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Terms and Conditions

§ 1 - § 11 General Section

§ 1 General Section

Our deliveries, services and offers are based on these terms and conditions. They shall also apply to all future business relations, even if they are not expressly incorporated again. References made by the customer to his terms and conditions are hereby rejected insofar as they deviate from our general terms and conditions. Individual agreements always take precedence over these general terms and conditions.

§ 2 Conclusion of the contract

(1) All offers - including price quotations - are subject to confirmation and non-binding. We shall be bound by special offers prepared in writing for 30 calendar days.

(2) The customer is bound to his application for 4 weeks from receipt by us. In principle, orders require our written confirmation in order to be legally effective. If we do not refuse acceptance within 4 weeks of receipt of the order in Angelburg, however, the confirmation shall be deemed to have been granted.

(3) Subsidiary agreements, amendments and supplements to a contract are only valid if we confirm them in writing. Guarantees are generally not given. They shall only exist if we have expressly declared this to the customer in writing.

(4) The designations and specifications defined at the time of conclusion of the contract represent the state of the art at that time. They do not constitute quality agreements. We expressly reserve the right to make design changes for deliveries within the scope of this contract, insofar as these changes are not of a fundamental nature and the contractual purpose is not significantly restricted. The customer must be informed of this beforehand.

(5) If the customer does not fulfill the contract, we are entitled to claim damages instead of performance in the amount of 30% of the gross order value. The customer is expressly entitled to provide evidence that no damage or damage of this amount has been incurred.

(6) The buyer bears the responsibility for financing the purchase price (including leasing or similar). ACTIWARE GmbH does not assume any obligations in this connection, not even for leasing brokerage.

§ 3 Prices/remuneration

(1) All prices are net prices. The respective statutory sales tax is to be paid additionally.

(2) If there are more than 4 months between the conclusion of the contract and the agreed and/or actual delivery date, our prices valid at the time of delivery or provision shall apply.

(3) The costs for the installation of technology, operating systems, databases and user solutions shall be determined in accordance with the applicable price list and shall be invoiced separately. The price list shall be made available to the customer upon request.

(4) Remuneration does not include training and implementation/installation of the software. For both standard and custom software and individual adaptations of standard software, we train the customer in the operation of the software on the relevant system and the handling of the hardware and software at a special charge.

(5) We are entitled to assign claims to third parties after prior information.

§ 4 Delivery times

(1) We shall strive to meet the deadlines specified in the order. If we are in default, the customer may withdraw from the contract or claim damages in accordance with the following provisions.

(2) The duration of the grace period to be set by the customer shall be 6 weeks in the case of contracts for custom software, or 4 weeks otherwise. The period of grace shall commence upon receipt by us of the notice of grace.

(3) Extended liability in case of delay due to chance is excluded.

§ 5 Passing of risk

If the contract (among other things) deals with the dispatch of goods, the risk shall pass to the customer upon provision to the person performing the transport or as soon as the consignment has left our premises for dispatch. If dispatch is delayed through no fault of our own, the risk shall pass on the day on which the goods are made available. If goods are taken back, the customer bears the risk until we have received them.

§ 6 Liability

(1) We shall only be liable - for whatever legal reason - if damage has been caused by our legal representatives or vicarious agents by culpable violation of a fundamental contractual obligation in a manner endangering the fulfillment of the purpose of the contract or if such damage has been caused by gross negligence or intent. This does not apply to injury to life, body and health. The claim for damages for the breach of fundamental contractual obligations is limited to the foreseeable damage typical for the contract; this also applies to gross negligence, but not in cases of injury to life, limb and health.

(2) The remaining liability for negligent damage caused thereafter is limited in amount to the typical or foreseeable maximum amounts for comparable transactions of this type, but to the following maximum amounts: - € 3,000,000.00 for personal injury; - € 1,000,000.00 for property damage and pure financial loss;

(3) Our liability for damage caused by the delivery object/scope to legal interests of the customer is excluded. This shall not apply in the case of intent or gross negligence or in the case of injury to life, limb or health.

(4) The provisions of § 6 shall apply to damages in addition to performance and in lieu of performance, irrespective of the legal basis, in particular due to defects, the breach of duties arising from the contractual obligation or from tort, as well as in the case of compensation for futile expenses (see § 7 for delay in delivery). In the period in which the customer is in default and we cease performance, liability shall be suspended. Our liability shall be reduced or cancelled insofar as the customer could have prevented the occurrence of damage through reasonable measures, in particular program or data backups.

§ 7 Delivery and performance obligations

(1) The day of delivery in the event of an obligation to dispatch is the day of dispatch. If dispatch is delayed through no fault of our own, the day of provision shall be deemed the day of delivery. In the case of appointments, we shall only be in default by means of a reminder. Partial performances are permissible as far as this is reasonable for the customer according to the circumstances of the individual case.

(2) If we are prevented from performing deliveries or services on time by events for which we are not responsible, the period shall be extended accordingly. This shall also apply to disruptions in our own operations which could not be avoided despite reasonable care, disruptions in the operations of our suppliers, including transport companies, disruptions to transport routes, shortages of raw materials and intervention by official authorities.

§ 8 Retention of title

(1) The retained goods delivered shall remain our property until full payment of all claims to which we are entitled against the customer arising from the business relationship, including ancillary claims, claims for damages and encashment of checks and bills of exchange. This shall also apply if the price for a specific product designated by the customer has been paid. In the case of a current account, the retention of title shall serve as security for our balance claim. The assignment of rights by us shall only become effective at the time of complete payment. If the value of the retained goods/rights exceeds our claims by more than twenty percent, we shall be obliged, at the customer's request, to transfer ownership of the retained goods/ unconditional assignment of rights, whereby we shall determine the individual retained goods/rights to be transferred. The customer is entitled to use the retained goods in the ordinary course of business and may not resell them.

(2) In the event of breaches of duty by the customer, e.g. default of payment of more than one month or suspension of payments, we shall be entitled, without setting a deadline, to take possession of the goods subject to retention of title, to satisfy our claims from the goods subject to retention of title by private treaty and to enter the premises of the customer for this purpose, as long as insolvency proceedings have not yet been opened and orders of the insolvency court do not conflict. The resulting costs shall be borne by the customer. To secure our rights, we are also entitled to use a program block. If we take back goods on the basis of retention of title, this shall only constitute a withdrawal from the contract if we expressly declare this or utilize the goods.

(3) Pledging or transfer by way of security of the retained goods or conditionally assigned rights are not permitted. The customer must inform us immediately of any access by third parties to the reserved goods. The costs of interventions against the access of third parties shall be borne by the customer unless they are reimbursed by the third party.

(4) The customer shall store the retained goods for us free of charge. He must adequately insure them against the usual risks (fire, theft, water, etc.). The customer hereby assigns to us his claims for compensation to which he is entitled against insurance companies or other parties obligated to pay compensation for damages of the aforementioned kind to the amount of the value of the security property. We accept the assignment.

§ 9 Payment

(1) Our employees are not entitled to collect cash. Otherwise, payments with discharging effect can only be made directly to us or to a bank or postal giro account specified by us.

(2) We expressly reserve the right to reject checks and bills of exchange. Their acceptance is always only on account of performance. Discount and bill of exchange charges shall be borne by the customer and are due immediately.

(3) Payments shall first be set off against any costs, then against interest, then against the principal debt, firstly against the unenforceable debt, then against the older debt.

(4) If the customer fails to meet his payment obligations, in particular if he fails to honor a check or bill of exchange or ceases payments, or if we become aware of other circumstances which call his creditworthiness into question, we shall be entitled to demand payment of the entire remaining debt, even if we have accepted bills of exchange or checks. In this case, we shall also be entitled to demand advance payments or securities in respect of all other contracts, as well as to withdraw from these contracts or demand damages after a reasonable period of grace.

(5) In the event of circumstances which become known to us after conclusion of the contract and which give rise to justified doubts concerning the creditworthiness of the customer, we shall be entitled to demand immediate payment of all our claims, including bills of exchange. This applies in particular to credit rating downgrades through economic information files (from a credit rating classification as "strained") or in the event of at least a comparable deterioration of the rating in commercial credit insurance. We shall then be entitled to demand advance payment; the customer may instead demand performance step by step at the location of the goods.

(6) The customer shall only be entitled to set-off if the counterclaim is undisputed or has been legally established.

§ 10 Support by the customer

(1) The customer shall immediately provide us with all information required for the performance of our contractual obligations.

(2) Upon request, the customer shall provide us with test data of sufficient type and quantity and shall evaluate and check the test results. The customer shall grant the service personnel unhindered access to the machines and equipment and shall grant them the necessary machine time to carry out the service free of charge.

(3) Upon request, the customer shall provide us with sufficient test times.

(4) Any additional services required as a result of incorrect or incomplete information provided by the customer shall be at the customer's expense. The same applies to delays.

(5) The customer is obliged to follow care and maintenance instructions and in particular to replace deteriorated data carriers in good time. The consequences of non-observance shall also be borne by the customer during the warranty period.

(6) We are entitled to engage subcontractors to perform our contractual obligations.

§ 11 Place of fulfillment, place of jurisdiction and partial invalidity

(1) The place of fulfillment for delivery and payment shall be Angelburg, unless the nature of the contract provides otherwise.

(2) If the customer is a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the competent court for Angelburg.

(3) Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, void, illegal or unenforceable, this shall not affect the validity of all other provisions or agreements. The ineffective provision shall be replaced by an effective provision by mutual agreement which serves the business objective pursued by it to the closest extent.

(4) The headings only serve the purpose of providing a better overview and have no material significance, in particular not that of a final provision.

§ 12 - § 17 Software and software services

§ 12 Object of the agreement

(1) Depending on the order, the object of the agreement shall be: a) the provision of operating system software (standard software) in accordance with documentation and/or service description; b) the provision of other standard software in accordance with documentation and/or service description; c) the development and provision of custom software and individual adaptations of standard software in accordance with the customer's order; d) the modification of software and other software services; in accordance with the respectively valid price list.

(2) Details regarding the object of the agreement (delivery time, number, designation of the software, license fee, remuneration, etc.) shall be derived from the agreement.

(3) We shall provide the customer with the latest version of the software/service description at the time of delivery. In principle, the customer has no claim to the publication of source or source codes.

§ 13 Scope of services

(1) We provide operating system software to the extent that the functionality of the system and the performance of maintenance is guaranteed.

(2) We shall provide the customer with standard software including the associated application documentation on machine-readable recording media designated in the order or in electronic form.

(3) In the case of custom software and individual adaptations of standard software, we carry out programming and necessary tests based on the customer order. We also create the user documentation. If in individual cases an extensive planning phase is necessary for the preparation of a functional specification, a separate written agreement shall be made.

(4) The acceptance of custom software and individual adaptations shall take place following a functional test, which begins within three working days after we have informed the customer of the functionality.

(5) After a successful functional test, the customer must declare acceptance in writing without delay. The functional test shall be deemed to have been successfully performed if the software meets the contractually stipulated requirements in all essential respects. Non-essential deviations from the contractually stipulated requirements discovered during the functional test do not entitle the customer to refuse acceptance.

(6) If the customer does not immediately give notice of acceptance, we may set him a period of two weeks in writing to submit this notice. Acceptance is deemed to have been declared if the customer has not specified the reasons for the refusal within this period and he has been informed of this possible consequence after expiry of the deadline upon setting a deadline. A completion certificate in accordance with § 641a BGB (German Civil Code) is equivalent to the acceptance. In addition, acceptance shall be deemed tacit if the customer has used the software productively for a period of three weeks after successful functional testing, unless he expressly declares within this period that he refuses acceptance.

(7) The above provisions shall apply mutatis mutandis to program changes and other software services.

(8) Performance specifications etc. contained in system analyses, documentations etc. are only descriptions and do not constitute quality agreements. A separate agreement is required for the contrary.

§ 14 Remuneration

(1) The amount of remuneration for the development and provision of custom software and the adaptation of software as well as for other services shall be based on the hourly rates of the respective employee agreed in the contract. We are entitled to request advance payments for self-contained parts within the meaning of § 632a BGB (German Civil Code).

(2) The remuneration for the provision of standard software is based on the license fee included in the order.

(3) Additional copies of documentation and other software documents shall be charged separately.

(4) Otherwise, we shall be entitled to charge for all other services and independently billable sections of services immediately and, if applicable, daily. The invoiced amounts are due immediately upon receipt of the invoice.

§ 15 License

(1) We grant the customer the non-exclusive and non-transferable right to use the software and documentation against payment of the agreed remuneration.

(2) The customer is entitled to use the provided software exclusively on the data processing unit specified in the order. If this data processing unit is temporarily not operational, the customer has the right to use the software during this period on another central data processing unit with our prior written consent. The use of the software on data processing units other than those specified in the order requires our written consent in all other cases. The use of the software in a network or on a computer system where simultaneous use by several users is possible requires our written consent in any case. In case of an enlargement of the computer system used by the customer or in case of a change of the computer, the conclusion of a new license agreement is necessary.

(3) The customer shall treat the software and documentation confidentially and take the necessary security precautions to protect them from unauthorized disclosure. If the customer installs the software on hardware systems other than the agreed hardware systems with our written approval, our support will be charged pursuant to our price list for this or for the installation of an operable system.

(4) The license to use standard software is subject to the condition precedent of payment of the agreed remuneration. If the customer fails to pay despite a reminder, we can prohibit him from using the software and demand the deletion of all data carriers on which the program and the data created with it are located. We are entitled to use a program block to secure our rights and the license restriction.

(5) The customer is not permitted to copy software and/or documentation in whole or in part without our written consent or instruction. Any disclosure to third parties is prohibited. The contractual use only includes the creation of a backup copy of the software provided. All copies must bear the manufacturer's copyright mark in the same way as the originals supplied. The customer is not entitled to use a trademark of the program or to grant sublicenses. Upon termination or reversal of the contract, data carriers supplied by us as well as all copies made by the customer must be returned or deleted. At our request, the customer shall provide us with written confirmation that the data carriers and copies have been deleted.

(6) The above shall apply mutatis mutandis to the use of our know-how. Documentation provided in printed form may only be reproduced with our written consent.

(7) The customer is not entitled to pass on the software and the documentation to third parties or to make them accessible to third parties without our written consent.

(8) The customer is entitled to adapt and modify the software and documentation for his special purposes at his own expense and risk with our written consent. If necessary, we will provide support against a separate charge. The parts of the software and documentation modified by the customer shall also continue to be subject to the provisions of the contract. However, we reserve the right to reclassify the software into another category. The consequences for liability for defects must be observed.

§ 16 Software maintenance and servicing

A maintenance contract can be concluded with us for software maintenance and servicing or with an authorized partner after the warranty period has expired. The provisions of these general terms and conditions shall then apply as a supplement and as a priority in the event of deviations.

§ 17 Warranty für software

(1) The parties agree that it is not possible according to the state of the art to develop programs in such a way that they are free of errors for all conditions of use. For each software offered by us, we maintain an up to date performance description which indicates the intended use and the conditions of use of the program.

(2) For standard software in the version provided to the customer, purchase law shall apply additionally. For custom software, the law on contracts for work and services shall apply in addition. For training courses, supplementary service contract law shall apply.

(3) Our liability for defects in used goods is excluded altogether. Our liability for defects in new software shall become statute-barred after twelve months with respect to customers who are not consumers; in deviation from this, claims for damages by the customer due to material defects shall become statute-barred after fifteen months. The period of limitation shall always commence upon receipt of the goods by the customer. The customer shall notify us immediately after discovery of any defects that have not already been listed in the acceptance declaration. The timely notification must be combined with a written description of the defect.

(4) The customer shall not be entitled to any right of retention with regard to our claims which do not relate to the same contractual object on account of his aforementioned rights.

(5) The liability for defects shall lapse if the customer changes programs himself or has them changed by third parties without our written consent, without this requiring delay on our part in order to enable contractual use of the software. Sentence 1 shall not apply if the customer provides evidence that defects were not caused by the changes made by him or the third party.


Last updated 2015-07-08