Supplements to the General Terms of Delivery and Service valid for the transfer of software from Krause-Biagosch GmbH


I. Scope of application

  1. These General Terms and Conditions (hereinafter referred to as "GTC") of Krause-Biagosch GmbH (hereinafter referred to as "K-B") apply to all contracts between the customer and K-B for the provision of standard software.
  2. Herewith the inclusion of the customer's own terms and conditions is contradicted, unless otherwise agreed. These terms and conditions shall also apply exclusively if K-B, being aware of the customer's terms and conditions that conflict with or deviate from these terms and conditions, makes delivery to the customer without any special reservation.
  3. Provisions of an individual agreement between K-B and the customer take precedence over the respective provisions of these GTC in the event of contradictions.

 

II. Conclusion of contract

  1. Product presentations and price lists of K-B are not binding, unless they become the content of a contractual agreement or an offer by K-B to the customer marked as binding.
  2. Contracts shall be concluded by offer and acceptance subject to these GTC. In the case of offers made by K-B to the customer, these are binding for a period of 30 days, unless otherwise specified in the offer. If the customer accepts the offer within the binding period (in writing, by fax or e-mail), the contract is concluded subject to these GTC.
  3. If the parties have agreed on special conditions, these shall not apply to simultaneously ongoing or future contractual relationships with the customer, unless expressly agreed otherwise.

 

III. Subject matter of the contract

  1. The status of the software provided by K-B is determined by the application documentation valid at the time of the conclusion of the contract. The software and the associated application documentation shall be provided in German, unless expressly agreed otherwise. There is no claim to multilingualism. The source code of the software is not part of the provided software.
  2. Installation, configuration, commissioning, training, maintenance of the software or any other services beyond the provision of the software are not part of the contract. For installation of the software, K-B refers to the installation instructions in the application documentation. It is recommended to conclude a contract for support in implementing the software in the customer's company and a maintenance contract.

 

IV. Granting of rights of use

K-B grants the customer the non-exclusive (simple), non-transferable, non-sublicensable, time-unlimited right to use the software for his own purposes within the company with the agreed number of concurrent users and/or - if agreed in the individual contract - for the agreed number of command instances, i.e. in particular to store and load, display and run the software permanently or temporarily, even if duplications are necessary. Leasing or sublicensing is not permitted. A "concurrent user" is any user who may use the software simultaneously (maximum number of users who may access the software simultaneously). Concurrent users (users) are persons (exclusively employees of the customer or persons acting on behalf of the customer) and any third-party software that accesses the licensed software.

  1. The Customer has the option to extend the rights of use of the Software purchased by him as follows:
    - Language extension
    - Right to transfer the license (transfer of the software to a third party with complete deletion of the software and any copies at the customer)
    - Change of the license server
    The prices according to the K-B price list valid at the time of the license extension shall apply.
  2. The customer is entitled to install the software on server hardware. Hardware within the meaning of these GTCs is any hardware, including virtualized systems.
  3. If the license server is changed, the software (licenses) may only be used on other hardware if it is ensured that no copy of the software is left behind and that it is not used on the original hardware or on any other hardware other than the new hardware on which the software is to be used in accordance with the contract.
  4. The Customer shall not be granted a processing right unless changes are permitted under mandatory statutory provisions.
  5. For third-party software (software not developed by K-B, e.g. Oracle products), the terms and conditions for granting rights of use of the respective manufacturer of the third-party software shall apply.
  6. The application documentation is intended for internal use only in connection with the use of the software. It may not be passed on to third parties unless it is passed on as part of a license transfer in accordance with Section 4.1.
  7. The Customer shall be entitled to make a reasonable number of backup copies of the Software provided solely for backup purposes. The copies of the software serving for proper data backup are part of the intended use.
  8. Copyright and other property right notices may neither be removed nor changed. They must also be transferred on every backup copy.
  9. It is the customers obligation, by means of appropriate technical and organizational measures, that the intended use of the software is ensured.

 

V. Customer obligations

  1. The customer has informed himself about the essential functional features of the software and bears the risk as to whether the software meets his wishes and requirements. The customer is responsible for setting up a functional hardware and software environment which is sufficiently dimensioned - even taking into account the additional load caused by the software - and which can be used by the customer. The customer shall observe the instructions given by K-B for the installation and operation of the software, in particular the system requirements and the software installation instructions.
  2. Customer shall take reasonable precautions in the event that the software does not work properly (e.g. by sufficiently regular data backups, fault diagnosis, regular checking of data processing results). Before installing the software, the customer shall make a suitable backup of his data.

 

VI. Prices and terms of payment

  1. The K-B price list valid at the time of the conclusion of the contract shall apply. The prices quoted are net prices and do not include the statutory value added tax applicable at the time.
  2. The remuneration is due for payment upon delivery of the software. Unless otherwise agreed, the invoice amount shall be payable 14 days after the invoice date without deduction. Packaging, delivery and shipping costs, customs duties, taxes and charges, if any, shall be charged separately or shall be borne by the customer.
  3. If software is made available for retrieval via a network, K-B shall bear the costs of making the software available for retrieval on the network, and the customer shall bear the costs for retrieval.
  4. In the event of late payment, K-B shall be entitled to default charges at a rate of 10 percentage points above the respective base interest rate. The other legal rights of K-B in the event of default of payment by the customer shall remain unaffected. If receivables are overdue, incoming payments shall first be credited against any costs and interest, then against the oldest receivable.

 

VII. Reservation of property rights and ownership

The granting of rights to the software is subject to the condition precedent of the date of full payment of the remuneration agreed for the provision of the software. Ownership of data carriers and other movable objects shall only pass to the customer upon full payment of the remuneration.

 

VIII. Terms of delivery and dispatch; transfer of risk

  1. K-B effects the delivery of software by either (a) providing the customer with a program copy of the software and application documentation on machine-readable data carriers or (b) making the software and application documentation available in a network and notifying the customer accordingly. The software is provided in executable form (object code).

  2. Unless a physical dispatch takes place, the time at which the software is made available in the network so that it can be downloaded and the Customer is notified thereof shall be decisive for compliance with any delivery dates and the passing of risk.

     

IX. Liability for defects

  1. The statutory provisions shall apply to liability for defects with the following proviso:
    - An insignificant defect shall not justify any claims for defects;
    - Claims for defects do not extend to such software that customer or a third party modifies without the consent of K-B. This does not apply if the customer proves that this modification is not the cause of the reported defect;
    - Claims for defects do not extend to software that the customer does not use in the agreed system environment, unless the customer proves that this use is not the cause of the reported defect.
    - K-B has the right to choose the type of supplementary performance (remedy of defects or replacement);
    - Supplementary performance by K-B shall not lead to a new start of the limitation period according to § 212 BGB;
    - the limitation period for defects shall be one year from the passing of risk, but this shall not apply in case of intent or fraudulent intent.
  2. The limitations of liability in clause 9.1 do not include the right of recourse according to § 478 BGB and no claims for damages and reimbursement of expenses which the customer may assert for defects according to the statutory provisions. Clause 10 shall apply to claims for damages and reimbursement of expenses.
  3. The obligation to examine and give notice of defects pursuant to § 377 HGB (German Commercial Code) shall remain unaffected.
  4. If the subsequent performance has been effected by way of a replacement delivery, the customer shall be obliged to return the defective product delivered first to K-B within 30 days - copies of the software may not be retained - and to pay compensation for the value of any advantages of use in accordance with the statutory provisions.
  5. If the customer has asserted claims for defects although there was no material defect, and if the customer is responsible for this, the customer shall bear the costs incurred by K-B as a result.

 

X. Liability of K-B

The following provisions shall apply to all contractual and statutory, including tortious, claims for damages and reimbursement of expenses of the customer against K-B for breaches of duty by K-B, one of its legal representatives or one of its vicarious agents:

  1. In the event of negligent breach of a material contractual obligation, liability shall be limited to the replacement of the goods and services provided by K-B at the time of the conclusion of the contract foreseeable, typically arising average damage. Essential contractual obligations are obligations which the contract imposes on K-B according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely.
  2. In all other respects the following shall apply:
    - Liability for negligent breach of duty is excluded.
    - In the event of loss of data, K-B shall only be liable for the expenditure that would have been necessary to restore the data if the customer had made proper and regular data backups.
  3. The limitations of liability set out in Clauses 10.1 and 10.2 shall not apply to claims based on intent or gross negligence, fraudulent intent, injury to life, body or health, to the extent that the Product Liability Act applies, or in the case of a guarantee promise, to the extent that the latter is not otherwise regulated in the guarantee declaration.

 

XI. Compensation, retention, assignment

  1. The customer shall only be entitled to set-off if the counterclaim is undisputed, legally established or acknowledged by K-B. Rights of retention and rights to refuse performance on the part of the customer are excluded, unless K-B does not dispute the underlying counterclaims or these have been legally established.
  2. Any assignment by the customer of claims arising from the contract concluded with the customer, in particular any assignment of any claims for defects by the customer, is excluded.

 

XII. Applicable law, place of jurisdiction

  1. All legal relations between the parties shall be governed by the law of the Federal Republic of Germany, excluding conflict of laws and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be the registered office of K-B. Contract language is German.