparent in the course of the work that the execution of the order is actually or legally impossible, the Contractor shall be obliged to notify the Customer thereof immediately. In this case, each contracting party shall be entitled to withdraw from the order. The costs and expenses incurred for the Contractor’s activities up to that point shall be reimbursed by the Client.
2.7 Any shipment of program carriers, documentation and service descriptions shall be at the expense and risk of the client. Insurance shall only be provided at the request and expense of the Client.
Prices, taxes and fees
3.1 All prices shall be understood in the respective valid national currency of the Customer without value added tax. They shall only apply to the present order. The prices quoted are ex Contractor’s registered office or place of business. The costs of program
3.2 For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is rendered. Any deviations from the time expenditure on which the contract price is based shall be taken into account by the contractual partners.
3.3 Travel expenses shall be invoiced separately to the Client at the rates applicable at the time. Travel times shall be deemed to be working time.
4 Delivery date
4.1 The Contractor shall endeavor to meet the agreed dates of performance (completion) as closely as possible.
4.2 The targeted completion dates can only be met if the Customer provides all necessary information and documents in full, in particular the approved performance specification according to item 2.3, by the dates specified by the Contractor. The Contractor shall not be responsible for any delays in delivery and cost increases resulting from incorrect, incomplete or even subsequently changed information or documents provided and such delays shall not result in default on the part of the Contractor. Any additional costs resulting therefrom shall be borne by the Customer.
4.3 In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries and to issue partial invoices.
5.1 The invoices issued by the Contractor, including value added tax, shall be payable without any deductions and free of charges no later than 8 days after receipt of the invoice. For partial invoices, the terms of payment specified for the overall order shall apply analogously.
5.2 In the case of orders comprising several units (e.g. program or/and training, realization in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or service.
5.3 Compliance with the agreed payment dates shall constitute an essential condition for the performance of the delivery or fulfillment of the contract by the Contractor. In the event of late payment, interest on arrears of 1.5% per month shall be charged. In the event of non-compliance with two installments in the case of partial payments, the Contractor shall be entitled to cause a loss of dates to come into effect and to call in handed-over acceptances accordingly.
5.4 The Customer shall not be entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
6 Copyright, Use and Maintenance
6.1 The Principal shall be obliged to refrain from passing on the organizational elaborations, programs, service descriptions, etc. or copies derived therefrom to third parties, whether in return for payment or free of charge, without the Contractor’s written consent. In view of the fact that the programs and organizational services created are the intellectual property of the Contractor, the right to use the same, even after payment, shall apply exclusively for the Customer’s own purposes and only on the hardware designated in the contract. Any transfer, even in the course of dissolution of the company or bankruptcy, but also the short-term transfer for the production of reproductions, shall result in claims for damages, whereby in such a case full satisfaction shall be paid. Copyright notices may not be removed or altered. The licensee agrees to the passing on of his name as a reference. Delivered hardware shall only become the property of the customer after full payment.
6.2 After expiration of the contract, the program shall be deleted from all storage devices without further request and program data carriers together with manuals shall be returned to the Contractor.
6.3 The Customer agrees that the programs commissioned by it shall be included in the Contractor’s program library for general use by the Contractor’s sales organization in return for the fact that its programs could be developed more economically and more cost-effectively for it through the use of other experience and documentation than would have been the case without the use of such aids.
6.4 The maintenance contract relates exclusively to the software that is the subject matter of the contract and is performed exclusively by sending program data carriers. The services to be compensated by a lump-sum maintenance fee include the updating of the software, in particular if these are caused by essential requirements of the Customer; the elimination of errors, insofar as these can be reconstructed on the basis of the description by the Customer, as well as telephone consultation in questions of the use or application of the software product.
7. right of withdrawal
7.1 In the event that an agreed delivery time is exceeded due to the sole fault of the Contractor, the Customer shall be entitled to withdraw from the relevant software extract by means of a registered letter and a threat of refusal, if the agreed service is not provided in essential parts without the fault of the Customer even within the reasonable grace period. Force majeure, labor disputes, natural disasters and transport blockages shall release the Contractor from the obligation to deliver or allow it to reschedule the agreed delivery time.
7.2 Cancellations by the Customer shall only be possible with the written consent of the Contractor. If the Contractor agrees to a cancellation, he shall have the right to charge a cancellation fee according to the amount agreed in the individual order in addition to the services rendered and costs incurred.
7.3 The Contractor shall be entitled to terminate the contract with immediate effect if preliminary, composition or bankruptcy proceedings are instituted against the assets of the Customer or if the institution of such proceedings is rejected for lack of assets to cover costs.
7.4 The Maintenance Agreement may be terminated after a three-month notice period to the end of a calendar year/maintenance period. The termination must be made in writing./span>
8. Warranty, Maintenance, Modifications
8.1 Notices of defects shall only be valid if they concern identifiable and remediable defects and if they are documented in writing within 14 days after delivery of the agreed service or, in the case of individual software, after program acceptance in accordance with Section 2.4. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary for the examination and remedying of the defects.
8.2 Corrections and additions which prove necessary until the handover of the agreed service due to organizational and programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.
8.3 Costs for assistance, error diagnosis as well as error and fault elimination for which the Customer is responsible as well as other corrections, changes and additions shall be carried out by the Contractor against payment. This shall also apply to the elimination of defects if program changes, additions or other interventions have been made by the Customer itself or by third parties.
8.4 Furthermore, the Contractor shall not assume any warranty for errors, malfunctions or damage resulting from improper operation, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.
8.5 For programs which are subsequently modified by the Customer’s own programmers or third parties, any warranty by the Contractor shall lapse.
8.6 The Contractor shall not be liable for errors or damage caused by errors in the operating system, development tools, programs of third parties or subsequently installed programs.
The Contractor shall be liable for damages, insofar as intent or gross negligence can be proven against him, within the scope of the statutory provisions, but not exceeding € 5,000. Liability for slight negligence is excluded. Compensation for consequential damages and financial losses, savings not achieved, loss of interest and damages from third party claims against the client are excluded in all cases.
The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees who have worked on the realization of the orders, of the other contractual partner for the duration of the contract and 12 months after the termination of the contract. The contracting party violating this provision shall be obliged to pay damages in the amount of one year’s salary of the employee.
11. Data Protection, Secrecy
The Contractor shall oblige its employees to comply with the provisions of § 5 of the Federal Data Protection Act (for FRG: BDSG, for Austria: § 20 of the Data Protection Act).
Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall cooperate in partnership to find a provision that comes as close as possible to the invalid provisions.
13. final provisions
Soweit nicht anders vereinbart, gelten die zwischen Vollkaufleuten zur Anwendung kommenden gesetzlichen Bestimmungen nach deutschem Recht, auch dann, wenn der Auftrag im Ausland ausgeführt wird. Für eventuelle Streitigkeiten gilt die örtliche Zuständigkeit des sachlich zuständigen Gerichtes für den Geschäftssitz des Auftragnehmers als vereinbart. Für den Verkauf an Verbraucher im Sinne des Konsumentenschutzgesetzes gelten die vorstehenden Bestimmungen nur insoweit, als das Konsumentenschutzgesetz nicht zwingend andere Bestimmungen vorsieht. Änderungen und Ergänzungen des Vertrages und dieser Bedingungen bedürfen der Schriftform.