Terms and Conditions
Heidler Strichcode GmbH
General Terms and Conditions der HEIDLER Strichcode GmbH
Status on 14.09.2024
1. Scope of application / Amendments general terms and conditions
1.1.The provisions of these General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all contracts for the purchase and rental of software, hardware and accessories, software support (software maintenance) and the provision of IT services between us (Heidler Strichcode GmbH) and the customer. This shall also apply to future contracts, even if reference is no longer made to the GTC.
1.2. When concluding a software support contract, the provisions in sections 24 – 33 of these GTC shall take precedence over the other GTC provisions.
1.3 In the event of contradictions, the provisions of our order confirmation shall take precedence over the provisions of the GTC. If reference is made in the order confirmation to other documents such as appendices in addition to our GTC and these contain provisions that deviate from the order confirmation or the provisions of our GTC, these shall only take precedence if this is explicitly stated with reference to the subordinate provision. Appendices to the GTC shall apply subordinately in the event of contradictory provisions.
1.4. Our General Terms and Conditions apply to companies as a natural or legal person or a partnership with legal capacity within the meaning of Section 14 of the German Civil Code (BGB), which acts in the exercise of its commercial or independent professional activity, as well as to legal entities under public law and special funds under public law within the meaning of Section 310 (1) BGB.
1.5. Amendments or supplements as well as conflicting or deviating General Terms and Conditions of Contract of the customer shall only apply if we have expressly agreed to them at least in text form. If the customer does not agree to this, he must inform us of this immediately, at least in text form. Our GTC shall also apply if we perform the service without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our GTC.
1.6. We are entitled to adapt provisions of our GTC in accordance with the following requirements. In particular, the right to make adjustments shall extend to changes in relation to (i) technical developments, (ii) changes to the legal framework, (iii) adjustments to the regulations on the handling of personal data, (iv) the elimination of a subsequent imbalance in the services to be provided to each other or (v) the elimination of loopholes (e.g. in the event of unforeseeable, changed circumstances). We shall notify the customer of the adjustments in text form (e-mail) no later than six (6) weeks before they come into effect. The customer may object to the adjustments at least in text form within four weeks of receipt of the notification, otherwise the adjustment shall be deemed approved. We will inform the customer of this in the notification of the amendment to the GTC. In the event of an objection by the customer, we are entitled to terminate the contract concluded with the customer extraordinarily in text form within a period of two weeks, which begins with the notification. Adjustments to our GTC that include service extensions, linguistic corrections, clarifications or rewording without changes in content or legal changes do not constitute adjustments within the meaning of this provision. We shall inform the customer in text form about service extensions.
General regulations
2. Conclusion of contract / Subcontractor
2.1. A contract is concluded with our order confirmation (acceptance) of your order in response to our offer.
2.2. We are also entitled to have the contractual services owed by us performed by subcontractors. In relation to our customers, we are responsible for the actions of the subcontractors commissioned by us as for our own actions.
3. Service provision / Service deadlines / Force majeure
3.1. We shall provide the contractual services in coordination with the customer on the dates agreed in text form. Deadlines for the provision of services may only be agreed by us through the management or project manager.
3.2. As long as we are prevented from providing the service due to an unforeseen, extraordinary event that we cannot avert even if we exercise reasonable care (“force majeure”), in particular in the event of natural disasters, epidemics, pandemics (such as Covid-19), energy supply or operational disruptions, energy shortages, blockades, embargoes, official orders, legal prohibitions, labor disputes or other cases of force majeure, the performance periods shall be deemed to be extended accordingly by the duration of the hindrance and by a reasonable start-up period after the end of the hindrance (“downtime”). There shall be no breach of duty for the duration of the downtime. We shall inform the customer of such downtimes and their expected duration without delay. As long as we are unable to provide contractual services due to force majeure, the customer shall also be released from the obligation to perform. If the force majeure lasts continuously for more than two months or if it becomes impossible for us to provide the service in cases of force majeure, the customer and we shall be permanently released from the respective performance obligations owed.
4. Change Requests
4.1. A change request (CR) is defined in particular as changes to agreed requirements, new services or extensions that are likely to result in additional expenses.
4.2. CRs from the customer regarding the services to be provided by us must be sent to us by e-mail. We are entitled to reject the customer’s CR if its implementation is not reasonable for us in the context of contract fulfillment. We must inform the customer of this immediately after testing the CR. CRs are excluded from the start of the test procedure.
4.3. If we consider the CR to be feasible and reasonable, we shall submit a non-binding offer to the customer for the implementation of the CR, including performance dates. The customer must respond to the offer promptly. The service ordered by the customer in response to our offer shall become part of the contract with our order confirmation, also with regard to the performance dates listed. Any delays caused by the examination of the CR and up to the acceptance or approval of the offer, such as downtimes within the framework of the fulfillment of the contract, shall extend the contractually agreed execution period appropriately.
4.4. The dates affected by the change procedure shall be postponed, taking into account the duration of the inspection and the duration of the CR to be performed plus a reasonable start-up period, unless our order confirmation in response to the customer’s order contains corresponding provisions on the postponement of the performance time. We shall inform the customer of new deadlines at least in text form. If no order is placed in response to our non-binding offer or if we do not accept the customer’s order, the original scope of services shall remain unchanged.
4.5. Our activities for the examination of the CR, the preparation of a concept or the preparation of an offer as well as any downtimes shall be borne by the customer in accordance with the prices listed in the agreed price list.
5. Obligations of the customer to cooperate
5.1. The contracting parties shall work together in a spirit of trust. If a contracting party recognizes that information and requirements, whether its own or those of the other contracting party, are incorrect, incomplete, unclear or impracticable, it must inform the other contracting party of this and the recognizable consequences without delay. The contracting parties shall then endeavor to find a solution that is in their best interests.
5.2. The cooperation of the customer is essential for the performance of the contractual services owed by us. When we perform the contractually owed services, the customer must in particular provide us with the cooperation obligations listed in sections 5.2. lit. a.-h. free of charge:
a. The customer shall provide the necessary number of competent contact persons with decision-making authority for the duration of the project and contract. The customer shall make decisions necessary for the implementation of the project within a reasonable period of time according to our communicated decision-making requirements.
b. The customer undertakes to support our activities required within the scope of the contractual services to be provided to the best of its ability. This includes, in particular, active participation in all meetings. The customer shall ensure that all documents necessary for the performance of the work are submitted to us in good time and that the necessary technical facilities are in place. If necessary, the customer is obliged to provide test and real data or to enter real data in good time. The dates for the provision shall be mutually agreed during the project implementation. The handover shall take place in a format to be agreed. The customer shall be responsible for the quality of the data. The customer shall also inform us in good time of all information, processes and circumstances (collectively “information”) required for the project – in particular those that only become known to the customer during the course of the project. At our request, the customer shall confirm the accuracy and completeness of the information provided by him by e-mail.
c. If it is unclear which system component is producing a malfunction, the customer shall carry out an analysis of the software environment together with us and – if necessary – involve third-party companies with the necessary know-how regarding the software environment after consultation with us. We shall bear the reasonable costs for this if it turns out that the misconduct is attributable to the software supplied by us. Otherwise, we shall be entitled to charge the customer for the costs incurred.
d. If the customer does not have the necessary rights of use to the documents provided to us (in particular information), he shall inform us of this immediately upon handover or if he becomes aware of this at a later date. In the event of claims asserted against us by third parties due to the asserted infringement of third-party rights, the customer shall indemnify us against liability upon first request.
e. The customer must create the technical and organizational conditions that enable us to provide our services under the contract remotely (e.g. TeamViewer, client VPN connection from us to the customer) If the built-in Teamviewer version is not supported by the customer’s system, the customer must provide us with an alternative remote maintenance access such as RDP via VPN/Citrix, Anydesk or similar. Excluded from this are video chat applications with split screen such as Microsoft Teams, Zoom, GoogleMeet or similar). The customer shall provide the necessary technical requirements for this at its own expense. If we carry out work directly at the customer’s premises, the customer shall provide us with a PC with network and Internet access. If necessary, the customer shall also provide us with documents with examples of defects and data material, test data, as well as competent or trained employees for queries in good time, free of charge and to a suitable extent, unless this is unreasonable for him.
f. Before using the contractual software, the customer shall test it thoroughly to ensure that it is free of defects and can be used in the existing hardware and software configuration. This obligation shall also apply to software that the customer receives as part of defect rectification and software support. Any defects that occur must be reported by the customer by e-mail – or subsequently in the case of telephone notification – by competent and trained employees. The customer shall document the description of the defect to the best of his ability in a comprehensible manner, stating the detailed circumstances of its occurrence, its effects and – insofar as the customer can make statements in this regard – the causes. The description of the defect must be communicated to us within a reasonable period of time after the defect has been identified.
g. Any cooperation services and additional expenses incurred by us in response to a corresponding order shall be remunerated by the customer in accordance with the agreed remuneration rates.
h. If the customer does not fulfill an obligation to cooperate, unless this is not necessary for a service owed by us, we shall be permitted to temporarily suspend the provision of the service until this obligation to cooperate has been fulfilled. Agreed completion dates shall be postponed accordingly plus a reasonable start-up period. If the customer fails to comply with the obligation to cooperate even after a reasonable deadline has been set with a threat of refusal, we shall be entitled to terminate the contract with immediate effect and to invoice all work incurred up to that point on a time and material basis in accordance with the remuneration agreed between the parties or in accordance with our current price list.
6. Inspection
6.1. If the activities owed by us are services under a contract for work and services, these shall be accepted by the customer in sections upon performance of the service in accordance with the following provisions. After completion of the overall service or if completed partial modules can be used by the customer, we shall inform the customer of the respective readiness for acceptance. The acceptance or partial acceptance test of work services by the customer requires an immediate functional test in accordance with the requirements agreed upon conclusion of the contract or the CR commissioned in the course of the project. The functional test shall be deemed to have been carried out successfully if the services under the contract for work and services have essentially been provided. Special acceptance procedures can be defined by the project managers. Partial acceptance only refers to the absence of significant defects in the partial performance. The interaction of the partial services (overall functionality) is only determined upon acceptance of the overall service.
6.2. If there are no significant defects in the contractual services that prevent acceptance, the customer must declare acceptance of the contractual services immediately after the acceptance test has been carried out. If the customer does not consider the work services provided to be in accordance with the contract, he must notify us of his complaints by e-mail without undue delay (Mon. – Fri.) after they have been identified. If the customer has identified at least one significant defect in the course of acceptance, he shall be entitled to refuse acceptance with reference to this defect by means of a declaration within the period in accordance with sentence 2, at least in text form.
6.3. If the customer complains about the services in due time and in accordance with the contract, we shall remedy existing defects within a reasonable period of time within the scope of our operational capacity.
6.4. Acceptance shall also be deemed to have taken place if the customer does not specify the reasons for the refusal of acceptance within the period pursuant to clause 6.2. after our request, at least by e-mail. Acceptance shall also be deemed to have taken place if the customer begins productive use of the services provided by us under the contract for work and services for a period of more than 10 working days.
7. Data backup
The customer shall regularly back up all of its data, structures and programs – including software not covered by the contract – in accordance with the state of the art and in line with operational requirements, in particular before we commence any work, such as defect rectification work or the installation of updates. The customer shall ensure that the current data from databases held in machine-readable form can be reproduced with reasonable effort. We shall inform the customer in good time of the performance of the above activities.
8. Rights of use to work results
8.1. Documentation, electronic presentations and other documents that we create as part of the fulfillment of the contract must be provided to the customer on request in copy for contractual use for the customer’s own purposes. The customer is obliged to observe existing statutory property rights.
8.2. Upon payment of the agreed remuneration, we shall grant the customer a simple, permanent, non-transferable right to use the work results for its own purposes in accordance with their intended purpose.
8.3. We grant the customer a non-exclusive right to use customized software or software programming in object code (hereinafter referred to as “software programming”) for the intended purpose upon full payment of the agreed remuneration. Until the remuneration has been paid in full, we transfer to the customer a simple right to use the software programming, which may be revoked if payment is more than 30 days overdue.
9. Confidentiality / reference naming
9.1. Insofar as the contracting parties have concluded a non-disclosure agreement (NDA), its provisions shall take precedence over the following provisions. In addition, the contracting parties undertake to keep confidential all business secrets or information designated as confidential (collectively referred to as “information”) that they receive or become aware of from the other party during the performance of the contract for the duration of the performance of the contract, including for a further three years after the end of the contract, and to oblige the respective employees accordingly. The Information may not be made accessible to third parties not involved in the execution of the contract. The contracting parties shall safeguard the information in the same way as they do with their own information worthy of protection. Companies affiliated with the contracting parties within the meaning of §§ 15 ff. AktG are not third parties within the meaning of this provision.
9.2. The obligations of the Parties set forth in Section 9. 1 shall not apply to information which (i) was already in the public domain or known to the receiving party at the time of its communication by the disclosing party; (ii) became public knowledge after its communication by the disclosing party through no fault of the receiving party; (iii) which the receiving party can prove to have received from a third party in a non-unlawful manner and without restriction as to confidentiality or use; (iv) which has been independently developed by the receiving party without use of the disclosing party’s information; (v) which is required to be disclosed by law, governmental order or court decision, provided that the receiving party promptly informs the disclosing party and assists the disclosing party in defending against such orders or decisions; or (vi) to the extent that the receiving party is required to disclose such information. (vi) to the extent that the receiving party is permitted to use or disclose the information by mandatory law or under the contract between the parties.
9.3.Both contracting parties are permitted to name the other party as a reference contracting party and to use its logo for this purpose. Both contracting parties may revoke the rights pursuant to sentence 1 with a transitional period of four weeks with effect for the future, at least in text form.
10. Data protection / Data security / Data analysis / Supplementary conclusion of order processing contract
10.1. We will comply with all applicable data protection regulations – in particular the General Data Protection Regulation (GDPR) and the Federal Data Protection Act – as part of the fulfillment of the contract. Details on data processing and the rights of data subjects can be found in our data protection information at https://heidler-strichcode.de/www/DSI.html
10.2. The contracting parties shall also impose the data protection obligations on their employees and any subcontractors used. The customer consents to the data analysis of company-related – non-personal – usage data such as, in particular, modules used, volume of packages sent / period / destination / service, number of active users, time of last use, program versions used, customer no., configuration parameters, metadata freight cost optimization, for the improvement of the software, control of contractual software use, user-friendliness and security. The consent includes our right to make the usage data usable for other customers of ours in anonymized form while maintaining the confidentiality obligations in Section 9.1.
10.3. With regard to the processing of personal data within the scope of the GDPR by us on behalf of the customer, the contracting parties shall conclude, together with the software transfer agreement, the software support agreement or the agreement for the provision of IT-specific services, the order processing agreement (AVV) signed by us in accordance with Art. 28 GDPR, which can be accessed and downloaded at https://heidler-strichcode.de/vertrag-zur-auftragsverarbeitung/ . The customer must inform us directly of the persons authorized to issue instructions in each case.
11. Remuneration and terms of payment
11.1.The amount of the remuneration and the terms of payment (payment dates and the date from which our services are invoiced to the customer) are set out in our order confirmation.
11.2.In addition to the agreed remuneration, we are entitled to reimbursement of incidental costs and expenses, in particular the reimbursement of reasonable travel and accommodation costs. The ancillary costs are also listed in our price list.
11.3.If we have provided all contractually owed services, but the customer has not fully complied with his obligations to cooperate and therefore the contractual service (e.g. software, hardware, IT system) cannot yet be used productively, we are entitled to invoice the services provided in accordance with the contract.
11.4 The remuneration owed for software rental with included software support shall be paid monthly or annually – pro rata temporis – in advance as specified in the order confirmation. The date of value date on our specified account shall be decisive for the timeliness of a payment.
11.5. If the customer defaults on his payment obligation, we shall be entitled to claim default interest and a lump sum for default damages in accordance with the statutory provisions. This shall not affect our right to assert further claims for damages, such as in particular higher interest, additional costs and appropriate reminder fees. Bank costs incurred by us due to incorrect account details or unjustified rejection can be passed on to the customer, unless the customer is not responsible for the incorrect details. However, the customer is entitled to prove that we have incurred no or less damage.
11.6.If the customer is in arrears with a payment, we are entitled, after setting a reasonable deadline of at least 14 calendar days, to slow down the response and processing times of the rented software for as long as no payment is made or to block the use of the software. The obligation to pay the agreed remuneration shall remain in force even during the slowdown or blocking due to the delay in payment.
11.7. The agreement of any discount on remuneration is subject to a condition subsequent in the event that the customer defaults on payment of the remuneration owed.
11.8. The customer must raise objections to our invoices within a period of eight weeks after receipt of the invoice, at least in text form, to the office indicated on the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. We shall specifically draw the customer’s attention to the significance of his behavior when sending the invoice.
11.9. After each contract year has expired, we are entitled to adjust the support fee listed in the order confirmation, the usage fees for software rental (subscription) and the remuneration rates with effect from the beginning of a new contract year at our reasonable discretion to the development of the costs that are decisive for the calculation of the remuneration are. An increase in the remuneration or a reduction in the remuneration must be made if, for example: B. increase or decrease the costs for energy, transport, the use of communication networks or wage costs or other changes in the economic or legal framework, such as. B. the price index for IT services determined by the Federal Statistical Office compared to the index level at the time the contract was concluded or the last remuneration adjustment could lead to a changed cost situation. Any discount or cash discount granted will not be taken into account when calculating the percentage of an increase. Such an adjustment may not exceed the remuneration of the previous remuneration period by more than 5%. We must notify the customer of the increase at least in text form with a notice period of three months at the time it takes effect. If the customer does not agree to the increase in remuneration, he can terminate the contract extraordinarily in text form within four weeks of receipt of the announcement at the time when the increase in remuneration takes effect as planned by us. If the customer does not terminate the contract, the increase in remuneration is deemed to have been approved by him.
11.10. All amounts are net plus statutory sales tax applicable at the time of service provision.
12. Set-off and retention rights
12.1. The customer is only entitled to set-off if his counterclaims have been legally established or have been recognised by us. Counterclaims of the customer arising from the same contractual relationship are also exempt from the set-off prohibition.
12.2. The customer can only exercise a right of retention if the counterclaim on which he bases the right of retention is undisputed, legally established or ready for decision and is based on the same contractual relationship.
13. Retention of title
13.1.We retain ownership of permanently provided items such as hardware and accessories until all current and future claims arising from a software purchase agreement and an ongoing business relationship have been paid in full.
13.2. The customer is not authorized to pledge the reserved goods subject to retention of title to third parties or to transfer them as security, but is authorized to resell the reserved goods in the orderly course of business. The customer hereby assigns to us any claims against his business partners arising from this. We hereby accept the assignment. The customer is obliged to treat the reserved goods with care.
13.3. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing.
13.4. If the value of all securities held in our favour exceeds the existing claims by more than 10%, we will release securities of our choice at the customer’s request.
14. Exercising the right to return property subject to retention of title
14.1. We are entitled to withdraw from the contract after setting a reasonable deadline (unless setting a deadline is dispensable in accordance with 13.2) and to demand the return of the reserved goods delivered under retention of title if the customer is in default of payment of the remuneration owed for 40 days or, in the case of agreed installment payments, for at least two installments, unless the customer is not responsible for the payment arrears or the customer has culpably violated the obligations under clauses 13.2 and 13.3.
14.2. Setting a deadline is not necessary if the customer seriously and definitively refuses to provide the service or is clearly unable to provide the service within this deadline.
14.3.The surrender can still be demanded if the limitation period for the secured claim has already expired.
14.4. If we assert our retention of title, the right to further use expires.
15. Material and legal defects in sales or work contract services
15.1.Deficiency definition
Technical data, specifications and performance information in public statements, especially in advertising materials, are not quality information. We guarantee the functionality and operational readiness of the software or the subject matter of the contract (hereinafter “subject matter of the contract”) in accordance with the description in the user documentation and the agreements made in addition to this. In addition, the subject matter of the contract must be suitable for the use stipulated in the concluded contract and otherwise have a quality that is usual for a subject matter of the same type. A legal defect exists if the customer could not be effectively granted the necessary rights for the contractual use of the subject matter of the contract in the European Union (EU), Switzerland and Great Britain.
15.2. Changes by customers
If the customer or third parties commissioned by him – without our written consent – make any interventions in the contractual object delivered by us or in the work performed, in particular manipulations or other changes, we will only remedy the defect if the customer proves that the intervention has no effect on the defect that has occurred. Claims by us due to unauthorized changes remain unaffected.
15.3. Exclusion of subsequent performance
The customer’s claim for subsequent performance is excluded if (i) the defect cannot be reproduced or cannot be demonstrated using handwritten or machine-printed printouts, if (ii) the customer has not complied with the requirements of the commercial inspection and complaint obligation under Section 377 of the German Commercial Code (HGB).
15.4. Subsequent performance in the case of material defects in the case of permanent software transfer, hardware sales, accessories and work services
If there are material defects, we will remedy the defect by means of subsequent performance, subject to the provisions of the software support contract that take precedence. Subsequent performance will be carried out at our discretion by means of repair or replacement delivery. Subsequent performance can be provided in particular by providing a new program version or by showing ways of avoiding the effects of the defect. The customer must accept a new program version unless this leads to unacceptable adaptation costs for the customer. The defect can also be remedied by means of remote data transmission (remote access).
15.5. Subsequent performance for software rental
a. In the event of material defects, we will provide the service in accordance with the following provisions, subject to the provisions in the “Support Contract Terms” of an existing software support contract that take precedence. We are obliged to provide the customer with the software in a condition suitable for contractual use and to maintain it. The customer must report any defects in the software immediately, describing in detail the effects of the respective defect. Our obligation to maintain the software does not include adapting the software to changed conditions of use and technical and functional developments, such as changes to the IT environment, in particular changes to the hardware or operating system, adapting it to the range of functions of competing products or creating compatibility with new data formats. In the event of justified complaints about defects, we will remedy these by providing a new program version or by giving the customer instructions on how to circumvent the problem or remedy the defect. The defect can also be remedied using remote data transmission (remote access).
b. If we are unable to remedy the defect even after a second attempt and after a reasonable deadline has been set, the customer may reduce the agreed monthly fee proportionately for the periods in which the software was not available to the agreed extent. The right to a reduction is limited to the monthly fee for the defective service component.
15.6. If we provide services in the search for or elimination of defects without being obliged to do so, or if a defect cannot be proven or cannot be attributed to us, we can demand compensation for this in accordance with the remuneration rates/our current price list.
15.7.Reduction or withdrawal / termination / compensation
Unless a software support contract exists and its provisions take priority when remedying defects, we are not willing or able to make improvements or deliver replacements, if the defect is not remedied despite two attempts at subsequent performance, if this is not done within a reasonable period of time or if subsequent performance fails for other reasons, the customer is entitled, at his discretion, to withdraw from the respective contract, to terminate the contract within the scope of software support and software rental) or to demand a corresponding reduction in the remuneration paid (reduction) and, in accordance with Section 16, to demand compensation instead of performance or reimbursement of wasted expenditure. The declaration of withdrawal or termination does not apply to further contracts between the customer and us, but must be declared individually in each case. If the defects are only minor, the customer has no right of withdrawal or termination. If the service is based on a work contract, the customer also has the right to remedy the defect himself and to demand reimbursement of the necessary and reasonable expenditure.
15.8. Subsequent performance in the event of legal defects
We can remedy legal defects at our discretion by (i) providing the customer with a legally flawless opportunity to use the contractual item, or (ii) modifying the contractual item that infringes the intellectual property rights without or only with an effect on its function that is acceptable to the customer, or (iii) exchanging the contractual item that infringes the intellectual property rights with a contractual item that does not infringe any intellectual property rights when used in accordance with the contract, or (iv) delivering a new version of the software program that does not infringe any third-party rights when used in accordance with the contract. If third parties assert intellectual property rights against the customer, the customer must notify us immediately, at least in text form. We will defend or settle the claims at our discretion. The customer may not acknowledge third-party claims on its own initiative without consulting us. We indemnify the customer against all reasonable legal costs and damages associated with the defense of the claim, provided that these are not based on a breach of duty by the customer and the customer complied with his obligation to provide information immediately.
15.9.In the event of fraudulent conduct or if we provide a guarantee, the statutory provisions for material and legal defects remain unaffected.
15.10. Claims for other breaches of duty
The customer can only derive rights from other breaches of duty committed by us if these are reported to us at least by email and we are granted a grace period to remedy the situation. This does not apply if the type of breach of duty means that remedy is not possible. The limits set out in Section 16 apply to compensation for damages or reimbursement of wasted expenditure.
15.11.Limitation periods
The limitation period for all claims for remedy of defects is one year. The limitation period begins with the productive use of the contractual object, the acceptance or its unjustified refusal. The same period applies to other claims against us, regardless of their nature. In the case of intentional or grossly negligent actions on our part, fraudulent concealment of a defect, personal injury or legal defects, claims under the Product Liability Act and guarantees, the statutory limitation periods apply.
16. Liability
16.1. We are liable to the customer in accordance with the statutory provisions if the customer asserts claims for damages or reimbursement of expenses that are based on intentional actions on our part, in cases of culpable injury to life, body or health or in the case of claims under the Product Liability Act. This also applies in the case of fraudulent concealment of a defect, in the case of assumption of the procurement or manufacturing risk within the meaning of Section 276 of the German Civil Code (BGB) or in the exceptional case of a written assumption of a quality or durability guarantee in accordance with Section 443 of the German Civil Code (BGB).
16.2. In the event of gross negligence, we shall be liable to the extent of the foreseeable damage that should have been prevented by the breach of duty.
16.3. In the case of simple negligence, we are only liable if we have breached a contractual cardinal obligation. Contractual cardinal obligations are those obligations that protect the customer’s essential legal positions, which the contract must grant him according to its content and purpose, or whose fulfillment enables the proper execution of the contract and whose fulfillment the customer can rely on. Our liability is limited to the amount of the foreseeable damage that can typically be expected to occur. However, our maximum liability is limited to double the remuneration for purchases, 1.5 times the annual remuneration for rental and software support, and twice the remuneration or corresponding partial remuneration amount (net amount in each case) for IT-specific services. Otherwise, our liability for damages due to slightly negligent breach of other contractual obligations, additional personnel costs for the customer, lost profits, loss of use or loss of sales is excluded.
16.4. Liability for the loss of recorded data is excluded to the extent that it exceeds the damage that would have occurred if the customer had backed up the data properly in terms of frequency and backup procedures in accordance with professional standards. To the extent that we are responsible for backing up data in accordance with agreements made, the above sentence does not apply.
16.5. Any further liability on our part for damages or reimbursement of expenses is excluded regardless of the legal nature of the claim asserted.
16.6 Strict liability for damages for defects that already existed at the time the contract was concluded is excluded.
16.7. We are not liable for damages due to defective third-party software that is the subject of the contract, including open source software and open source components (“third-party software”) from the third-party software manufacturer, unless the material defect is recognizable or avoidable for us. The attribution of the defectiveness of the third-party software to us according to Section 278 of the German Civil Code is excluded if we are obliged to provide the third-party software and grant rights.
16.8. To the extent that our liability is excluded or limited according to the foregoing, this also applies to the liability of our legal representatives and our vicarious agents, in particular employees.
16.9. The customer is obliged to notify us immediately of any damages incurred, at least in text form, or to have them recorded by us, so that we are informed as early as possible and can possibly work together with the injured customer to mitigate the damage.
16.10. The limitation periods are regulated in section 15.11.
Special regulations for software licensing
17. Subject matter of the contract / delivery and scope of services / functionality
17.1. When concluding a software purchase agreement for the software, each customer must conclude a software support agreement with us for the first year of the contract, which can, however, be terminated for the subsequent period of software use in accordance with Section 29. In the case of software rental (subscription), the software support services with all rights and obligations in accordance with Section 24 ff. of these General Terms and Conditions are an integral part of the software rental agreement.
17.2. We provide the customer with the software specified in detail in our order confirmation for their own contractual use in return for payment of the license fee also specified in the order confirmation. The customer is provided with application documentation for the software as an online manual or as a PDF document.
17.3. We provide the software that is the subject of the contract in executable object code. The source code is not the subject of the contract. The software is functional in the software environment in accordance with the system requirements recommended on our website at https://heidler-strichcode.de/wikiextern/index.php?title=Systemvoraussetzungen. The quality of the software is determined by the service descriptions of the standard functionalities valid at the time of conclusion of the contract. We are not obliged to provide any quality beyond this. In particular, the customer cannot derive such an obligation from other representations of the software in public statements or in advertising or from our employees or sales partners, unless we have expressly confirmed the quality beyond this in writing.
18. Copyright and usage rights
18.1. Copyright protection
The software we provide is protected by copyright. The software contains open source software tools. These are subject to the respective module-specific open source license conditions that are stored in the software.
18.2. Granting of rights when purchasing software
When purchasing software, we grant the customer the simple (non-exclusive) right to use the software for their own purposes in accordance with the variant offered in our order confirmation or other usage specifications upon full payment of the license purchase price stated in our order confirmation. Until the license purchase price stated in our order confirmation has been paid in full, we grant the customer a simple, non-transferable right to use the software, which is revocable in the event of a delay in payment of more than 30 days.
18.3. Granting of rights for software rental
Provided that the license fee specified in our order confirmation is paid on time, we grant the customer a simple, non-transferable and revocable right to use the software for the agreed contract period within the scope of the license as specified in the order confirmation. We are entitled to revoke the granting of rights if the customer defaults on payment of a further rental fee of more than 30 days.
18.4. Backup copies and reproduction
a. The customer may create the backup copies necessary for secure operation. These must be marked as such. In the event of a server change, the customer is permitted to migrate the contractual software installed on the new server and install it on it. We must be informed of the server change at least in text form. The customer must delete the contractual software from the previous server when migrating and provide us with proof of this upon request, provided that the previous server is still being used.
b) The customer is prohibited from copying the software (e.g. through replication, cloned virtual machines, etc.) and this constitutes a copyright infringement. In the event of unauthorized copying or if the customer cannot prove, upon our request, that the software has not been deleted from the previous server, we are entitled to demand a flat-rate compensation of double the current license fee. The customer is entitled to prove that we have suffered no or less damage as a result of the copyright infringement. The provisions in Section 21.2 apply accordingly.
18.5. Interference with protective mechanisms / copyright notice
The customer is not entitled to remove or circumvent the existing protection mechanisms of the software against unauthorized use, unless this is necessary to ensure trouble-free use. Copyright notices, serial numbers and other features used to identify the software may also not be removed or changed. The same applies to suppressing the screen display of corresponding features.
19. Program changes / interoperability / decompilation / other exploitation
19.1. The customer is only authorized to make changes, extensions and other modifications to the software within the meaning of Section 69c No. 2 of the Copyright Act (UrhG) if the UrhG absolutely permits such actions. Before the customer himself or through a third party eliminates a defect, he allows us at least two attempts to eliminate the defect. The customer is not entitled to his own rights of use and exploitation of such modifications – beyond the rights of use granted under this contract. However, we can – for appropriate compensation – demand the granting of an exclusive or non-exclusive right of use, unlimited in terms of space and time, with the right to grant sublicenses. The customer is only permitted to make other changes to the software with our prior written consent.
19.2. Furthermore, and subject to the provisions in Section 19, the customer is only permitted to use the software in all forms, in particular translation, editing, other modifications (except for the exceptions under Sections 69d and 69e of the German Copyright Act and other distribution of the software (offline or online)) with our prior written consent.
19.3. If the customer cannot or does not want to carry out the exceptional actions permitted under the Copyright Act himself or have them carried out by his own employees, he must give us the opportunity to carry out the desired work to achieve interoperability within a reasonable period of time and at an appropriate fee for the customer before commissioning a third party company. If a third party company is commissioned, the provisions of Section 9.1. Paragraph 1 a. E. apply accordingly.
20. Restrictions on use of the software
The customer may only use the software for its own internal company purposes as intended. In particular, (i) operating a data center for third parties or (ii) temporarily making the software available (e.g. by means of SaaS or cloud computing) for companies other than group companies, (iii) using the software to train people or (iv) making it available to group companies are only permitted with our prior written consent. Subletting for commercial purposes is generally prohibited.
21. Contractual penalty
21.1 For each case of culpable infringement of the rights and obligations under 18.1 (copyright protection), 18.2 and/or 18.3 (granting of rights), 18.4 (backup copies and reproduction), 18.5 (interference with protective mechanisms / copyright notice), 19 (program changes / interoperability / decompilation / other exploitation), 20 (restrictions on use of the software), the customer undertakes to pay a contractual penalty of 20% of the net license volume – max. €25,000 – in the case of intentional conduct, 15% – maximum €20,000 – in the case of gross negligence and 10% – max. €15,000 – in the case of slightly negligent conduct. Invocation of a continuation connection is excluded. If it is a continuing violation, each month of a continued violation shall be considered an independent violation.
21.2.The assertion of further performance and compensation claims remains unaffected by the demand for payment of the contractual penalty. The provisions of §§ 340 Para. 1 Sentence 2, 341 Para. 3, 343 BGB are excluded. The contractual penalty is to be offset against any possible claim for compensation.
22. Audit
22.1 The customer undertakes to allow us to check that the customer is complying with the software usage at the location where the software is used after the software has been provided, and to support us to the best of our ability in this check. Our check will be carried out after notification during the customer’s normal business hours. The notification must be made with a period of notice of at least 10 calendar days. We will endeavour to disrupt the customer’s business operations as little as possible.
22.2 If excessive use or other use contrary to the contract is identified during the audit, the customer must pay the corresponding license fees from the time of excessive use or at the latest from the time of the discovery of the use contrary to the contract. This does not affect any further claims we may have.
23. Duration of software rental agreement / notice period / return obligation at end of contract
23.1.The software rental agreement begins (possibly retroactively) on the first day of the month in which the contract is concluded upon receipt of the order confirmation by the customer and initially has a term as stated in the order confirmation. The software rental agreement is extended by a further 12 (twelve) months unless it is terminated by one of the parties in compliance with the notice period of 3 (three) months at the end of the respective agreed term.
23.2. Ein Softwaremietvertrag ohne eine in der Auftragsbestätigung festgelegte Vertragslaufzeit kann von beiden Vertragsparteien mit einer Frist von 3 Monaten zum Jahresende – frühestens nach 3 Monaten – gekündigt werden.
23.3. A software rental agreement without a contract term specified in the order confirmation can be terminated by either party with a notice period of 3 months to the end of the year – at the earliest after 3 months.
a. if a contracting party continually and repeatedly violates obligations arising from the software rental agreement or the provisions of the General Terms and Conditions despite a warning;
b. if the customer is more than 30 calendar days late in paying the remuneration;
c. if insolvency proceedings are opened against the assets of the other contracting party or if the opening of insolvency proceedings is refused due to insufficient assets.
23.4. When the software rental agreement ends, the customer must irretrievably delete the software on their hardware and any copies made and provide evidence of the solution upon our request. We are also entitled to switch off the software remotely at the end of the contract.
23.5. Any use of the software is prohibited after termination of the rental agreement.
Special provisions for software support
24. Scope
These special provisions for the software support contract (hereinafter “Support Contract Terms”) apply to all software support contracts between us and the customer. They also apply to future transactions, even if they are not expressly referred to.
24.1. Contractual services
We provide software support services for the customer for the software purchased or rented (subscription). When purchasing software, the support fee is listed separately in our order confirmation. When renting software (subscription), the fee for the software support services is included in the usage fee.
24.2. Software support services
The subject of this contract is the support of the software by us within the support times according to clause 28.2 against payment of the agreed remuneration according to clause 30 within the support times according to clause 28.2. We provide the following support services:
i. Fault analysis and elimination of defects (clause 25);
ii. the provision of updates (Section 26) and
iii. the provision of first-level support and a service hotline (Section 27)
b. Additional services:
In addition, we offer the customer the following services in particular, which go beyond those in paragraph a., upon separate order and for additional remuneration in accordance with our current price list:
i. Fault analysis and elimination (defect elimination) outside of service hours in accordance with Section 27.2.;
ii. Installation, loading, implementation of the software – also applies to its updates – on the customer’s hardware environment;
iii. monitoring measures;
iv. data recovery;
v. Data transfer / maintenance of a test system;
vi. Instruction and training of employees;
vii. Adaptations of the software with changes to the source code itself
viii. Setup/adjustment (parameterization): Support for us in setting up the software provided to customer-specific requirements, but without changing the source code of the software;
ix. Extended advice: Dealing with customer questions, e.g. with regard to alleged faults and defects that are not inherent in the software, but are due to operating errors, other external influences,
x. Support at the customer’s premises;
xi. Delivery of new versions, new modules and/or new developments, also on a different technological basis (see section 26.3.);
xii. Programming additional program parts (software creation).
c. Requirements for support services
Our obligation to provide support services in accordance with clause 24.2. a. or c. requires that we implement and use the software under the system requirements specified as necessary for its intended use. We are not obliged to provide support services for software that has been modified by programming work carried out by the customer or by third parties without our prior written consent.
d. Manner of provision of support services
The support services in the form of delivery of updates as well as fault analysis and defect elimination are generally carried out by remote access via the Internet after activation by the customer in accordance with section 5.2. lit. e.
25.Scope of services: fault analysis and defect removal when purchasing software
25.1. Subject of performance
We will remedy any defects reported by the customer in accordance with section 26.3 in accordance with the following provisions. When purchasing software, the customer is not obliged to comply with the statutory inspection and complaint obligation in accordance with Section 377 of the German Commercial Code (HGB) or to provide evidence that the defect complained of was already present when the software was delivered.
25.2 Scope of services
a. In particular, analysis and elimination of
- Malfunctions of the shipping system;
- incorrectly configured subsystems;
- problems with the interfaces – communication.
b. In particular, problems with the operating system with
- Detecting, locating and providing support for problems that are attributable to the operating system used (e.g. problems accessing certain files);
- Support in questions relating to the configuration of the network, insofar as it is relevant to the operation of the shipping system.
c. In particular, program maintenance/service with
- Problem analysis in the software and additional components supplied by us;
- Support with the installation of software updates, e.g. if the customer has problems installing the update;
- Support with operating the software (in the event of staff changes, vacation cover, etc.).
25.3 Documentation of defects and notification by the customer
The customer must notify us of any defects that occur by email or telephone in accordance with the provisions in Section 29 to the best of his ability in the most comprehensible manner possible, stating the specific circumstances of their occurrence, their effects and – as far as possible – the causes to be explained, and provide all defect reports, the necessary logs, system configuration with quantity and volume information, test data, analyses carried out with available results.
25.4. Fault analysis and defect elimination
We will begin the fault analysis during the support hours (see section 28.2.) without undue delay and will remedy any defects identified within a reasonable period of time using one of the following measures at our own discretion:
a. By providing an update in accordance with Section 27, which the Customer installs;
b. Instructions to the customer on how to circumvent the problem or remedy the defect (workaround). The customer will implement these instructions through competent personnel, unless this is unreasonable for him;
c. Defect elimination via remote access.
25.5. Calculation of costs due to unjustified defect reports
If it turns out that the faults or defects reported by the customer do not actually exist, are not attributable to the software covered by the contract or are due to an application error, we are entitled to invoice the customer for the costs of processing the defect report and analyzing the fault in accordance with our current hourly rates.
25.6. No removal of material and legal defects after termination of the contract
We are not obligated to remedy material and legal defects that are reported by the customer after termination of this contract. This does not apply to defective support services, which must be claimed by the customer in compliance with the obligation to examine and give notice of defects during the software run within the defect remedy period in accordance with Section 15.11.
26. Scope of services Delivery of updates
26.1. Subject of the service
We provide updates to the customer after release.
26.2. Content of updates
Updates are new software program versions of the software that may contain corrections or improvements or extensions to existing functionalities.
26.3.Exclusions
The flat-rate support fee does not include the delivery of new versions, new modules and/or new developments (collectively “new products”), even on a different technological basis.
26.4. Delivery
We provide the customer with the updates in object code as a download file. The source code is not part of the contract and is therefore not included.
26.5. Individual support services for the customer
The installation of the update or the customer-specific parameterization or adaptation of the system based on the update delivery by us must be paid for separately by the customer in accordance with section 25.2. lit. b.
26.6.Grant of rights
We grant the customer the right to use the update delivered to the extent that the customer was entitled to use the original software through the software purchase agreement. After installing a new update, the usage rights for the previous software version remain unaffected. However, the previous software version may not be used as standalone software in addition. The customer may keep the immediately preceding software version after productive use has ended for documentation and in case of emergencies.
27. Leistungsumfang First-Level-Support und Service-Hotline
27.1. Wir stehen dem Kunden während unserer Geschäftszeiten gemäß Ziffer 27.2. for first-level support in the event of user questions or faults caused by operating errors or by the software, please contact the following email address or service telephone number, in particular to first try to localize any faults and, if possible, resolve them immediately.
27.2. Our service hotline is available to customers on weekdays Monday to Friday from 9:00 a.m. to 12:00 p.m. and Monday to Thursday from 1:00 p.m. to 5:00 p.m. CET – except December 24th and 31st and public holidays in Baden-Württemberg (support times). During support times, we will also answer inquiries or messages sent to the email address support@heidler-strichcode.de in accordance with section 27.1.
28. Special cooperation obligations of the customer
28.1. The prerequisite for the provision of support services under this contract is that the customer uses a version of the software that is no older than 12 months. There is no obligation to use and install the new update provided if this is unreasonable for the customer, for example because the update is defective.
28.2. In the interest of efficient fault analysis and defect elimination and treatment, the customer will appoint and name at least one responsible employee (so-called key user) and a corresponding deputy with in-depth knowledge (administrator knowledge) of the software as a contact for us promptly after the contract has been concluded. The customer is entitled – except at an inopportune time – to replace the key user named by him and his deputy, even temporarily. Such an exchange is binding from the time the exchange is notified to us in writing. We must be informed of any change immediately in writing. The key user bundles and coordinates reports and inquiries from the customer. Before passing them on, he will first check the reports and inquiries based on his own expertise to see how he can help the users affected. If he cannot solve the problems that arise, he will forward the reports and inquiries via the hotline or the email address provided for this purpose. He is entitled to give us orders to provide services not owed under this contract. We are not obliged to carry out these orders. Other employees of the customer – except designated representatives – are not authorized to report or make inquiries to us.
29. Contract duration and termination
29.1. The software support contract for software purchases begins with our order confirmation and has an initial minimum term of 12 months. The contract is extended by a further 12 months unless it is terminated by one of the parties with a notice period of 3 (three) months at the end of the respective one-year contract term. Any right of termination according to Section 648 of the German Civil Code is excluded.
29.2. A separate termination of software support services for software rental is not possible.
29.3. This does not affect the right of both parties to terminate the contract for good cause. Good cause in our favour exists in particular if
a. if the customer is more than two months late in paying more than one support fee, or
b. if the customer does not comply with the terms of use and does not immediately stop doing so even after receiving a warning from us with a threat of revocation in the event of imminent danger, even without such warning.
An important reason in favor of the customer exists in particular if we continue to provide the support services owed poorly or not at all despite setting reasonable grace periods twice.
29.4. A reversal, cancellation or similar reorganization (termination date) of the software purchase contract for the software specified in the order confirmation does not initially affect the existence of this contract. In such a case, the contract ends at the next possible point in time at which the customer could terminate the contract by ordinary termination. For the remaining term of this contract from the termination date, the customer owes a flat-rate support fee reduced by 60%, provided that no more support services are provided. The right to terminate for important reasons remains unaffected. The termination of the software purchase contract alone does not count as an important reason.
29.5. The termination must at least be in text form.
30. Remuneration
30.1. The flat rate for software support (shown separately when purchasing software, included in the usage fee when renting software), the remuneration for support services beyond the agreed time quota and services on-site at the customer’s premises are specified in the order confirmation.
30.2. The remuneration owed for software support for software purchases is invoiced monthly or annually in advance at the beginning of the contract year – if the contract begins during the year, pro rata temporis – as specified in the order confirmation and is to be paid by the customer in accordance with Section 11.4. The remuneration for software rental with included software support is determined in accordance with Section 11.
30.03. Services ordered by the customer outside of support hours must be paid for by the customer based on the amount of work involved in accordance with the rates listed in the price list, unless the customer has concluded an additional agreement with us to the software support contract for emergency and standby services. If we have provided additional services in accordance with clause 25.2.b. of this contract on the customer’s request, these must also be paid for based on the amount of work involved in accordance with our current price list.
30.4. Travel costs and travel times for on-site assignments at the customer’s premises will be invoiced to the customer based on the actual expenditure in accordance with the remuneration rates listed in the price list.
31. Obligation to examine and complain when purchasing software
31.3. In the case of a concluded software purchase agreement, the customer must examine the support services promptly after they have been provided, particularly with regard to the completeness and functionality of basic program functions.
31.2. The customer must inform us of any defects discovered without undue delay, at least in text form. The complaint must contain as detailed and specific a description of the defects as possible.
31.3. Defects that could not be identified during the proper inspection described must also be reported promptly after discovery, at least in text form. The regulation in clause 32.2, sentence 2 applies accordingly.
32. Claims for remedy of defects
32.1. We guarantee that the services provided under this contract are free from material and/or legal defects. A material defect exists if the software does not have the contractually agreed quality. A legal defect exists if we cannot effectively grant the customer the rights required for the contractual use of the software for the territory of the European Union (EU) (infringement of third-party intellectual property rights). Material defects that are reported to us by the customer during the term of this contract in accordance with the specifications in Section 32 if a software purchase contract exists, will be remedied by us as part of the defect rectification in accordance with Section 25. The legal defect rectification takes place in accordance with the provisions in Section 32.3.
32.2. If we provide the customer with software as part of the rectification of defects in accordance with Section 25 or the provision of updates in accordance with Section 26, the customer has the rights in accordance with this Section 32 and the additionally applicable statutory provisions with regard to the software components that lead to a change or addition to the software previously used. To the extent that the software provided is identical to the software already used, the previously existing rights and the applicable limitation period remain in place for the software components already in use.
32.3. In the event of an infringement of third-party intellectual property rights pursuant to clause 32.1, sentence 4, for which we are responsible through the software provided by the customer within the scope of this contract, the provisions in clause 15.8 shall apply.
32.4. If we are unable to remedy a material and/or legal defect within a reasonable period of time, the customer must grant us at least one further reasonable grace period. If attempts to remedy the defect fail, the customer is entitled to reduce the support fee for software purchases and the usage fee for software rentals accordingly. The contracting parties must reach an agreement on the amount of the reduction; the customer is not entitled to unilaterally determine the amount of the reduction. Termination of the contract or withdrawal from the contract is excluded; this does not affect the customer’s right to terminate the contract for good cause.
32.5. The provisions of this section 33 are final with regard to material and legal defects. The right to terminate for good cause in accordance with section 30.3. and the right to assert claims for compensation for wasted expenditure or claims for damages within the scope of the limitation of liability in accordance with section 16 of our General Terms and Conditions remain unaffected.
32.6. Liability for material and legal defects for the support services provided expires if the customer or third parties make changes to the software to be maintained that we have not previously expressly agreed to at least in writing. This does not apply if the customer explains and proves that the defect is not attributable to these changes and that these have not made it more difficult to identify and eliminate the defect.
Special provisions for IT-related services
33. Subject matter of the contract: other IT-related services
In particular, if we provide services such as installation of software, programming of additional program components (software creation), data transfer, conversion, parameterization, instruction in the use of software and hardware, conducting training courses, consulting and project management, customizing such as adapting (by changing the source code) or setting up/adjusting (parameterization) the software, setting up hardware, and creating specifications, the provisions in sections 34 to 37 apply in addition.
34. Scope and provision of services / restrictions
34.1. The services to be provided by us are listed in detail in the order confirmation with provisions e.g. regarding their specific task, remuneration, contract term, place of performance, time scope, etc.
34.2. We reserve the right to select the employees we employ.
34.3 .If we prepare a specification based on the requirements of a specification against payment, the customer must accept the specification in accordance with Section 6.
34.4. The customer’s claims for the provision of services ordered and paid for in advance shall expire without any obligation for reimbursement on our part, unless they are requested by the customer within 12 months of the order being placed at the latest.
35. Term / Termination
35.1.In the case of contracts as a continuing obligation (not software rental contract or software support contract), both contracting parties can terminate this contract at any time with three months’ notice to the end of the month. The right to extraordinary termination without notice if the legal requirements are met remains unaffected.
35.2.In the event of termination, the remuneration is regulated as follows: Full remuneration is due for the services provided up to that point. The right to remuneration for services not provided as a result of the early termination is void, unless the customer is responsible for the termination. In the event of termination of a work contract by the customer in accordance with Section 648 of the German Civil Code (BGB), we can, at our discretion, claim the claims in accordance with Section 648 of the German Civil Code (BGB) or, instead, demand a lump sum of 30% of the respective services not yet provided at the time of termination as remuneration – related to this contract – for our expenses and lost profits in addition to the remuneration for the services already provided.
36. Special provisions for consultations / training
36.1. We provide the consulting services in such a way that the customer explains his consulting needs to us and we advise the customer on possible solutions that appear suitable. The customer decides on the services we are to provide and the further procedure in accordance with the customer’s duty to cooperate in accordance with Section 5 of the General Terms and Conditions. We summarize the findings from the consulting work for the customer and also present any recommendations for solving the issues raised. We document the collaboration and the findings gained in the process, provided this is expressly agreed.
36.2. Participation in training courses requires the binding registration of the participants by name, at least in text form. The fee and any additional costs must be paid before the start of the training course. If you withdraw from participation, you must notify us at least in text form at least 2 weeks before the start of the training course. In this case, the cancellation compensation is 1/3 of the fee due. If the withdrawal occurs within a shorter period of time or if a participant does not attend the event, the agreed fee and additional costs are due in full.
36.3. We reserve the right to cancel a training session. Registered participants will be notified as early as possible, unless force majeure prevents this. Fees already paid by participants will be refunded. We will only reimburse participants for any damages incurred under the conditions set out in section 16.
36.4.The content and quality of the training are based on the current generally available state of knowledge on the subject matter. We do not accept any liability for incomplete or incorrect content and/or accompanying materials.
General final provisions
37. Poaching
Die Vertragsparteien haben es zu unterlassen, während der Vertragslaufzeit und für die Dauer von einem Jahr nach Vertragsende, jeweils Mitarbeitende der anderen Vertragspartei einzustellen. Für jeden Fall des Verstoßes verpflichtet sich die abwerbende Partei zur Zahlung einer Vertragsstrafe in Höhe eines Jahresgehalts, mindestens jedoch € 50.000.–. Die Darlegungs- und Beweislast, dass die Einstellung des früheren Mitarbeitenden der Partei als ehemaliger Arbeitgeberin nicht auf gezielter Abwerbung beruht, obliegt der abwerbenden Partei als neuer Arbeitgeberin. Die Geltendmachung weiterer Schadensersatzansprüche bleibt durch das Verlangen auf Zahlung der Vertragsstrafe vorbehalten. Eine Vertragsstrafe ist auf den geltend gemachten Schadensersatz anzurechnen.
38. Written form / text form
38.1. No oral side agreements have been made. Changes or additions to the General Terms and Conditions and the contracts concluded between the parties must be in writing to be effective, excluding electronic form and text form. This also applies to this form clause. Changes that do not comply with the specified form are invalid. The validity of individual agreements, regardless of their form, remains unaffected by this form clause.
38.2.Terminations must be in writing at least.
39. Place of performance / Applicable law / Place of jurisdiction
39.1. The place of performance for our deliveries and services as well as the place of subsequent performance is our company headquarters.
39.2.These General Terms and Conditions and the contracts concluded between us and the customer on the basis thereof are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
39.3. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes is Stuttgart. We are entitled to assert our own claims at the customer’s place of jurisdiction.
40. Abtretung / Salvatorische Klausel
40.1. The customer can only assign claims arising from contracts concluded with us with our prior consent, at least in text form. We may not refuse consent for unreasonable reasons.
40.2. Should individual provisions of these General Terms and Conditions or the contracts concluded between us and the customer on the basis of these be or become invalid in whole or in part, or should there be a gap in these General Terms and Conditions or these contracts, this shall not affect the validity of the remaining provisions.
41. Language of the General Terms and Conditions and priority of the German language version
These Terms and Conditions were created in German. If the Terms and Conditions are translated into English, the German version of the Terms and Conditions shall prevail in the event of any discrepancies in content between the two language versions.