| § 1 |
Scope |
| |
These terms and conditions apply to all deliveries and services of Gesellschaft für Software und Datentechnik mbH (collectively: “GSD”). They apply exclusively. Terms of trade from a customer do not become part of the contracts, even if those terms have not been expressly vetoed. |
| § 2 |
Sales Offers |
| 2.1 |
GSD is bound to written offers for one month, as long as nothing else has been arranged in writing. |
| 2.2 |
GSD reserves the right to deviations of a technical nature, within measure, from the offer documents even after the confirmation of the sales order. GSD owns all rights to estimates and other documentations. The prospective customer is obliged to nondisclosure even if the sales order is not placed. |
| § 3 |
Purchase of Software License |
| 3.1 |
The purchased software modules are not handed over, but rather the customer receives, in accordance to regulation §69 a ff. UrhG (the originator’s law) and the following conditions, a non-exclusive right of use, subject to cancellation at any time, on the ordered workstations until the complete payment of the purchase price; after the complete payment of the purchase price, the customer receives a perpetual, but not exclusive right of use of the software manufactured by GSD. In the case of software leasing, GSD provides for the duration of the lease agreement a time-limited right of use which terminates automatically with the expiration or cancellation of the lease agreement. |
| 3.2 |
Only the number of workstations running the individual modules according to the purchase contract are licensed. The software can only be used on the equipment of the customer to whom the software has been licensed and only on as many workstations as the license permits. The right of use is not transferrable, not even to associated or affiliated businesses. The license purchaser is responsible that only corporate entities of which the purchaser owns a qualified majority are administered on the system. In the case of a change in the distribution of the shares, it is the obligation of the purchaser to inform GSD. |
| 3.3 |
The duplication, decompiling into the source code, change, enhancement, or other interference is only permitted under the conditions of §§ 69 d Abs. 2 and 3, as well 69 e of UrhG (the originator’s law). |
| 3.4 |
The software and documentation cannot be made available to third parties or used for the purposes of third parties, and third parties cannot be allowed to look into the documentation. All documentation that GSD delivers in conjunction with a software installation must be treated confidentially. The purchaser is responsible to maintain this nondisclosure agreement even after the conclusion of the contract. |
| 3.5 |
No further rights to the software are transferred to the customer. |
| 3.6 |
With every breach of the license conditions, a flat rate claim for punitive damages set at five times the purchase price of each of the software licenses is agreed. The enforcement of higher damages is reserved. The customer, however, is permitted to present proof that no damages, or damages substantially lower than the flat rate, have been caused to GSD. |
| § 4 |
Services and Software Installation |
| 4.1 |
Services are billed according to actual expenses (according to applicable hourly rate in the GSD price list valid at the the time services are rendered) of each started working hour. Further, the customer is responsible for any travel costs and overnight stay incurred according to the applicable GSD price list. GSD is permitted to involve qualified third parties for these services, after consultation with the licensee. |
| 4.2 |
It is the responsibility of the customer to provide the technical and organisational conditions necessary for implementation. Any preliminary work necessary for the execution of services by GSD must be finished, so that the installation can be started immediately after arrival of the GSD employee and executed without interruptions. The customer will make all needed facilities available, will provide assistance when operating additional machines, and (if required) provide access to the premises outside of normal business hours. At least one authorised project leader must be named by the customer as the main contact to GSD. |
| 4.3 |
If installation or implementation is delayed through no fault of GSD, the customer must carry the resultant additional costs. |
| § 5 |
Prices and Terms of Payment |
| 5.1 |
All prices are as of place of despatch, excluding possible postage and packaging cost, plus VAT. Installation and services will be billed separately. |
| 5.2 |
GSD is bound for 6 months to the offered price in the event of a placed order. For despatches that follow after confirmed orders, the GSD price list valid at that time applies. |
| 5.3 |
The payment due date is 8 days net after receiving the invoice. When purchasing standard software products, the purchase price is due immediately after completion of contract, unless other arrangements have been made. |
| 5.4 |
In the case of a delay in the acceptance of a delivery, the complete amount outstanding becomes immediately due for payment, regardless of previously agreed terms. |
| 5.5 |
The withholding of payment and partial payment because of counter claims is only permitted if the claims are based on the same contract and are undisputed or determined legally valid. |
| 5.6 |
When payment is delayed, GSD is justified to demand interest of 8% p.a. over the valid base interest rate in each case, starting from the payment due date. The right to seek further damages is reserved. |
| 5.7 |
If the customer’s account is more than two months overdue in payment, GSD has the right to cancel the contract, §§ 10, 11 apply accordingly. |
| § 6 |
Delivery Deadline and Delay |
| 6.1 |
An agreed-upon and contractual delivery deadline begins from the date of the written order confirmation from GSD. |
| 6.2 |
In the case of acceptance delay by the customer, a written message of delivery readiness supplied to the customer from GSD is sufficient to prove delay of acceptance. GSD is obliged to set an appropriate period for acceptance. |
| 6.3 |
Partial deliveries are permissible. |
| 6.4 |
If the failure to comply with the delivery deadline according to general legal maxims can be attributed to circumstances beyond the control of GSD, the deadline for delivery is appropriately extended. |
| 6.5 |
In case of delay of delivery of standard software modules by GSD, the customer can be released from the contract after the failure by GSD to meet a new appropriate deadline. Regarding services, in accordance with § 4, GSD comes into delay if GSD does not supply the service required despite the setting of a new deadline of at least 3 weeks from the date the new deadline has been received by GSD. In all other respects, § 9 applies. |
| § 7 |
Passing of Risk |
| 7.1 |
The risk (performance risk and remuneration risk) is transferred to the customer |
| a) |
when despatching: if the items to be supplied have been correctly despatched. |
| b) |
when delivered to the agreed location. |
| c) |
with delay of acceptance according to § 6 subparagraph 6.2, if the buyer is in delay. |
| d) |
with the acceptance (contract for work and labour). |
| § 8 |
Rights when Faulty |
| 8.1 |
GSD ensures that the software modules provided by GSD fulfil the functions that are specified in the performance specification (the manual or product specification booklet, as far as they exist). Software faults are reproducible errors in which the program functions deviate from the functions accorded in the performance specifications and that are verifiably untraceable to operating errors, errors in the hardware, system software, or other system parts not supplied by GSD. For functions that are created in the context of additional customisation by the customer, GSD only takes over the guarantee if these additional functionalities were fixed in writing in the context of the contract negotiations. |
| 8.2 |
Determined faults are to be communicated in writing, named and described sufficiently, so that an examination of the fault is made possible. In all other respects § 377 HGB (of the German Commercial Code) apply. |
| 8.3 |
Faults are eliminated by GSD, at their choice, either through the installation of an improved software version or through advice on how to eliminate or circumnavigate the effects of the error (backward compliance). The customer provides all documents necessary for the fault diagnosis as well as the computer system and allocates the necessary availability of computer time for making the error correction, free of charge. GSD is justified to refuse backward compliance if this is only incurs disproportionately high costs or the circumnavigation of the fault does not bring substantial disadvantages for the customer. In this case, GSD is justified to suggest a substitute solution. After the product is put into operation, the fault rectification takes place according to the rules of a to be agreed upon servicing contract. |
| 8.4 |
If the backward compliance fails repeatedly and the continued use of the software cannot be expected by the customer, the legal rights of the customer to a reduction of the remuneration or cancellation of the contract are revived, after expiration of an appropriate new deadline. |
| 8.5 |
Excluded from the guarantee are faults that are to due to modification of the technical specifications, incorrect operation or illegal interventions. The customer will reimburse expenditures incurred which are not based on faults of the products supplied by GSD. This also applies to any increase in expenditure for the error correction incurred because the purchased product has been moved to a location other than the place of (original) delivery. This additionally applies to any expenditure for the locating of the fault and any expenditure that results from the fact that no up-to-date data backup is available. |
| 8.6 |
A customer’s right to make a claim because of faults falls under the statute of limitations of 12 months after passage of the risk, unless they were caused by premeditation or malice. |
| 8.7 |
In each case, the transfer of a warranty according to § 443 BGB (German Civil Code) requires a separate written agreement. |
| 8.8 |
Manufacturer warranties for products not manufactured by GSD exist apart from the guarantee of GSD. |
| § 9 |
Liability |
| 9.1 |
GSD’s responsibility for damages, which are based on a negligent violation of obligation by GSD or on a deliberate or negligent violation of obligation of a legal representative or entity executing the orders of GSD, is limited to the total liability cover of the applicable damage liability insurance. For damages caused by gross negligence and damages due to the violation of substantial contract obligations (so-called "cardinal obligations"), or the absence of guaranteed features, GSD is limited in liability up to the height of the contract-typical, foreseeable damage.
GSD does not take on any further liability. GSD is especially not liable for the recovery of data, in as far as it is not reasonably recoverable. The customer is responsible for data backup.
With violation of lives, bodies or health, as well as with deliberate or grossly negligent actions of legal representatives or entities executing the orders of GSD, as well as in the case of mandatory legal liability in accordance with the product liability law, pre-existing limitations of liability do not apply.
|
| 9.2 |
All claims for compensation against GSD, GSD employees, or others acting on behalf of GSD, fall under the statute of limitations of 12 months after damage occurence, if, by law, no shorter period of limitation applies or claims are based on premeditation or malice. Claims resulting from a legal offense and the regulations of the product liability law are excluded; here the regular statutes of limitation periods apply. |
| § 10 |
Reservation of Title |
| 10.1 |
Goods and licenses remain the property of GSD until all of the existing claims against the customer, and also those which are entitled to GSD outside of the contract, have been fulfilled. |
| 10.2 |
Resale in the normal course of business is permitted. The customer transfers thereby all outstanding claims of the resale on the commodity back to GSD, which is automatically accepted by GSD even in the case that the commodity has been modified. |
| § 11 |
Termination of the Right to Use |
| 11.1 |
After termination of the right to use, all effects that GSD supplied to the customer for use are to be returned immediately. This applies, in particular, to leased hardware components or software (license dongle). The software is to be removed immediately from the EDP system of the user. |
| 11.2 |
Furthermore, all documents, including product documentation together with the development documentation are to be returned. |
| § 12 |
Final Clauses |
| 12.1 |
A contract remains effective in its remaining sections even with inefficacy of individual points. Ineffective regulations or gaps are to be replaced by regulations, which come as close as possible to the desired business effect. |
| 12.2 |
Area of jurisdiction is Kronach; GSD is entitled to bring action against the customers in the jurisdiction of their principal place of business or registered office. |
| 12.3 |
The laws of the Federal Republic of Germany apply. |
| 12.4 |
Special agreements do not exist. Modifications to these general terms and conditions are required to be in written form. This also applies to a waiver of the requirements of this format. |
