AGB
§ 1 General terms of contract
- Deliveries, services and offers of Dataciders GmbH (hereinafter referred to as Dataciders) are always subject to change based on these terms and conditions. Any conflicting terms and conditions of the customer shall not apply.
- Collateral agreements, assurances and other agreements made prior to or upon placement of a written order must also be made in writing to be effective. Amendments or supplements to this contract must be confirmed in writing by authorized representatives of the customer and Dataciders in order to be effective.
- The requirement of the written form can only be waived in writing for ancillary agreements, assurances, amendments or additions to the contract.
- If a sales partner of Dataciders has participated in an order, Dataciders does not recognize objections of the customer that derive from an additional contractual relationship with a sales partner, unless the contracts are related.
§ 2 Terms of delivery and scope of services
1. the delivery time is determined by the contractual agreement; as a rule, by a project plan communicated to the customer in the order confirmation. Compliance with the project plan by Dataciders requires that the customer has fulfilled its contractual obligations (in particular, timely payment of contractually agreed advance payments and the provision of all requested information deemed necessary by Dataciders for the fulfillment of the contract). Subsequent requests by the customer for changes or additions shall extend the project duration specified in the project plan to a reasonable extent.
(2) Dataciders shall not be responsible for delays in delivery and performance due to events that make the completion of the project significantly more difficult or impossible, such as force majeure, export and import bans, strikes or lockouts, difficulties in procuring materials, operational disruptions, even if they occur at Dataciders' suppliers or subcontractors. In such a case, Dataciders is entitled to extend the project duration specified in the project plan to a reasonable extent.
3. if Dataciders is finally unable to perform the contractually agreed service, even though it is not responsible for the impediments to performance, Dataciders may withdraw from the contract without this giving rise to any claims on the part of the Customer.
4 Dataciders reserves the right to make technical and design changes to descriptions and information in catalogs, brochures and written documents that become necessary in the course of technical progress or changes in the market situation to the extent customary in the trade.
§ 3 Retention of title
(1) Dataciders retains title to the hardware and software, as well as to the data created, until all claims to which Dataciders is entitled against the Customer now or in connection with the hardware and software in the future have been settled.
2. in the event of seizure or other impairments by third parties, the customer is obliged to immediately point out Dataciders' ownership. Furthermore, he is obliged to inform Dataciders immediately by telephone or fax and subsequently in writing.
3. if the hardware and/or software is processed or combined with other goods not belonging to Dataciders, Dataciders shall acquire co-ownership of the item in the ratio of the value of the hardware and/or software to the other goods.
4. the assertion of the retention of title and the seizure of the delivery item by Dataciders shall not be deemed a withdrawal from the contract.
§ 4 Payment obligations of the customer
1. if costs for installation, assembly and equipment are required to make the hardware and software ready for operation, these shall be determined according to the remuneration agreed with Dataciders in each case. They will be invoiced separately.
2. all support services, in particular installation and demonstration of operational readiness, instruction, training or consulting, shall be remunerated on a time and material basis. The hourly rates, travel and ancillary costs shall be based on the remuneration agreed with Dataciders.
3. price increases and increases in the statutory value added tax shall be borne by the customer if the hardware and software are delivered later than six months after conclusion of the contract as agreed. The same shall apply if the delivery is made more than six months after conclusion of the contract for reasons for which the customer is responsible.
4. information in the contract on financing, e.g. through leasing, are merely terms of payment. This shall not affect the contract as such.
§ 5 Set-off, assignment and right of retention
1. the customer may only offset a counterclaim if it is undisputed by Dataciders or has been legally established.
2. the customer may not assert a right of retention based on another contractual relationship with Dataciders.
§ 6 Transfer of risk
The risk of accidental loss shall pass to the Purchaser on the day of installation. In case of shipment, the risk of accidental loss shall pass to the Purchaser upon handover to the carrier.
§ 7 Obligation to examine and give notice of defects; warranty
1. the buyer's claims for defects presuppose that he has fulfilled his obligations to inspect and give notice of defects (§§ 377, 381 HGB). Irrespective of this obligation to inspect and give notice of defects, the Buyer must notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is sufficient to meet the deadline. If the buyer fails to carry out the proper inspection and/or report defects, our liability for the unreported defect shall be excluded. The software/data shall then be deemed approved with regard to the defect in question and Dataciders' performance shall be deemed accepted.
2. in the event of a defective delivery or service, Dataciders is entitled, at its discretion, to rectify the defect free of charge, make a subsequent delivery or replace the defective parts. If the rectification or replacement delivery ultimately fails, the customer shall be entitled to a reduction of the purchase price (reduction) or
rescission of the contract (rescission). The right of rescission exists in the case of software defects that could not be remedied after repeated attempts at rectification and/or subsequent delivery only if a reasonable user would also demand this in good faith.
Dataciders can also fulfil its obligation to rectify errors by providing a newer program version. In the event of serious errors, Dataciders may implement corrective measures or create a workaround solution for the customer until the error is corrected, if this is reasonable for the customer.
3. in the event of final rescission of the contract (withdrawal), the customer is obliged to return the installation media and the like as well as all copies of the software, including the data created, as well as the written materials to Dataciders or to delete and destroy them completely. The Customer must confirm to Dataciders in writing within two weeks that all existing copies have been deleted. Original software from third-party providers must be returned to Dataciders in complete condition without delay.
4 The customer may only use the delivered software on the hardware/software environment approved and declared suitable by Dataciders. If the errors that occur are due to circumstances for which Dataciders is not responsible, the warranty shall not apply. This applies, for example, in the event of malfunctions due to
use of unsuitable operating material, or if the customer has not complied with the installation requirements
5. the warranty shall lapse if the customer has made changes or interventions to the hardware and/or software or to the data created, unless the customer proves in connection with the error message that the intervention was not the cause of the error.
6. there is no warranty for used hardware. If a third party claims that its property rights, in particular copyrights, have been infringed by the software supplied by Dataciders, Dataciders shall indemnify the customer against claims for damages by such third parties. In the event of slight
negligence, Dataciders shall not be liable for compensation for other damages.
7 The customer is obliged to notify Dataciders immediately of any errors that occur during use in accordance with the contract in a comprehensible form, stating the information suitable for rectifying the error. At Dataciders' request, this report must be made in writing. The
customer must provide Dataciders with reasonable support in rectifying errors.
8. in the case of hardware and/or software, troubleshooting shall take place at Dataciders' headquarters. The customer shall deliver the hardware properly packaged, including the connecting cables. Dataciders shall send the Customer a corrective measure for transfer for the purpose of correcting errors in the software. The customer is obliged to insert the corrective measures sent into the existing programs or to transfer the corrected programs again and, if necessary, to convert files, provided that Dataciders clearly describes the steps to be taken and the customer can handle the transfer properly.
9 Dataciders assumes no warranty for defects that are caused or conditioned by software that was not created by Dataciders.
§ 8 Limitation
1. notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. however, if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Special statutory provisions for third-party claims for restitution in rem (§ 438 Para. 1 No. 1 BGB), in the event of fraudulent intent on the part of the seller (§ 438 Para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB) also remain unaffected.
3. the above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages.
§ 9 Liability
1. Dataciders is not responsible for content that the Customer makes available to Dataciders or that Dataciders creates at the express request of the Customer and contrary to any concerns expressed regarding legal admissibility. The Customer indemnifies Dataciders against any liability towards third parties and undertakes to compensate Dataciders for any damages incurred by Dataciders as a result of claims asserted by a third party due to a possible infringement of rights.
2. claims for damages arising from culpa in contrahendo, positive breach of contract and tort against Dataciders and its vicarious agents are excluded, except in cases of intent or gross negligence. If Dataciders is only guilty of slight negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damages.
3. the limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.
4. properties are only deemed warranted to the customer if this has been expressly agreed in writing between Dataciders and the customer under the designation "warranted property". Liability for data loss shall be limited to the typical recovery costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved. The minimum standard is a daily backup. In addition, the customer must carry out an additional, prompt and complete data backup before each maintenance service by Dataciders. The customer shall bear the risk of the required data backup. Dataciders is not liable for indirect damages and consequential damages, lost profits and lost savings.
5 The user documentation does not represent any warranted characteristics.
6. the responsibility for the selection of the hardware and software and the intended results is borne by the Customer. Dataciders is not aware of the specific use the Customer intends to make of the hardware and software.
7 Dataciders shall not be liable for errors of a direct or indirect nature caused by software that was not created by Dataciders.
8. the purchaser may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if Dataciders is responsible for the breach of duty. A free right of termination of the buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 10 Copyrights
1. the Customer acknowledges the copyright status of the software supplied by Dataciders, including the user documentation and other documents supplied by Dataciders, and regards them as trade secrets of Dataciders. The Customer grants Dataciders the unrestricted rights to publish and reproduce the data created.
2 Dataciders may make changes to the hardware and software insofar as these changes are not fundamental and the contractual purpose is insignificantly restricted as a result.
3. the customer shall receive the non-transferable and non-exclusive right to use the software programs provided and the data created by Dataciders. Transfer to third parties for the purpose of publication and/or reproduction is not permitted. The customer may only sell the copies to a third party if he waives the right to use the software programs and the third party undertakes to protect the program by written declaration to Dataciders and acknowledges the limits of the right to use the copies as they exist for the customer. In any case, the transfer of the reproductions to third parties requires the prior written consent of Dataciders.
4 The customer may not modify the software products. Dataciders does not owe the delivery of source programs. The making of copies, transcripts or other reproductions of the software products by the customer is only permitted for the customer's own use for internal backup and documentation purposes. The customer may only ever use the delivered software on one data processing system (configuration). Use is only permitted on the number of end devices specified in the contract and only for the maximum number of users specified in the contract. The transfer of the software products to another data processing system is only permitted with the written consent of Dataciders.
5 Dataciders generally provides software products as object programs. Even partial conversion into source programs by the Customer is not permitted. Dataciders' software products constitute trade secrets. An exception applies in the case of § 69 e) Copyright Act.
6. the customer may not rent, lend or otherwise make available to third parties software products of Dataciders without the consent of Dataciders. If the customer violates the provisions on software program protection specified in these terms and conditions, it shall be obligated to pay three times the amount of the license fee. If the Customer violates any of the provisions on software program protection contained in these Terms and Conditions, Dataciders shall be entitled to prohibit the use of the software program with immediate effect. In order to monitor the proper exercise of its right of use, the customer shall grant access to its business premises to an expert who has been commissioned by Dataciders and who is obliged to maintain confidentiality, subject to prior notice.
§ 11 Jurisdiction agreement
If the customer is a registered trader, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of Dataciders. However, Dataciders is also entitled to file suit at the customer's headquarters.
§ 12 Export control regulations
The export of the hardware and software is subject to German and US export control regulations. It requires the approval of the competent authorities.
§ 13 Partial Invalidity and Severability Clause
1. if one of the provisions of these terms and conditions is or becomes invalid, this shall not affect the validity of the remaining provisions.
2. invalid provisions shall be replaced by valid provisions that come as close as possible to the intended economic purpose of the provision.
