General Business Terms
General business terms of SPI Systemberatung Programmierung Industrieelektronik GmbH (hereinafter “SPI GmbH”)
Status: February 2020
Part I – General Terms
1. These Terms and Conditions only have validity for entrepreneurs as defined in § 14 of the German civil code (BGB), legal entities under public law, and special funds under public law.
2. Not only do they have validity for the specific contractual relationship, but for all future business relationships should we not refer to other business terms.
3. Deviating, contradicting or supplementary terms and conditions of the client shall not be deemed to be a constituent part of the contract, even if we should have knowledge thereof; the exception being that we explicitly consent to their validity. These Terms and Conditions are also deemed to be valid should we perform for the client without reservation even though we have knowledge of terms and conditions of the client that contradict, deviate from or supplement ours.
4. These Terms and Conditions comprise Part I that are general terms and have validity for all contractual relationships and Part II et seq. that are conditions that relate to the services stated therein. The provisions in Part II et seq. have priority over those in Part I, in as far as they should contradict them.
2. Conclusion of the Contract
1. Our offers are subject to change without notice. By accepting an offer, the client declares that he wishes to place and order for the services stated therein. We are entitled to accept the offer to conclude a contract that is made by the client in that he places an order, this acceptance being subjected to a time limit of one week of it being received. The acceptance can either be expressed explicitly or by the order processing being commenced with.
2. Should a part of the offer comprise third-party services (e.g. software or hardware from third-party suppliers), these are deemed to be subject to us also receiving the delivery. Should the services not be available on grounds that we were unable to foresee at the time the contract was concluded, or should we not receive deliveries from our own supplier through no fault of our own, we have the right to withdraw from the contract in this regard.
3. The only agreed quality of our service is that stated in our offer and any annexes thereto. Any public statements, promotions or advertising is not deemed to be a contractual indication of quality regarding the service.
Stated delivery or service dates are not binding should we not have explicitly designated them as being binding.
4. Partial Deliveries
We are entitled to make partial deliveries should it be clear based on the conditions that were discernible when the contract was concluded, that it can be expected that this is reasonable for the client.
5. Duties of the Client
1. The customer has a duty to supporting our work to a necessary extent. He especially ensures that all the technical, personnel and space requirements that he is responsible for and that are necessary for a correct implementation of the contract are met for us at no expense. When requested to do so by us, he provides us with all the data and information he has and that we require from him for the purpose of the contract. The client shall name an informed and competent point of contact for the duration of the contract.
2. Any agreed maturity dates and time limits are extended by the time in which the client delays his performing of his cooperation obligations or is otherwise responsible for the hindrance despite a warning having been issued and such hindrance causes a delay to our fulfilling of the service. A warning is not required should we have already set a reasonable deadline or have agreed a delivery date at the time we demand the cooperation.
3. The client shall notify us of malfunctions or defects regarding our services without delay and at the same time describe the malfunction or the defect as precisely as possible, providing expedient information that he is aware of. Should the client not be able to reasonably provide us with this information, this is insignificant as regards our duty to perform.
4. The client assures that he has the necessary rights for all data, information, documents, graphics, etc. that he hands to us and that their contractual use is not prevented by any third-party rights or acts of law. He shall indemnify us from third-party claims that such assert against us on the grounds of an infringement of clause 1.
5. The client is obliged to create an up to date restorable data backup of his system prior to him granting us access thereto. He is to provide us with written notification should a restorable backup of his data not exist, this then being confirmed by us. This is not the case should we be commissioned with the creation of a data backup.
1. The remuneration that is agreed to with the client is payable for our services. Should a remuneration for a service that has been agreed to with the client not have been agreed to, then our price lists are deemed to be valid or a customary remuneration is deemed to have been agreed to as an alternative.
2. All prices stated by us are deemed to be net prices in euros. Should we provide our services abroad on the ground of the agreement entered into with the client, the client is to bear all taxes, customs duties or other taxes that such incur. The client has an obligation to making all tax certificates, tax assessment notices and all other documents available that we require so that we can meet their fiscal obligations both abroad and in Germany.
3. Purchase prices are due upon conclusion of the contract. In the case of contracts for services and contracts to render being concluded, we are entitled to demand an advance payment of 30% of the agreed remuneration. In the case of contracts for services, the dates on which additional payments on account are due are governed by the provisions of § 632a BGB. The following provisions have validity for the settlement of further remunerations for contracts for services.
4. Should an invoicing on an hours-worked basis have been agreed to, we shall invoice our services based on the hours actually worked in units of 6 minutes. The invoices concerned include a timesheet, from which it is possible to discern the invoiced services. Any complaints regarding the timesheets are to be filed within a period of four weeks of them being received or they shall otherwise be deemed to have been approved and correct.
5. Work carried out at our legal domicile at night between 8.00 p.m. and 8.00 a.m. and at weekends and on public holidays is subject to a separate agreement. The agreed hourly rates are subjected to a 50% increase in cases where work is to be carried out at night with the agreed hourly rates being increased by 100% should work carried out at weekends and on public holidays, these being increased by 150% should work be carried out between 8.00 p.m. and 9.00 a.m. on such days.
6. Travel times are invoiced at the agreed rates should we not use the travel times for other services that can be invoiced. Travel expenses, accommodation costs and other expenses are initially invoiced against documentary proof. Car travel is invoiced with 0.50 euros/km. Any travel up to a maximum distance of 50 km from our legal domicile is not invoiced.
7. In the event of the client terminating a contract for services, we have an entitlement to the remuneration for all services that we have already provided. We also have an entitlement to 30% of the remuneration that is outstanding for the services that have not been provided. The client has the right to furnish proof that the share that we are entitled to pursuant to § 648 BGB is lower than the percentage rate stated above.
8. Should the client be in default of payment, we are entitled to levy a one-off default lump sum for each invoice pursuant to § 288 (5) BGB. The right to assert a claim for any default damages over and above the foregoing remains unaffected.
9. We are entitled to set any payments made off against the oldest invoice that is due even should the client have contradictory payment regulations in force.
10. We are entitled to send the client invoices in a digital form.
7. Placing our Payment Claims at Risk
1. Should it be discernible after the contract has been concluded with the client, that an entitlement to the payment of a remuneration that we have is at risk due to a lack of ability to pay on the part of the client (e.g. a fundamental worsening of an assets situation), the client is to provide security for his counter-performance as long as advance payments by the client have not been agreed to. Should our contractual obligation be in the provision of a work or service, we can demand an advance payment of 50% of the agreed remuneration and the provision of security for the remaining amount from the client.
2. § 321 BGB remains unaffected providing that we can also refuse to provide our services should other claims from the same legal relationship also be at risk in the meaning of § 273 BGB.
3. Should installment payments have been agreed to with the client, the entire residual claim is deemed to be due should the client be fully or partially in default with at least two successive installments.
4. Agreements regarding the granting of additional time for payments are deemed to be invalid should the client be in default with a payment or should the requirements of § 321 BGB take effect regarding a claim.
1. Full liability is assumed for intent and gross negligence.
2. The liability resulting from an infringement of fundamental contractual obligations is restricted to foreseeable damages that are contractually typical. Fundamental contractual obligations are such as are subject to a fulfilment that only makes a correct performing of the contract possible; the party against which the infringement has been carried out normally being able to trust in them being adhered to. The period of limitation for claims asserted in connection with this paragraph is one year.
3. Paragraph 2 is not valid for claims asserted on the grounds of physical injury, health impairments or death, deceitful conduct, the assumption of a warranty and for claims asserted pursuant to the German Product Liability Act.
4. Liability is otherwise excluded – regardless of the legal grounds.
9. Claims for Defects
1. Should the client be entitled to assert claims for defects, we have the right to choose the form of the supplementary service within the legal limits.
2. The period of limitation for claims for defects is one year. This is not valid for claims asserted on the grounds of intent, gross negligence, physical injury, health impairments or death, when assuming a warranty and for claims asserted pursuant to the German Product Liability Act.
3. Should the client file a complaint regarding the existence of defects and should our work in connection with this subsequently result in the determination that no defect existed, we are entitled to invoice our work with the agreed hourly rates or should no agreement have been reached in connection with this, we shall invoice the client on the basis of our general hourly rates.
10. Setting-off and Retentions Rights, Assignment
1. The client is only entitled to set off against claims that are undisputed or have been determined with a non-appealable effect. The client is only entitled to exercise retention rights in connection with claims that are undisputed or have been determined with a non-appealable effect and that have been established in the scope of the same legal relationship.
2. The assignment of claims that are asserted against us, is excluded. This does not have validity within the scope of § 354a of the German commercial code (HGB).
11. Data Protection
Should the client commission us with the processing of personal data that are subject to Art. 28 GDPR, we are prepared to conclude a standard order processing contract. We also obligate ourselves to acting in accordance with existing legal provisions that exist in connection with personal data that the client provides us with for processing.
12. Export Regulations
1. The client has an obligation to acting in accordance with export restrictions pursuant to national and international law, especially EU and US-American law as regards our services. When requested to do so, we shall provide the client with information regarding the merchandise and services that are subject to export restrictions.
2. We are not obliged to send merchandise to or provide services at places that are subject to export restrictions.
13. Naming as a Reference Client
We are entitled to use the name of the client and the logo he uses in connection with his corporate name, stating the services we provided for the client, we thereby including the client in our advertising in the form of a client reference. This is exclusively carried out in a customary manner and form that is reasonable for the client.
14. Final Provisions
1. This contract includes all agreements that the parties have entered into regarding the subject of the contract. Any collateral agreements and previous agreements regarding the subject of the contract are hereby deemed to be invalid.
2. Amendments and supplements to this contract are to be in writing in as far as a more stringent form is not specified by law. This also has validity for each wavering of the formal requirement.
3. Other General Terms and Conditions of the parties are not applicable for this contract. This is also the case should an uncontradicted reference be made to their inclusion in documents issued in the future in connection with this contract (e.g. service requests).
4. Should a provision of this contract be void, ineffective or not enforceable in part or in its entirety, or should a provision that is actually necessary, not be included, this has no effect on the validity and enforceability of all of the other provisions of this contract.
5. The contract is solely governed by the law of the Federal Republic of Germany. International private law is not applicable in as far as it is not mandatory.
6. The sole legal venue for all disputes in connection with this contract is our legal domicile. We are also entitled to take legal action against the client at his statutory legal venue.
Part II Supply of Standard Software
The provisions of this Part II have validity in cases where the subject of the contract is the supply of standard software that is offered by us or third parties (especially SheetMetal, Tru-Tops, CAD Viewer), these not having been customised for the client.
15. Rights, Source Code
1. With payment of the remuneration that is agreed to for the software, the client is also entitled to use it for his own purpose. If he is only entitled to install the software on a specified number of devices, its installation on an additional device initially necessitates the deinstallation from another one.
2. A copying of the software is only permissible to the extent to which this is necessary for its use conform with the contract. Customary backup copies are permitted and are not deemed to be an own installation.
3. The right to process and transfer or provide the software or to grant the possibilities of its use to third parties (especially the rental or software as a service), is not transferred; statutory claims of the client remain unaffected.
4. The client is only entitled to modify, extend, or rework the software in another form in the meaning of § 69c No. 2 of the German Copyright Act (UrhG) if the law permits this mandatorily. The client is to permit us to remedy the defect ourselves before the client or third parties remedy faults that affect the software themselves. The client does not have own rights of use and exploitation in such processing – over and above the rights of use granted in the contract.
5. The client is only entitled to decompile the software within the limits specified in § 69e UrhG. He is to initially provide us with the opportunity of us providing the required data and/or information within a reasonable time limit, so as to provide an interoperability of the software with other hardware and software.
6. If the software should comprise open source software, these are subjected to the corresponding license terms.
7. The client is not entitled to delivery of the source code for the standard software; this is not valid for such parts of the software that are subject to an open source license.
8. Should the client be granted usage possibilities before full payment has been made, these can be revoked at all times.
16. Special License Terms for the Standard Software
1. The following provisions have validity should special license terms have to be accepted for the use of the standard software (referred to as a EULA).
2. Should the license terms for a software that we have not produced, are to be accepted, then these license terms have sole validity in relation to the licensor concerned and not in relation to us. We shall inform the client of such license terms that we are aware of, prior to conclusion of the contract.
3. Should the applicable license terms be for a software that we have produced, then these license terms have a lower priority than the contract that has been concluded with us that is governed by these Terms and Conditions.
Should nothing to the contrary be agreed to, the client is responsible for the installation of the software.
18. Audit Right
1. Subject to the following conditions, we have the right to have validations conducted in order to determine whether the client uses the software conform with the contract that he has concluded with us, in as far as the client has a restricted right of use of the software as regards the number of installations (e.g. use on a server and 10 clients) or him not having acquired all of the rights (e.g. no right to providing it to third parties).
2. When requested to do so by us, the Client has an obligation to providing us – within one month – with written notification of the number of devices the software is installed on or has been activated on and the scope to which he uses the software, has it used and/or whether he permits third parties to use it. We are able to avail ourselves of this right on an annual basis should we be of the opinion at our equitable discretion, that the client uses the software or has it used to an extent that is not covered by the rights that have been granted to him, or that the client could be acting in a manner that infringes our rights as defined in this contract.
3. Should the client have provided the information pursuant to the foregoing 2) or should he not provide this information on time, we are entitled to have a determination made as to whether the client uses the software conform with the contract concerned. The audit is to be carried out by an expert or a person that is subject to a statutory obligation to maintain secrecy (e.g. a lawyer or an auditor) (together referred to as an “auditor”). We are to place the auditor under an obligation prior to commencement of the audit, that he also has a duty to maintain secrecy towards us regarding the results of his audit and the knowledge he gains in the scope of the audit regarding the client, as long as no exception from the duty to maintain secrecy is specified below. For the purpose of the audit, the client is to permit the auditor to audit the adherence to the contract concerned by the client, especially as regards the question as to whether the client uses the software in the scope of the rights and the (number of) licenses he has acquired. The client shall provide the auditor with the information he requires as a necessity, access to relevant documents in addition to him permitting the conducting of a validation of the used hardware and software environment to be carried out. The audit is only to be performed during the normal office hours of the client and it is to be announced with a reasonable period of notice (normally at least one month in advance). The auditing right is to be exercised so that the business operations of the client are impaired to as little an extent as possible. The audit is also to be organised so that there is no infringement of the personal data protection regulations.
4. Should the auditor not determine an infringement of the contract concerned or our rights in the software by the client, he is only to inform us of this result of his audit. Should his audit provide grounds for an estimation that an infringement has taken place, he is to inform us and the client of the claims we have against the client at his equitable discretion. The auditor is to inform us of the scope of the infringement and the facts that substantiate this. Should we not be able to reach an agreement with the client within a deadline of two months after receipt of the information with regard to the claims that we can assert, the auditor is deemed to have been released from his duty to maintain secrecy to the extent that he provides us with information, documents, etc. that we sensibly require at our equitable discretion so that we can assert our claims against the client before a court of law.
5. We can also avail ourselves of the rights pursuant to the foregoing clauses 3) and 4) without us requesting information in advance pursuant to clause 2), should we assume according to our equitable discretion that the contract concluded with the client has been infringed in the meaning of this clause, or it is our opinion according to our equitable discretion, that a requesting of information in advance is not relevant in connection with the safeguarding of our rights.
6. The foregoing provisions remain unaffected by legal entitlements, especially the information entitlement pursuant to § 101 (1) UrhG.
Part III – Software Development
The provisions of this Part III have validity in cases where the client has commissioned us with the programming or customisation of a piece of software.
19. Definition of the Software that is to be Produced
1. Should requirement specifications be agreed to with the client in the scope of the commissioning of the work, this serves as the basis for the production of the software.
2. Should the software that is to be produced should not have been adequately specified in the order, we shall compile an adequate requirements list against payment of a remuneration or we shall produce the software adopting the system described in paragraph 3, the foregoing depending on the agreement concluded with the client. The requirements list is deemed to be binding for our future services after it has been accepted by the client. It can always be adapted during the cooperation between the parties by mutual agreement. Should a remuneration not have been agreed to for the compiling of the requirements list, this shall be subject to the hourly rates that are agreed to for the producing of the software.
3. Should the client not wish to have a requirements list compiled, the software shall be developed according to scrum, an agile development method. Each of the parties names a project manager who is responsible for the project steering and controlling. At the beginning of the work, we create what are known as user stories upon commencement of the work, these forming the basis for the determination of the objectives that the user can achieve when using the software that is to be produced. The sum of the initial user stories forms the backlog that we administer. The project managers then select a certain number of continuous user stories from the backlog, these then having to be implemented in the software in an initial so-called sprint. After we have completed the sprints, we present the software that has been produced to this extent to the client so that he can check whether the objective of the sprint has been met. Should this not be the case, the project managers shall determine the measures that need to be implemented so that the objective is achieved. If the objective has been achieved, they specify the user stories that are to be implemented in the next sprint. Should a party detect uncovered subjects or deem a need for coordination with the other party to be necessary during the implementation of a sprint, a corresponding coordination between the project managers is to be carried out without delay. The other sprints are implemented in the aforementioned manner. This system is adhered to until the software production has been completed. Should services be accepted during the testing of a sprint, the final acceptance of these services can only be refused if new defects should occur during the acceptance test.
The client can demand modifications and supplements to the service until it has been accepted, subject to the condition that such can be implemented in technical terms and they are reasonable for us. We check such modification requests within a reasonable period and then inform the client of the result in addition to any resulting costs and time schedule delays, such information being provided in the form of a binding offer. We shall continue to provide the previously commissioned services on schedule during ongoing service modification proceedings, the exception being if the client should provide us with written instructions to the effect that the work is to be stopped or restricted until such time as a decision has been made regarding the service modification.
21. How the Development is carried out
1. Should nothing to the contrary be agreed to, we have a duty to developing the software based on the latest state of the art. Programming services shall be carried out using a standard higher programming language.
2. Should nothing to the contrary be agreed to, we are able to make a free decision regarding the development environment that is to be used and the utilisation of libraries, frameworks, etc., this being subject to the condition that their supply is necessary on the basis of the order or should the client acquire such free of charge and at the standard terms. On the acceptance date, the client is to be informed as to which libraries, etc. have been used for the software production, what is required for the executable compiling and where the programs, frameworks, etc. can be downloaded from.
3. Should a non-adherence to agreed deadlines be impending, we shall inform the client of this without delay, stating the grounds and the possible duration of the delay.
22. Place of Services and Duties of Cooperation of the Client in connection with the Development of the Software
1. Should nothing to the contrary be agreed to, we provide our services at our legal domicile or at another place determined by us.
2. In addition to the generally agreed duties of cooperation, the client also has to adhere to the duties of cooperation from his sphere of influence that are required for the production of the software. These especially include the naming of employees who can provide the required information and make decisions. He is also to provide us with all information and documents from his sphere of influence and which are required for the provision of our services (e.g. descriptions of IT systems, interface descriptions) in addition to him granting us access to his IT systems to the required extent; this also being possible using a remote access system that is of the latest state of the art.
23. Installation and Acceptance
1. Should nothing to the contrary be agreed to, the client is responsible for the installation of the software for the acceptance and its parametrization. The data migration/import from other software products to the software supplied by us, is only carried out by us on the basis of a corresponding explicit agreement.
2. With the installation, the parties shall conduct an acceptance test for this. The client is not authorised to make productive use of the software for the acceptance. An implicit acceptance is deemed to have been declared should the client not respond to our written demand that he declare the acceptance or report any defects that prevent the acceptance within a time limit of at least two weeks.
The provisions of Clause 15 have corresponding validity.
25. Auditing Right
The provisions of Clause 18 have corresponding validity.
26. Open Source Software
1. The software solution that we supply can include open-source software. As a deviation from the transferring of rights to the client that is agreed to otherwise, he acquires open-source software rights conform with the license provisions that have validity for this.
2. We shall inform the client of the open-source software that is being used under which license. We supply this to him free of charge as a gift in accordance with the provisions of the license. Our liability for the open-source software is therefore based on § 521 BGB. The other provisions of this contract regarding liability and defects are not applicable to open-source software.
27. Supplying Documentation
1. We only have a duty to supply documentation for the software that we supply against payment of a corresponding remuneration. Should no agreement be reached, the creation of documentation that is to be supplied incurs the same hourly rates that were agreed to for the development thereof.
2. We are entitled to directly include a documentation of the source code in it.
28. Software Acceptance
1. We shall inform the client that the software has been produced and then install the same in a hardware and software environment that he has specified and that is suitable for the purpose of the acceptance.
2. With the installation of the software, the client has a duty to declaring the acceptance or reporting and deficiencies that prevent the acceptance within a reasonable time limit.
3. We shall remedy any reported defects within a reasonable time limit and provide notification of the repeat readiness for acceptance should the acceptance not have already been declared. The foregoing provisions then have corresponding validity for the repeat acceptance test.
4. The client is not authorised to make productive use of the software for the acceptance.
29. Claims for Defects
1. Claims for defects regarding software that has been supplied by us are excluded should the client or other third parties not commissioned by us, modify the same. This is not valid should the client furnish proof that these modifications were not the cause of the defect concerned. We can nevertheless refuse to remedy defects in such cases, should it appear that we cannot be reasonably expected to conduct an analysis/remedy of the defect due to this being rendered more difficult.
2. We are entitled to charge a reasonable remuneration for additional work that is necessary in order to conduct the analysis or remedy a defect that was caused by modifications being made in the foregoing meaning.
3. As regards an infringement of third party proprietary rights in connection with the software that we supply, we only assume responsibility in cases where no third-party proprietary rights are infringed in countries in which the software is to be used as far as we are aware. This restriction does not have validity for an infringement of third-party copyright.
4. The provisions of Clause 9 have validity otherwise.
Part IV – SPI-Software Customer Service
This Part IV is applicable for contracts concluded for availment to the SPI-Software customer service.
30. Subjects of the SPI-Software Customer Service
1. The subjects of the SPI-Software Customer Service are the software products specified in the contract concerned in the latest software version that existed at the time the client made the corresponding request in addition to software versions that were released by us during the past two years.
2. The SPI-Software Customer Service comprises a telephone/Email support for application problems that occur when using the respective software and the supply of new versions of the software.
31. Telephone, Email and Remote Maintenance Support
1. In the scope of the telephone, email and remote maintenance support, we advise the client in aspects such as features, possibilities of use and application problems. The Support department can be contacted under +49-4102-706-345 or at firstname.lastname@example.org.
2. We offer remote maintenance support should this be best suited to solving the problem that the client is experiencing according to our reasonable discretion. This necessitates the client installing a corresponding software on his systems as specified by us, this thereby ensuring that access is possible via the Internet for the duration of the use.
3. Only those employees of the client named in the contract and those employees that have participated in a basic SPI training course for the software concerned or who are confirmed by us as having similar knowledge, are entitled to avail themselves of the support.
4. Support requests are processed between 8.30 a.m. and 4.30 p.m. Mondays to Thursdays and between 8.00 a.m. and 2.00 p.m. Fridays except for 24/31 December and official public holidays in Schleswig-Holstein. We have a duty to react within a reasonable time limit.
32. New Software Versions
1. We make new versions of the software available at our discretion so that they can be downloaded by the client. If requested to do so by the client, we can also install the new versions against payment of the agreed remuneration.
2. The client has the same rights in the new software version as he had in the previous version. The client is entitled to use the new version together with the previous version for test purposes for a maximum duration of one month, subject to the condition that only the previous version is used for productive purposes.
1. The contract is concluded for a minimum term of one year. The minimum term is prolonged by an additional year in each case should it not be terminated subject to a period of notice of three months. The contract cannot be terminated subject to the contractual period of notice during the respective minimum term.
2. The right to terminate on important grounds remains unaffected. The following grounds are especially deemed to be important grounds should they exist as regards the other party:
a. an infringement of fundamental contractual obligations by the other party should the infringement not be remedied despite a warning being issued and the setting of a reasonable deadline. The issuing of a warning and the setting of a deadline are not necessary should this be unreasonable;
b. a payment default on the part of the client for a period of two successive months or a payment default during a period that exceeds two months in as far as the client is in default with payments, the sum of which equals two monthly remunerations as a minimum;
c. the own application being filed for the commencement of insolvency proceedings, the commencement thereof and the refusal to do so due to a lack of assets;
d. the discontinuation of the business activities within a fundamental scope and the announcement of a corresponding intention;
e. the commencement of winding-up proceedings.
3. Notices of termination are to be in writing.
We are entitled to advance payment of the remuneration that has been agreed to with the client for the respective contractual year.
35. Remuneration Adjustments
We are entitled to increase the remuneration agreed to with the client at the end of the first contractual year at our equitable discretion should our production costs for the services we are to provide (especially personnel costs and purchased services) have increased. The client has a special right of termination should the price increase exceed 5%, this taking effect when the price increase takes effect. The client is to be informed of the price increase subject to a period of notification of three months. It is agreed that the client can terminate subject to a period of notice of one month.
Part V – Software as a Service
Part V is applicable for contracts with which we provide the client with a piece of software for online use.
36. Operation of the Software
1. Should we have a duty to enabling the client to operate a piece of software and its supply for online use, we operate such on servers that are located within the European Union. The client is not entitled to the provision of a certain server for his sole use.
2. The software and the data stored therein is provided at the transfer point (the interface to the Internet in the computer centre in which the software runs) with an availability of 99% per contractual year. The following times are not taken into account when determining whether the availability is provided:
a. malfunctions or impairments affecting the technical infrastructure that is required for the use of execution of the software or the Internet, as long as we are not responsible for this;
b. a planned non-availability of the software for maintenance work during the time windows agreed with the client, this at least being between 10.00 p.m. and 6.00 a.m. and on weekends. In order to ensure the software security and the data stored therein, maintenance work can be carried out in urgent cases (e.g. important security updates) subject to notification being made with a period of notice that is reasonable for the case concerned, this then being carried out at times where there is a heavily reduced use as agreed to with the client.
3. The software and the data stored therein are subjected to a backup each calendar day.
37. Cloud Services from Microsoft
Should we use cloud services that are provided by Microsoft Ireland Operations Limited, Dublin, Ireland, in agreement with the clients, such are governed by the latest version of the Microsoft Cloud Agreement in addition to the latest version of the product descriptions, the online services regulations and the Service Level Agreement for Microsoft Online Services that we can make available to the client upon request.
38. Use of the Software by the Client
1. The client is granted non-exclusive rights in the software (such cannot be sublicensed or transferred) that are restricted to the term of the contract so that he can use the software conform with the contract.
2. The client is to adopt the precautions that are customary and reasonable within his sphere of influence, that are required in order to ensure that no unauthorised persons can gain access to the software. Such include the user IDs that he was notified of, tokens, passwords, etc. (“access data“). He shall inform us without delay should he have a suspicion that there is a possibility that unauthorised persons have gained knowledge of these access data and – where possible –, he shall secure the same by changing them. Should the access data he uses be misused, the customer bears the full burden of proof that he is not responsible for this misuse. We have an obligation to informing the client should we be in possession of the corresponding proof.
3. The Client is not to use the software for illegal purposes or in order to infringe third party rights. He shall especially refrain from all uses that could result in it being possible that we could be accused of violating valid laws or third-party rights. He shall release us from all third-party claims, including the reasonable costs that are incurred for a legal assessment and representation.
4. The Client has an obligation to notifying us of software defects without delay. Should he not act accordingly on grounds for which he is responsible, the client is to assume responsibility for any resulting damages or losses as contributory negligence. Should we be unable to remedy the problem as a result of the notification forbearance or delay, the client shall not be entitled to reduce the agreed remuneration partially or completely, demand compensation for the resulting loss or damage, or terminate the contract without notice on the ground of the existence of a defect. The client is to furnish proof that he is not responsible for the notification not having been made.
39. Non-performance of our Major Obligations
1. Should we be in default with the provision of the software for the first time, the client is entitled to repudiate the contract after he has granted us a reasonable period of time and such has expired unsuccessfully, i.e. we have not ensured that the software functions correctly for the first time during the additional period of time.
2. Should we not meet our obligations in part or in their entirety after we have provided the software in an operational state and the availability of the software is reduced for a contractual month, the agreed monthly flat-rate user fee is reduced proportionally for the period in which the client was unable to use the software to the agreed extent.
3. We are to furnish proof that we are not responsible for the grounds for the delayed provision or an availability of the software to an extent that is reduced when compared with the extent that we have a duty to provide. Should the client not have informed us of the lack of availability, he is to furnish proof that we have gained knowledge of the same in another manner should we dispute having knowledge thereof.
We issue an invoice for the fixed remunerations and advance payments against variable remunerations on an annual basis in advance. Upon an agreement being entered into regarding payments being made on account, we invoice variable remunerations on an annual basis in advance should the final statement be issued annually. We otherwise invoice variable remunerations in arrears on a monthly basis.
41. Remuneration adjustments
Clause 35 has corresponding validity.
42. Claims for Defects
1. Our strict liability for compensation pursuant to § 536a BGB on the ground of defects that existed at the time the contract was concluded is excluded, in as far as this does not concern a quality that we have warranted (warranty, § 276 (1) BGB).
2. A termination by the client on the ground of a non-granting of the contractual use of the service pursuant to § 543 (2), 1st sentence No. 1 BGB, is only permissible if he has granted us a reasonable opportunity to remedy the defect and this was unsuccessful.
3. The provisions of Clause 9 have validity otherwise.
The provisions of Clause 33 have corresponding validity.
44. Surrendering of Client Data upon Termination of the Contract
1. When requested to do so by the client, we provide him with the data that has been stored for him in the software in a digital form, these being in a digital form and in the same data format as the software, this being subject to the condition that this is technically possible and reasonable for us. The data are provided on a suitable data medium or by remote data transfer.
2. This service incurs an effort-related remuneration that is calculated on the basis of our latest reasonable hourly rates. When requested to do so by the client, we shall issue him with a corresponding offer and a description of the data record.
3. Should the client wish to have the data provided to him at the end of the contract, he is to inform us of this at least two weeks prior to the end of the contract at the latest. We are otherwise entitled to delete all the data that the client has stored in the software at the end of the contract.
Part VI – Services
The provisions in this Part VI have validity for the commissioning of services such as consultation, training courses or programming services.
45. Subject of the Agreement
1. We do not owe a specific service success in the scope of service agreements, we merely owe an activity. We provide our services according to the latest state of the art.
2. Should the client describe a specific success as the objective of our activity, we nevertheless have an obligation to attempting to achieve the objective required by the client and not the achieving of the objective in the meaning of a work.
3. If necessary, the services shall be provided on the premises of the client or on our premises in all other cases.
4. We retain the instruction rights for the employees that are deployed by us in the scope of the contract. The client is not entitled to issue instructions over and above the provision of technical stipulations that serve to achieve the objective of this agreement, this especially being with regard to the manner in which the service is to be provided outside professional skills.
46. Breaches of Duty
Should we culpably commit a breach of a contractual duty, the client shall be able to avail himself of his statutory rights. A period of limitation of one year is therefore deemed to be agreed to. The 2nd sentence does not have validity in cases of physical injury, death or health impairments or should we be subjected to an accusation of deceitful conduct or the assumption of a warranty.
1. Should the order not include any deadlines for the provision of our services, the parties shall agree on such without delay. Should the client not cooperate in this regard, we shall determine the deadlines at our equitable discretion.
2. Should we be prevented from providing our services due to a lack of cooperation on the part of the client or should he cancel determined deadlines without an important reason, we are entitled to invoice him with the full remunerations that we are entitled to for the service. The service shall then be provided by the deadlines agreed to with the client.
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