General Terms and Conditions
1. Remuneration, payment, ancillary copyright, deadlines
1.1 Unless otherwise agreed, the remuneration shall be calculated on the basis of time and effort at the supplier’s prices generally valid at the time of conclusion of the contract. Remunerations are always net prices plus statutory VAT.
1.2 All invoices shall be paid in principle no later than 14 calendar days after receipt free paying agent without deduction.
1.3 The customer may only offset or withhold payments due to defects to the extent that he is actually entitled to payment claims due to material defects or defects of title in the service. Due to other claims based on defects, the customer may only withhold payments to a proportionate part taking into account the defect. Section 4.1 shall apply accordingly. The customer has no right of retention if his claim for defects has become statute-barred. Otherwise, the customer may only offset or exercise a right of retention with undisputed or legally established claims.
1.4 The Provider reserves the right of ownership and rights to be granted to the Services until the remuneration owed has been paid in full; justified retentions for defects pursuant to Section 1.3. sentence 2 shall be taken into account. Furthermore, the Provider reserves the right of ownership until all his claims arising from the business relationship with the Customer have been met. The Provider is entitled to prohibit the Customer from further use of the services for the duration of the Customer’s default in payment. The Provider can only assert this right for a reasonable period of time, usually a maximum of 6 months. This does not constitute withdrawal from the contract. § 449 paragraph 2 BGB remains unaffected. If the Customer or his customers return the services, the acceptance of the services does not constitute a withdrawal of the Provider, unless the Provider has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the Supplier. The customer may neither pledge nor assign by way of security any objects under reservation of title or rights. The Customer shall only be permitted to resell the goods in the normal course of business as a reseller under the condition that the Customer has effectively assigned to the Supplier its claims against its customers in connection with the resale and that the Customer transfers ownership to its customer subject to payment. By entering into this contract, Customer assigns by way of security its future claims against its customers in connection with such sales to Supplier, who hereby accepts such assignment. Insofar as the value of the security interests of the Supplier exceeds the amount of the secured claims by more than 20%, the Supplier shall release a corresponding proportion of the security interests at the request of the Customer.
1.5 In the event of a permissible transfer of rights of use for deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.
1.6 If the customer fails to settle a due claim in whole or in part by the contractual payment date, the provider may revoke agreed payment terms for all claims. Furthermore, the Provider is entitled to perform further services only against advance payment or against security by means of a performance bond issued by a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective accounting period or – in the case of one-off services – their remuneration.
1.7 In the event of the Customer’s economic inability to fulfill his obligations to the Provider, the Provider may terminate existing exchange contracts with the Customer by rescission, continuous obligations by termination without notice, even if the Customer files for insolvency. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in good time in writing of any imminent insolvency.
1.8 Fixed performance dates shall only be agreed upon expressly in documented form. The agreement of a fixed performance date is subject to the proviso that the Provider receives the services of his respective suppliers in due time and in accordance with the contract.
2. Cooperation, obligations to cooperate, confidentiality
2.1 Customer and provider each name a responsible contact person. Unless otherwise agreed, communication between the Customer and the Provider shall take place via these contact persons. The contact persons shall bring about all decisions related to the execution of the contract without delay. The decisions shall be documented in a binding manner.
2.2 The customer shall be obliged to support the provider as far as necessary and to create all conditions necessary for the proper execution of the order in the provider’s sphere of operation. In particular, he shall provide the necessary information and, if possible, enable remote access to the customer’s system. To the extent that remote access is not possible for security or other reasons, any deadlines affected by this shall be extended accordingly; the parties to the contract shall agree on an appropriate arrangement for any further consequences. Furthermore, the customer shall ensure that expert personnel are available to support the provider. Insofar as it is agreed in the contract that services can be provided on site at the customer’s premises, the customer shall provide sufficient workplaces and work equipment free of charge at the provider’s request.
2.3 The customer must report defects immediately in writing in a comprehensible and detailed form, stating all information useful for the identification and analysis of the defect. In particular, the work steps which led to the occurrence of the defect, the form of appearance and the effects of the defect must be stated. Unless otherwise agreed, the relevant forms and procedures of the Provider shall be used for this purpose.
2.4 The contracting parties shall be obliged to maintain secrecy with regard to business and trade secrets and other information designated as confidential which becomes known in connection with the performance of the contract. Such information may only be disclosed to persons who are not involved in the conclusion, execution or settlement of the contract with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information has become known, but in the case of continuous obligations, not before they have ended. The contractual partners shall also impose these obligations on their employees and any third parties they may employ.
2.5 The contractual partners are aware that electronic and unencrypted communication (e.g. by e-mail) entails security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, unless encryption has been agreed upon beforehand.
3. Disruptions in the provision of services
3.1 If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with the deadlines (“disruption”), the deadlines shall be postponed by the duration of the disruption, including an appropriate restart phase if necessary. A contractual partner shall inform the other contractual partner without delay of the cause of a disturbance occurring in his area and the duration of the postponement.
3.2 If the expenses increase due to a disruption, the Provider may also demand compensation for the additional expenses, unless the Customer is not responsible for the disruption and its cause lies outside the Provider’s area of responsibility.
3.3 If the customer can withdraw from the contract due to improper performance by the provider and / or can claim damages instead of performance or claims such, the customer shall, at the request of the provider, declare in writing within a reasonable period of time whether he asserts these rights or continues to wish the provision of services. In the event of withdrawal, the Customer shall reimburse the Provider for the value of previously existing possibilities of use; the same shall apply to deterioration due to proper use. If the Provider defaults on the provision of services, the Customer’s compensation for damages and expenses due to the default shall be limited to 0.5% of the price of the part of the contractual service that cannot be used due to the default for each completed week of the default. The liability for default shall be limited to a total of no more than 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, this shall be based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of the Provider.
3.4 In the event of a delay in performance, the customer shall only be entitled to withdraw from the contract within the framework of the statutory provisions if the delay is attributable to the provider. If the customer justifiably claims damages or reimbursement of expenses instead of the service due to the delay, he shall be entitled to demand 1% of the price for the part of the contractual service which cannot be used due to the delay for each completed week of the delay, but in total no more than 10% of this price; in the case of continuing obligations, this shall be based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply.
4. Material defects and reimbursement of expenses
4.1 The provider guarantees the contractually owed quality of the services. There shall be no claims for material defects in the event of only minor deviations of the services provided by the Provider from the contractually agreed quality. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible software errors or software errors that can otherwise be proven by the customer, or in the event of damage caused by special external influences that are not provided for under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless such modification or repair does not impede the analysis and elimination of a material defect. For claims for damages and reimbursement of expenses, Section 6 shall apply in addition.
4.2 The limitation period for claims for material defects shall be one year from the statutory start of the limitation period. The statutory periods for recourse according to § 479 BGB shall remain unaffected. The same shall apply insofar as the law prescribes longer periods in accordance with § 438 para. 1 No. 2 or § 634a para. 1 No. 2 BGB, in the event of an intentional or grossly negligent breach of duty by the Provider, in the event of fraudulent concealment of a defect as well as in cases of injury to life, body or health and for claims under the Product Liability Act. The processing of a notification of material defects of the customer by the provider only leads to an inhibition of the statute of limitations, as far as the legal requirements for this exist. A new start of the limitation period
is not affected by this. Subsequent performance (new delivery or rectification of defects) can only have an influence on the statute of limitations of the defect triggering the subsequent performance.
4.3 The provider may demand compensation for his expenses, provided
a) he acts on the basis of a notification without a defect being present, unless the customer could not be satisfied with reasonable effort, that there was no defect, or
b) a reported malfunction cannot be reproduced or otherwise proven by the customer to be a defect is, or
c) additional expenses due to improper fulfilment of the customer’s obligations (see also Sections 2.2, 2.3 and 5.2).
5. Defects of title
5.1 The provider shall only be liable for violations of third party rights by his service if the service is used unchanged in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment. The Provider shall only be liable for infringements of third party rights within the European Union and the European Economic Area and at the place of contractual use of the service. Section 4.1 sentence 1 shall apply accordingly.
5.2 If a third party asserts against the customer that a service of the provider infringes his rights, the customer shall notify the provider immediately. The provider and, if applicable, his suppliers are entitled but not obliged, if permissible, to ward off the asserted claims at their expense. The customer is not entitled to acknowledge claims of third parties before he has given the provider a reasonable opportunity to defend the rights of third parties in another way.
5.3 If the rights of third parties are infringed by a service of the provider, the provider shall, at its own discretion and expense
a) provide the customer with the right to use the service or
b) make the service free of infringement or
c) take back the service with reimbursement of the remuneration paid for it by the customer (less an appropriate compensation for use), if the provider cannot achieve any other remedy with reasonable effort.
The interests of the customer will be taken into account appropriately.
5.4 Claims of the customer due to defects of title shall become statute-barred in accordance with section 4.2. 6 shall apply additionally to claims for damages and reimbursement of expenses of the customer; section 4.3 shall apply accordingly to additional expenses of the provider.
6. General liability of the provider
6.1 The provider is always liable to the customer
a) for the damages caused by him as well as his legal representatives or vicarious agents intentionally or through gross negligence
b) according to the product liability law and
c) for damages resulting from injury to life, body or health for which the provider, its legal representatives or vicarious agents are responsible.
6.2 The provider shall not be liable for slight negligence, except in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper execution of the contract or the breach of which endangers the achievement of the purpose of the contract and on the fulfilment of which the customer may regularly rely. This liability is limited to the contract-typical and foreseeable damage in the case of property damage and financial loss. This also applies to loss of profit and lack of savings. Liability for other remote consequential damages is excluded. For an individual case of damage, liability shall be limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year, but not to less than € 50,000. Section 4.2 shall apply accordingly to the statute of limitations. The contractual partners may agree in writing on further liability upon conclusion of the contract, usually against separate remuneration. An individually agreed liability sum shall take precedence. The liability according to section 6.1 remains unaffected by this paragraph. In addition, and with priority, the liability of the Provider for slight negligence arising from the respective contract and its execution is limited to compensation for damages and expenses – irrespective of the legal grounds – in total to the percentage of the remuneration agreed in this contract and agreed at the time of conclusion of the contract. The liability according to section 6.1 b) remains unaffected by this paragraph.
6.3 From a guarantee statement, the provider is only liable for damages if this was expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in Clause 6.2.
6.4 In the event of loss of data, the Provider shall only be liable for the expenditure required to restore the data if the Customer has made a proper data backup. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a proper data backup in accordance with the due diligence obligations appropriate to the type of data prior to the measure leading to the loss of data.
6.5 Clauses 6.1 to 6.4 shall apply mutatis mutandis to claims for reimbursement of expenses and other liability claims of the Customer against the Provider. Sections 3.3 and 3.4 shall remain unaffected.
7. Data protection
The customer will conclude the necessary agreements with the provider for possible access to personal data and will also observe the special requirements for commissioned data processing (§ 11 BDSG).
8.1 The Customer shall be responsible for observing any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges. The customer shall handle legal or official proceedings in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.
8.2 German law applies. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
8.3 The provider provides his services on the basis of his General Terms and Conditions of Business (AGB). The customer’s general terms and conditions shall not apply, even if the provider has not expressly objected to them. Acceptance of the services by the customer is considered to be an acknowledgement of the provider’s general terms and conditions and waiver of the customer’s general terms and conditions. Other terms and conditions are only binding if the provider has acknowledged them in writing; in addition, the provider’s general terms and conditions apply.
8.4 Changes and amendments to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for cancellations, withdrawal), text form is not sufficient.
8.5 The place of jurisdiction in relation to a merchant, a legal entity under public law or a special fund under public law is the registered office of the provider. The provider can also sue the customer at the customer’s registered office.
Terms of contract for the creation of software
1. Subject matter of the contract
1.1 The Supplier shall create software for the Customer in accordance with the service description on which the conclusion of the contract is based (see Clause 2.2).
1.2 The copy of the software to be provided to the customer by the supplier contains only the object code.
1.3 The software shall be handed over including an operating manual (user documentation or online help). The operating instructions shall be written in the language of the user interface of the software, unless otherwise agreed. The delivery or creation of more extensive documentation requires a separate written agreement, in particular on the content and scope of the documentation.
1.4 The supplier shall create the software together with the operating instructions (together: subjects of performance) in accordance with the principles of proper professional practice.
1.5 Analysis, planning, consulting and training services are not the subject of this contract and are not owed by the Provider.
2. Cooperation between the contractual partners
2.1 The customer shall communicate its technical and functional requirements for the software to the supplier in full and in detail and shall hand over to the supplier in good time all documents, information and data required for the creation of the software. This also includes the description of practical and suitable test cases and data for the quality test (clause 7.1).
2.2 The performance specification conclusively reflects the owed quality of the software. Changes to the service description shall only be made in accordance with Clause 3. The Vendor shall provide analysis, planning and consulting services, also in connection with the service description, only on the basis of a separate contract against separate remuneration (see also Clause 1.5).
2.3 The Provider shall involve the project manager designated by the Client as contact person (section 2.1 of the GTC) to the extent required for the performance of the contract. The decisions of the contact persons shall be recorded in writing.
2.4 The customer shall have no claim to the provision of services at the customer’s premises.
3. Procedure for changes in performance
Both contracting parties may propose changes to the service description (clause 2.2) and the performance of the service. The following procedure is agreed for this:
3.1 The Provider shall view a change proposal from the Customer and inform the Customer whether or not an extensive review of this change proposal is required.
3.2 If an extensive review of the change proposal is required, the Provider shall inform the Customer within a reasonable period of time of the expected time required for this and the remuneration. The customer shall give or refuse the review order within a reasonable period of time.
3.3 If an extensive review of the Proposed Modification is not required or if the commissioned review is completed, the Provider shall either
a) submit a written offer to implement the changes (change offer). The change offer shall contain, in particular, the changes to the service description and their effects on the performance period, the planned dates and the remuneration; or
b) notify the Provider that the proposed change is not feasible for the Provider within the scope of the agreed services.
3.4 The Customer shall either reject a change proposal within the acceptance period (binding period) specified therein or declare acceptance in writing or in another form agreed between the contracting parties. The customer shall notify the supplier of any rejection without delay.
3.5 The Provider and the Customer may agree that services affected by a proposed change shall be suspended until the review has been completed, or – insofar as a change offer is made – until the expiry of the binding period.
3.6 Until acceptance of the change offer, the work shall continue on the basis of the previous contractual agreements. The performance periods shall be extended by the number of calendar days on which the work was interrupted in connection with the change proposal or its review. The Provider may claim reasonable remuneration for the duration of the interruption (Clause 3.5), except to the extent that the Provider has otherwise deployed or maliciously failed to deploy its employees affected by the interruption.
3.7 The amendment procedure shall be documented in writing or in text form on a form provided by the Provider at the Provider’s request, unless otherwise agreed. Any amendment to the Service Specification shall be agreed in writing or in another form agreed between the Parties.
3.8 Clauses 3.2 to 3.7 shall apply mutatis mutandis to the Provider’s proposals for changes.
3.9 Proposals for changes shall be addressed to the contact person (Clause 2.3) of the Contractual Partner.
4. Rights of use and protection against unauthorised use
4.1 Upon full payment of the remuneration owed, the Provider shall grant the Customer the non-exclusive right to use the objects of performance for the contractually stipulated purpose in his company on a permanent basis, unless otherwise agreed. A transfer of rights of use to third parties is only permissible if the customer has relinquished his rights in full. The customer shall be obliged to impose the obligations and restrictions of use incumbent upon him on the third party. This applies in particular to the obligations under clause 5.8. The customer shall confirm the relinquishment of his own use in writing at the request of the Provider.
4.2 In all other respects, all rights shall remain with the Provider.
4.3 The Provider shall be entitled to take appropriate technical measures to protect against non-contractual use. The use of the software on an alternative or successor configuration may not be significantly impaired by this.
4.4 The Provider may revoke the Customer’s right of use if the Customer not inconsiderably violates restrictions on use or other regulations for protection against unauthorised use (see also clause 5.8). The Provider shall set the Customer a grace period for remedial action beforehand. In the event of repetition and in the event of special circumstances which, after weighing the interests of both parties, justify immediate revocation, the Provider may issue the revocation without setting a deadline. The customer shall confirm to the provider in writing the cessation of use after revocation. The Provider shall grant the Customer the right of use again after the Customer has stated and assured in writing that there are no longer any violations of the right of use and that any previous violations and their consequences have been eliminated.
5. Obligations of the customer
5.1 The customer shall ensure that expert personnel are available to support the supplier during the project and, from the time of handover, for the quality test (clause 7.1) and the use of the software.
5.2 At the request of the Supplier, the Customer shall provide suitable test cases and data for the quality test in machine-readable form (cf. Section 2.1). If the customer fails to hand over such test cases and data, the supplier may select and create suitable test cases himself against additional remuneration.
5.3 The customer is obliged to download any software provided for this purpose after notification of provision.
5.4 The customer shall report defects in particular in accordance with section 2.3 of the GTC. Unless otherwise agreed, the relevant forms and procedures of the Provider shall be used for this purpose.
5.5 The Customer shall support the Provider as far as necessary in the performance of the contract and in the elimination of defects in accordance with section 2.2 of the GTC and provide other analysis material.
5.6 The Customer shall inform the Provider without delay of any changes in the conditions of use after handover.
5.7 Unless otherwise agreed, the Client shall additionally store all documents, information and data handed over to the Provider on its premises in such a way that they can be reconstructed on the basis of data carriers in the event of damage or loss.
5.8 The customer may not do anything that could encourage unauthorised use. In particular, he may not attempt to decompile the software unless he is authorised to do so. The Customer shall inform the Provider immediately if it has knowledge that unauthorised access is imminent or has occurred in its area.
6. Handover and transfer of risk
6.1 Unless otherwise agreed, the Supplier may also hand over the Subject Matter to the Customer by electronic transmission or by making it available for download. If the subjects of performance are made available for downloading, the Provider shall notify the Customer of the provision.
6.2 Insofar as the subjects of performance are transmitted electronically, the risk of accidental loss shall pass to the Customer upon receipt by the teleservice provider commissioned by the Provider to forward the subjects of performance.
6.3 Insofar as the objects of performance are made available for downloading, the risk of accidental loss shall pass to the customer upon provision and notification of the customer thereof.
7. Quality inspection and defect claims of the customer
7.1 The customer shall immediately – as a rule within 14 calendar days – inspect all objects of performance handed over, in particular software or executable parts of the software agreed as partial deliveries, to ensure that they are free of defects, in particular that they are in accordance with the agreement (quality inspection). For this purpose, the customer shall use practical and suitable test cases and data for the software (cf. section 2.1). The Supplier may coordinate with the Customer regarding the test procedures and also accompany and support the quality test on site.
7.2 The customer shall duly notify any defects occurring during or after the quality test without undue delay, at the latest seven calendar days after becoming aware of them (clause 5.4).
7.3 In addition, the commercial obligation to inspect and give notice of defects (§ 377 HGB) shall apply.
7.4 The Supplier warrants that the objects of performance comply with the contractual quality when used in accordance with the contract. Section 4 of the General Terms and Conditions of Garamantis GmbH applies in particular to material defects. Section 5 of the GTC shall apply in particular to defects of title.
7.5 The customer shall only have claims for defects if reported defects can be reproduced or otherwise proven. Sections 5.4, 7.2 and 7.3 shall apply in particular to the notification of defects.
7.6 If the customer is entitled to claims for defects, he shall initially only have the right to subsequent performance within a reasonable period. Subsequent performance shall include, at the supplier’s discretion, either rectification of the defect or the creation of a new object of performance. The interests of the customer shall be adequately taken into account in the choice.
7.7 If the supplementary performance fails or cannot be carried out for other reasons, the customer may, under the statutory conditions, reduce the remuneration, withdraw from the contract and/or – within the scope of section 6 of the GTC – claim damages or reimbursement of expenses. If the supplementary performance is delayed, section 3.4 of the GTC shall apply to the Provider’s compensation for damages and expenses. Section 6 of the GTC shall apply in particular to compensation for damages or reimbursement of expenses. The customer shall exercise a right of choice to which it is entitled with regard to these claims for defects within a reasonable period of time, as a rule within 14 calendar days after the possibility of the customer becoming aware of the right of choice.
8 Validity of the General Terms and Conditions
The General Terms and Conditions of Garamantis GmbH (https://www.garamantis.com/en/terms-conditions/) shall apply in addition.