We provide our services exclusively on the basis of these general terms and conditions. Deviating conditions of the contractual partner (hereinafter referred to as “Customer”) shall not become part of the contract.
Terms and Conditions
§ 2 Scope of Services, Subject of the Contract, Subsequent Changes
1. The scope of the contractually owed services results from our respective offer.
2. If the transfer of standard software or hardware has been agreed upon, it will be delivered according to the product description of the respective manufacturer.
3. Changes requested by the customer after conclusion of the contract are to be agreed between us and the customer. If no agreement is reached regarding the desired changes, the original agreements shall remain in force. There is no right of the customer to unilaterally order changes.
§ 3 Rights of Use, Documentation
1. By purchasing standard software, the customer is granted a right of use to the standard software under the terms and conditions of the respective manufacturer.
2. Unless otherwise agreed in the contract, we grant the customer the non-exclusive, non-transferable, locally unlimited, permanent, irrevocable and irrevocable right to use the software created by us (hereinafter referred to as “individual software”) in object code upon full payment of the agreed amount due up to and including acceptance. Unless otherwise agreed in the contract, the source code is not the object of the transfer of rights.
§ 4 Delivery Time, Delay
1. We are not responsible for delays in performance due to force majeure, including events which make performance considerably more difficult or impossible, in particular strikes or the failure of or disruptions in the communications networks of other operators, insofar as we are not responsible for these events. They entitle us to postpone or interrupt the services for the duration of the obstruction.
2. If we are in default with our services for reasons for which we are responsible, the customer can demand compensation for the damage caused to him in addition to the service up to the value of the partial service, which cannot be put into operation due to untimely completion/execution, after the unsuccessful expiry of a reasonable grace period.
3. Both claims for damages by the customer due to delay in performance and claims for damages in lieu of performance which exceed the above-mentioned limits are excluded in all cases of delayed performance, even after expiry of any grace period granted to us. This shall not apply in cases of liability for intent, gross negligence or injury to life, body or health. The customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in performance. A change in the burden of proof to the disadvantage of the customer is not associated with this regulation.
§ 5 Acceptance, Defect Classes
1. Our services are subject to acceptance, insofar as this is agreed in the contract Partial acceptances can be agreed for delimitable partial services.
2 Unless otherwise agreed, a distinction is made between the following three classes of defects:
2.1 Class 1 Defects
A defect that prevents operation exists if the purpose/economically sensible use of the individual software is not possible, so that the continuation of the project or the adoption of the pilot application for production operation is not or not properly guaranteed. This is the case if a central function is not performed at all or is performed so incorrectly that the intended effect cannot be achieved even by other means than the proposed one.
2.2 Class 2 Defects
A defect impairing operation shall be deemed to exist if the purpose/economically reasonable use of the object of performance is restricted or impeded, but not to such an extent that the continuation of the project or the adoption of the software for production operation is not guaranteed or the test procedures could not be carried out nevertheless.
2.3 Class 3 Defects
Minor defects are deemed to exist if the purpose/economically sensible use of the object of performance is not or only insignificantly restricted. This also includes errors where texts are displayed in the wrong format or errors in input functions where the intended effect can also be achieved in another way.
We shall decide on the classification of the defects occurring, taking into account the customer’s opinion in an appropriate manner.
3. We shall declare to the customer the completion and readiness for acceptance of our performance in writing or in text form. Unless otherwise agreed, the customer has the right to subject our services to a functional test within 14 working days after receipt of the declaration of completion (hereinafter referred to as “functional test period”).
4. If class 1 defects are detected, the customer may cancel the function test. After completion or abortion of the functional test, the customer shall notify us of any defects detected during the functional test and, in the event of such abortion, shall set us a reasonable period of time to remedy the defects. After rectification, we shall again declare the completion and readiness for acceptance of our services in writing or in text form. The customer has the right to a renewed functional test; the time frame agreed for this in accordance with § 5 number 3 begins again.
5 The customer declares acceptance of our services within the functional test period if they only show defects of defect classes 2 or 3. These will be recorded as defects in the acceptance declaration and will be remedied by us within the scope of our liability for material defects in accordance with § 6.
6. Acceptance must be formal; the acceptance protocol must be signed by both parties to the contract. However, the acceptance may not be unreasonably refused by the customer. Acceptance shall therefore be deemed to have been effected if the customer does not accept our services within a reasonable period of time determined by us, although the customer is obliged to do so. Insofar as defects are recorded in the acceptance protocol, the first day on which the last not only insignificant defect has been remedied shall be deemed the acceptance date.
§ 6 Liability for Defects
1 The period of limitation for claims for defects is generally 12 months. The period begins with the delivery of the contractual objects or, in the case of the creation or adaptation of software, with their acceptance. The same periods of limitation apply to defects in partially accepted services or (partial) deliveries, starting from the time of partial acceptance or partial delivery.
2. The claims for defects do not extend to new hardware or software added to the customer’s premises after conclusion of the contract, which the customer procures or creates as agreed for the purpose of fulfilling his cooperation services, or to contractual objects which the customer or a third party modifies, repairs or attempts to subsequently fulfil the contract without our consent. This shall not apply if the customer proves that these measures were not the cause of the reported defect.
3. We shall remedy any defects notified to us within the period of limitation at our discretion by repair or replacement. We must always first be given the opportunity for subsequent performance within a reasonable period. If the defect is in the software, we may provide a workaround solution for standard software until the provision of a program version that eliminates the defect or, in the case of individual software, until the provision of a program version that eliminates the defect, insofar as this is reasonable for the customer. A new software version is to be taken over by the customer, unless this leads to adaptation and conversion problems which are unreasonable for him.
4. If the subsequent performance fails, the customer may, without prejudice to any claims for damages within the scope of § 7 of these General Terms and Conditions, withdraw from the contract in whole or in part or reduce the remuneration. A failure of the subsequent performance is only to be assumed if we do not succeed in eliminating the defect and, in the case of software, in rectifying it in such a way that the customer is able to use it essentially in accordance with the contract, even in the second attempt at rectification despite a set, reasonable period of grace.
5. § 7 Of these General Terms and Conditions shall apply to claims for damages.
§ 7 Liability
1. Within the framework of the statutory provisions, we shall in each case be liable without limitation for damage arising from injury to life, body or health which is based on an intentional or negligent breach of duty or otherwise on intentional or negligent conduct on the part of ourselves or one of our legal representatives or vicarious agents due to the absence or omission of a warranted characteristic or in the event of non-compliance with a guarantee; which is based on an intentional or grossly negligent breach of duty or otherwise on intentional or grossly negligent conduct on the part of ourselves or one of our legal representatives or vicarious agents.
2. We are liable, limited to compensation for foreseeable damage typical of the contract, for such damage which is based on a slightly negligent breach of essential contractual obligations by us or one of our legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may rely.
3. Liability for damages caused by slight negligence due to the violation of other, non-essential contractual obligations by us or one of our legal representatives or vicarious agents is excluded.
4. In the case of data loss caused by slight negligence, we shall only be liable for the damage that would have been incurred even if the customer had made proper and regular data backups appropriate to the importance of the data; this limitation shall not apply if the data backup was hindered or impossible for reasons for which we are responsible.
5. The above provisions shall also apply mutatis mutandis to our liability with regard to the reimbursement of futile expenses.
6. Our liability under the product liability law remains unaffected.
§ 8 Reservation of Ownership and Rights
We reserve the property and rights to be granted until full payment of the remuneration owed.
§ 9 Confidentiality, Data Protection
1. Each party to the contract shall keep secret during the term of the contract and after its termination, information and documents which originate from the area of the other party to the contract during the tender preparation phase and during the execution of the contract and which are marked as business or trade secrets or are recognisable as such due to other circumstances. Each party to the contract will oblige its respective employees and vicarious agents to observe the confidentiality obligation in an appropriate manner.
2. The obligation of secrecy shall not apply if the information – is publicly known, – was already known to us upon receipt, – is made accessible to us by third parties without the imposition of an obligation of secrecy, – must be made accessible to third parties for the fulfilment of the contractual obligation (e.g. subcontractors) and these third parties have been obliged to maintain secrecy.
3. Other obligations to confidentiality and secrecy, in particular those based on statutory confidentiality regulations, shall remain unaffected.
4 The customer is hereby informed that we collect, process and use personal data, in particular the address of the customer, his name, the name of the person responsible for the contract, exclusively for tasks arising from the contract and any other services commissioned by the customer.
§ 10 Final Provisions, Place of Jurisdiction, Applicable Law
1. All agreements, subsidiary agreements and assurances, as well as subsequent contract amendments must be in writing. This also applies to any agreement that is intended to amend this written form requirement.
2. The exclusive place of jurisdiction for all present and future claims arising from or in connection with the contract is Tübingen.
3. The law of the Federal Republic of Germany shall apply to the exclusion of standards that refer to another legal system and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. Should individual provisions of the contract or of these General Terms and Conditions of Business be or become ineffective, the effectiveness of the remaining provisions shall not be affected thereby. In such a case, the parties shall agree on a provision that best corresponds to the meaning and purpose of the invalid provision and comes as close as possible to the invalid provision.
Tübingen, December 2011, itdesign GmbH