A. Contractual Basis
1. Validity
These terms of business are valid for all contractual dealings and pre-contractual activities with our customers, regardless of the type and extent of service within the scope of current and future business relations.
2. Exclusivity
Our terms of business are valid exclusively. Other contradictory terms from our contractual partners or third parties are only valid if the company expressly agrees to their validity in writing.
If you are not in agreement with this, you should inform the company immediately in writing. In this case, we reserve the right to withdraw our goods and services, without any form of claim against us becoming liable. With this we expressly reject any routine reference to your own terms of business.
3. Contract Completion and Written Form
In principle, we only enter a contractual commitment if the type and extent of service and consideration has been confirmed in writing by both parties. Changes and additions made verbally at a later stage only become valid if they are subsequently confirmed in writing. The same is valid for all declarations of intent, in particular in respect of complaints, warnings and claims within the framework of the contractual dealings.
Both parties must notify contractual penalties in writing. This clause can only be cancelled by express written agreement.
B. Transfer of Software
4. Licence and Extent of Use
The company, as the legal owner, transfers to the customer the non-transferable, non-exclusive right to use the software specified in the order and/or invoice and the documentation for an indefinite period.
Use according to contract is defined as follows: the import of instructions or data for a programme by input at a terminal or transfer from memory drives or data carriers to the agreed hardware for the purpose of processing, as well as creating a data backup copy in machine-readable form.
Operating range, performance capability and all other specific programme properties are determined solely from the user manual included with the programme.
The customer acquires the right to use the software on as many workstations connected to a local area network as have been paid for in licence fees. The basis for assessment is the number of licences listed on the corresponding invoice and, if appropriate, any special arrangements made (multiple-licence price rates, unlimited licences, etc.). Computers used for work purposes at home belonging to the network, portable computers temporarily connected to the network and remote computers also count as workstations within the network. If these simply serve as a replacement for the workstations connected to the local area network, an additional workstation licence is not required. If the agreed number is exceeded, error-free operation cannot be guaranteed. The use of the software on portable computers also counts as simultaneous operation.
5. Ownership and Copyrights
The software provided to the customer remains, inclusive of all documentation, the property of the company.
The company remains the owner of all copyrights and rights of use for the programmes provided to the customer, inclusive of any documentation belonging to the programmes, also if the customer changes them or combines them with their own programmes and/or those of third parties. With such changes or combinations, as well as when copies are made, the customer must include a corresponding note in respect of copyrights.
The customer is not permitted to make any change to the programme code.
The company is not liable for any resulting damage if any programme changed by the customer or third parties, or other programmes which have not been provided by the company, are used and this leads to an impairment of system functions.
6. Payments
The customer is obligated to pay a one-off licence fee for the use of the software for an indefinite period. The amount of the licence fee is set in accordance with the current price list or any special agreement according to the order or invoice.
If the customer fails to make payments due within 30 days, the company has the right to charge interest on arrears in the sum of 5% above the valid base rate p.a.
7. Customer Responsibilities
The programmes and documentation provided may not be made available, in whole or in part, to third parties where the possibility of misuse exists.
The customer is not allowed to change in any way identifications, copyright markings and company ownership details belonging to the programmes.
The customer is obligated to reimburse the company for damage resulting from the breach of the above clauses, for gross negligence the maximum amount being the price of the licence, unless due to a deliberate act.
8. Cancellation
The company can cancel the agreement with immediate effect if the customer is in arrears of more than two months in respect of the agreed payment for the licence fee and/or the customer – after written warning – continues to contravene a clause of these general terms of business or any other condition agreed upon on an individual basis.
The customer only has the right to cancel this contract due to default of service on the part of the company or due to defects which cannot be corrected, if the company does not carry out its responsibilities and if he has first warned the company in writing and a reasonable period has passed, within which the blamed breach of agreement has not been corrected.
The customer will destroy, within a period of five days after termination of the licence, all programmes, copies and programme materials, including amended or combined programmes, as long as these do not have to be kept due to legal requirements. The customer will confirm in writing to the company, unsolicited and within 30 days, that the goods have been destroyed or kept due to legal requirements. At the same time, the customer allows the company the right of inspection in respect of the adherence to this provision.
C. Delivery, Acceptance, Warranty, Liability, Confidentiality and Data Protection
9. Delivery, Dates and Installation
Delivery dates and periods are in principle non-binding periods of guidance, unless they have been expressly agreed as fixed dates.
The company reserves the right to adapt the specification of the licensed product, e.g. in respect of technical developments, changes to the law or future market requirements.
If the software or manual is lost, the company will deliver a replacement copy on payment of the original cost.
The company can only warrant the faultless running of the software on the hardware systems that it recommends.
10. Warranty
The company warrants for a period of twelve months from the time of delivery that the software will fundamentally correspond in respect of its functionality to the description in the manual or documentation. If the customer is a consumer according to German civil law, the term of warranty is two years.
Liability for a particular property only exists if this is expressly agreed in writing.
The company advises that, according to the state of the art, it is not possible to produce computer software that is completely error-free.
The customer will inspect the standard software immediately after delivery and advise the vendor of any obvious errors, without delay and in writing.
If a defect becomes apparent in the software, the customer is obliged to report this to the company in writing within two weeks. Within the scope of the written complaint, the defect and the form in which it appears should be described as accurately as possible, so that an investigation of the defect is possible (e.g. submission of the error messages) and that an error of use can be ruled out (e.g. providing details of the steps taken when using the programme).
If the complaint in respect of a defect proves to be justified, the customer will allow the company a reasonable period for rectification. The customer will inform the company which type of rectification is preferred – correction of the delivered item or delivery of a new, defect-free item. The company is, however, entitled to refuse the rectification which has been chosen, in the event that this can only be carried out with disproportionate costs for the company, and if the other form of rectification would not result in considerable disadvantage to the customer. Furthermore, the company can refuse rectification overall if this can only be carried out with disproportionate costs for the company.
To carry out the rectification of the same defect, or those directly connected, the company is allowed two attempts within the period set by the customer. After a second failed attempt at rectification, the customer can withdraw from the contract or reduce the level of the licence fee. The right of withdrawal or reduction can be exercised even after the first failed attempt at rectification if a second attempt within the set period represents an unreasonable demand on the customer. If rectification under the abovementioned conditions is rejected, the customer has the immediate right of reduction or withdrawal.
Withdrawal due to a minor defect is excluded.
If an error occurs as the result of a driver that is incorrect or not up to date, the customer will concede to the company the right to deliver in addition a functioning driver within 10 days of notification to the company.
The company has the right, in the event that the removal of an error is actually impossible or cannot be reasonably expected for economic reasons, to install an alternative solution if this leads to a suitable solution to the problem.
The company does not provide a warranty that the software will correspond to the customer’s special demands or that it will work with the customer’s programmes or the hardware used by the customer.
If the customer makes a claim against the company in respect of the warranty, and it is established that either there is no defect or that a valid defect does not oblige the company to act in accordance with the warranty, the customer will reimburse the company for all the costs arising, provided that the demands made on the company represent gross negligence or a deliberate act by the customer.
The customer will immediately after installation, defect removal, maintenance or other company interventions on the computer system, carry out an inspection to ascertain whether data security is functional and keep a written record of the result.
11. Limitation of Liability and Period of Limitation
The company is liable for intent and gross misconduct according to the legal regulations. For simple negligence the company is only liable if a fundamental duty of contract (cardinal duty) is damaged or if there is a case of default or impossibility. In the case of liability for simple negligence this liability is limited to such damage that is foreseeable or typical. This limitation of liability is also valid as liability for simple negligence in the case of an initial inability on the part of the company. Liability for the non-existence of assured properties due to bad faith, for personal injury, defects of title according to Product Liability Law and Federal Data Protection Law remain unaffected.
In the case of a claim for company liability, the customer’s contributory negligence should be adequately taken into account, in particular when errors have not been reported adequately or data security is insufficient. Data security is insufficient particularly when the customer has not taken the necessary steps, using appropriate security measures corresponding to the state of the art, against external impacts, in particular against computer viruses and other phenomena which can endanger individual data records or the entire data pool.
The period of limitation for insubstantial contract violation is limited to two years.
C. Rights on Termination of Use
12. Software
On termination of the agreement, software with limited rights of use shall be returned, together with the data carriers if installed on data carriers belonging to the company, and shall also be deleted from the customer’s own data carriers and the deletion protocol handed to the company.
D. Ancillary Provisions
13. Legal Choice, Place of Performance and Place of Jurisdiction
Our entire business relationship with our customers is subject exclusively to the laws of the Federal Republic of Germany. If this law refers to foreign legal orders, such referrals are ineffective. The application of UN trade law (UNCITRAL) is expressly excluded.
The place of performance for deliveries and services is Berlin.
The place of jurisdiction for both parties is Berlin. The company is however entitled according to its own choice to make its own claims to our partner’s place of jurisdiction.
If the company’s contract partner is not entered in the commercial register, the legal regulations are valid.
14. Salvatorian Clause
If any provision of these Terms of Business or otherwise completed individual agreements be in whole or in part invalid, it will not affect the validity of the remaining provisions. The ineffective provision will be replaced by an alternative provision which comes as close as possible to the economic purpose of the ineffective regulation and which for its part is effective.
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