AGB
Heidler Strichcode GmbH

General Terms and Conditions of HEIDLER Strichcode GmbH

State 05.12.2019

1. Scope of application / amendments to the GTC

1.1 The provisions of these General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all contracts for the sale of software products, 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 if reference to the GTC is no longer made at a later date in ongoing business relationships.

1.2 Upon conclusion of an HVS32 software support contract (hereinafter referred to as “Software Support Contract”), these GTC shall apply in addition.

1.3 In the event of contradictions, the provisions of the offer shall take precedence over the provisions of the GTC.

1.4 Our GTC shall 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 terms and conditions of the customer shall only apply if we have expressly agreed to them in writing. If the customer does not agree to them, he must notify us immediately in writing. 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 shall notify the customer of any upcoming changes to these GTC at least by e-mail. If the customer does not object to such amendments within 6 weeks of receipt of the notification, the amendments shall be deemed to have been agreed. We shall inform the customer separately of the right of objection and the legal consequences of silence when notifying the customer of an amendment to the GTC. In the event of a timely objection, the original provisions shall remain unchanged instead of the amendment.

General provisions

2. Conclusion of contract / subcontractors

2.1 Unless otherwise stated in our offers, our offers are non-binding. A contract is concluded with our order confirmation (acceptance) of your order in response to our non-binding offer.

2.2 We are authorised 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. provision of services / deadlines / force majeure

3.1 In consultation with the customer, we shall provide the contractual services on the dates agreed in text form. Deadlines for the provision of services may only be agreed by us through the project manager or the management.

3.2 As long as we are prevented from providing the service due to an unforeseen, extraordinary event which we cannot avert even if we exercise reasonable care, in particular in the event of natural disasters, energy supply or operational disruptions, official intervention, legal prohibitions, labour disputes or other cases of force majeure, the performance periods shall be deemed extended by the duration of the hindrance and by a reasonable start-up time 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 hindrances 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. Amendments to the contract (change requests)

4.1 Change requests (“CR”) by 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 the implementation is not reasonable for us in the context of the fulfilment of the contract. We must inform the customer of this immediately after testing the CR. CRs are excluded from the start of the test procedure.

4.2 If we consider the CR to be realisable 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 upon our acceptance of the order (order confirmation), also with regard to the specified service dates. Any delays caused by the examination of the CR and up to the acceptance or acceptance of the offer, such as downtimes within the framework of the fulfilment of the contract, shall extend the contractually agreed execution period appropriately.

4.3 The deadlines 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 for postponing the performance period. We will inform the customer of new deadlines that have not become part of the new contract. 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.

4.4 Our activities for the examination of the CR, the possible 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 co-operate

5.1 The contracting parties shall work together in a spirit of trust. If a contracting party recognises 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 recognisable consequences without delay. The contracting parties shall then endeavour to find a solution that is in their interests.

5.2 The cooperation of the customer is essential for the fulfilment of the contractual services owed by us. When fulfilling the contractually owed services, the customer must in particular fulfil the obligations to cooperate with us listed in sections 5.3 to 5.8.

5.3 The customer shall provide the necessary number of competent contact persons authorised to make decisions for the duration of the project. The customer shall make decisions necessary for the realisation of the project within a reasonable period of time according to our communicated decision-making requirements.

5.4 The customer undertakes to support our activities required for project realisation to the best of his ability. This includes in particular active participation in all project meetings. The customer shall ensure that all documents necessary for the execution of the activity 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 realisation of the project. The handover shall take place in a format to be agreed. The customer is 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.

5.5 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 misbehaviour is attributable to the software supplied by us. Otherwise, we shall be entitled to charge the customer for the costs incurred.

5.6 If the customer does not have the necessary rights of use to the documents (in particular information) provided to us, 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.

5.7 The customer must create the technical and organisational conditions that enable us to provide our services under the contract remotely (e.g. TeamViewer, VPN connection from the customer to us). The customer shall provide the necessary technical requirements for this at his 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 in the rooms provided. 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.

5.8 The customer shall thoroughly test the contractual software for freedom from defects and usability in the existing hardware and software configuration before using it. This obligation also applies 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.

5.9 If the customer fails to fulfil 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 fulfil 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. Acceptance

6.1 If the activities owed by us are services under a contract for work and labour, 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 notify the customer of the readiness for acceptance. The acceptance of work services 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 has been carried out successfully if the services under the contract for work and labour have essentially been fulfilled. Special acceptance procedures can be defined by the project managers. A 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 services under the contract for work and labour that prevent acceptance, the customer must accept the services. If the customer does not judge the services rendered to be essentially in accordance with the contract, he must notify us of his complaints by e-mail within 10 working days (Mon. – Fri.).

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 refusing acceptance (in particular when carrying out a test operation) within the period in accordance with clause 6.2. after our request, at least by e-mail. Acceptance shall also be deemed to have taken place if the customer puts the services provided by us into use or begins productive use.

7. data backup

The customer shall back up all its data, structures and programmes – including software not covered by the contract – on a regular basis, in particular before we commence any work, such as defect rectification work or the installation of updates, in accordance with the state of the art and operational requirements. 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 in the course of the fulfilment of the contract shall be provided to the customer on request in copy for use for the customer’s own purposes in accordance with the contract. 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 use.

8.3 We grant the customer a non-exclusive right to use customised software or software programming in object code for the intended purpose upon full payment of the agreed remuneration. Until the remuneration has been paid in full, we shall transfer to the customer a simple right of use to the software and the programming, which may be revoked in the event of a delay in payment of more than 30 days.

9. confidentiality / naming of references

9.1 Insofar as the contracting parties have concluded a non-disclosure agreement (NDA), its provisions shall take precedence over the following provisions. In all other respects, the contracting parties undertake to keep secret all trade and business secrets or information designated as confidential (collectively referred to as “information”) received or disclosed by the other party during the performance of the contract, even 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 documents 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 Information that is generally known and accessible at the time of disclosure or was already known to the receiving contracting party at the time of disclosure or was legitimately made accessible to it by third parties is not covered by the confidentiality obligation.

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.

10. Data protection

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 – within the scope of contract fulfilment. Details on data processing and the rights of data subjects can be found in our data protection information at https://heidler-strichcode.de/privateHeidler/DSI.html.

10.2 The contracting parties shall also impose the data protection obligations on their employees and any subcontractors used.

11 Remuneration and terms of payment

11.1 The amount of the remuneration and the terms of payment (payment dates) are set out in the offer.

11.2 In addition to the agreed remuneration, we shall be entitled to reimbursement of ancillary costs and expenses, in particular the reimbursement of reasonable travelling and accommodation costs. The ancillary costs such as travelling time, travelling expenses and accommodation are listed in the offer.

11.3 If we have provided all contractually owed services, but the customer has not fully complied with his obligations to co-operate 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 amounts invoiced by us in accordance with the contract are due for payment upon receipt of the invoice by the customer and are payable within 14 calendar days without deductions. The date of the value date on the receiving account shall be decisive for the timeliness of a payment.

11.5 If the customer defaults on its payment obligation, we shall be entitled to claim default interest and a lump sum for default damages in accordance with the statutory provisions in the case of companies or commercial customers. 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 All amounts are net plus the statutory value added tax applicable at the time of invoicing.

12. rights of set-off and retention

12.1 The customer shall only be entitled to set-off if his counterclaims have been legally established or recognized by us. Counterclaims of the customer arising from the same contractual relationship are also excluded from the set-off prohibition.

12.2 The customer may 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. reservation of title

13.1 We reserve title to permanently provided items such as hardware, accessories, data carriers and user manuals until full payment of all current and future claims arising from a software purchase contract and an ongoing business relationship.

13.2 The customer is not authorized to pledge the goods subject to retention of title to third parties or to assign them as security, but is entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us the claims arising from this against his business partners. We hereby accept the assignment. The customer is obliged to treat the reserved goods with care.

13.3 In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing.

13.4 If the value of all securities existing in our favor exceeds the existing claims by more than 10%, we shall release securities of our choice at the customer’s request.

14 Exercise of demand for surrender in the event of retention of title

14.1 We are entitled to withdraw from the contract after setting a reasonable deadline (unless the setting of a deadline is dispensable in accordance with 13.2) and to demand the return of the reserved goods delivered under retention of title if

a) the customer is 40 days in arrears with payment of the remuneration owed or, in the case of agreed installment payments, with at least two installments, unless the customer is not responsible for the payment arrears, or

b) the customer has culpably breached the obligations under clauses 13.2. and 13.3.

14.2 There is no need to set a deadline if the customer seriously and definitively refuses performance or is obviously unable to perform within this deadline.

14.3 Surrender may still be demanded if the limitation period for the secured claim has already expired.

14.4 If we assert the retention of title, the right to further use shall expire.

15. material defects and defects of title in the case of services under purchase contracts or contracts for work and services

15.1 Definition of defects

There is a material defect if the subject matter of the contract does not have the contractually agreed quality or is not suitable for the contractually agreed use. A defect of title exists if the customer could not be effectively granted the rights required for the contractual use of the subject matter of the contract.

15.2 Changes by the customer

If the customer or third parties commissioned by the customer – without our written consent – interfere with the subject matter of the contract delivered by us or the work performed, in particular manipulations or other changes, we shall only remedy the defect if the customer proves that the interference is not related to the defect that has occurred and does not make analysis and rectification more difficult.

15.3 Exclusion of subsequent performance

The customer’s claim to subsequent performance is excluded if (i) the defect is not reproducible or cannot be demonstrated on the basis of handwritten or machine-recorded printouts, if (ii) the customer has not complied with the requirements of the commercial obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB). In the event of changes to the software or hardware, the obligation to remedy defects shall also lapse unless the customer can prove that the changes have no effect on the defect that has occurred. Claims by us due to unauthorized changes remain unaffected.

15.4 Subsequent performance in the event of material defects

In the event of material defects, we shall remedy the defect by subsequent performance, subject to the overriding provisions of the software support contract. Subsequent performance shall be effected at our discretion by repair or replacement. Subsequent performance may be effected in particular by providing a new program version or by demonstrating ways of avoiding the effects of the defect. A new program version shall be accepted by the customer, 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 If we provide services in the search for or rectification of defects without being obliged to do so, or if a defect cannot be proven or cannot be attributed to us, we may demand remuneration for this in accordance with the remuneration rates/our current price list.

15.6 Subsequent performance in the event of defects of title

In the event of defects of title, we may, at our discretion, effect subsequent performance (i) by granting the customer a right of use sufficient for the purposes of this contract, or (ii) by modifying the infringing software without or only with effects on its function that are acceptable to the customer, or (iii) by replacing the infringing software without or only with effects on its function that are acceptable to the customer. only with effects on its function that are acceptable to the customer, is replaced by software whose contractual use does not infringe any property rights, or (iv) we deliver a new program version whose contractual use does not infringe any third-party rights. If third parties assert property rights against the customer, we must be informed immediately in writing. We shall, at our discretion, defend against or satisfy the claims. The customer may not recognize the claims of third parties on his own initiative. We shall indemnify the customer against all reasonable legal costs and damages associated with the defense against claims, insofar as these are not based on conduct by the customer in breach of duty. The provision of clause 14.5 sentence 5 shall apply accordingly.

15.7 Reduction or withdrawal / compensation for damages

If the defect is not remedied despite two attempts at subsequent performance, if we are unwilling or unable to remedy the defect or make a subsequent delivery, if we fail to do so within a reasonable period of time or if subsequent performance fails for other reasons, the customer shall be entitled, at his discretion, to withdraw from the respective contract or to demand a corresponding reduction in the remuneration paid (reduction) and to demand damages instead of performance or reimbursement of futile expenses in accordance with clause 16. The declaration of withdrawal shall not also apply to further contracts between the customer and us, but must be declared individually in each case. In the event of only minor defects, the customer shall have no right of withdrawal or termination. In the case of a service under a contract for work and services, the customer shall also have the right to remedy the defect itself and to demand reimbursement of the necessary and reasonable expenses.

15.8 In the event of fraudulent action or if we assume a guarantee, the statutory provisions for material defects and defects of title shall remain unaffected.

15.9 Claims for other breaches of duty

The customer can only derive rights from other breaches of duty by us if these are reported to us at least by e-mail and we are granted a grace period to remedy the situation. This shall not apply if a remedy is out of the question due to the nature of the breach of duty. The limits set out in clause 16 shall apply to compensation for damages or reimbursement of futile expenses.

15.10. Limitation periods

The limitation period for all claims for the rectification of defects is one year. The limitation period begins with the productive use of the subject matter of the contract, the acceptance or its unjustified refusal. The same period shall apply to other claims of any kind against us. In the event of intentional or grossly negligent action on our part, fraudulent concealment of a defect, personal injury or defects of title, claims under the Product Liability Act and guarantees, the statutory limitation periods shall apply.

16. Insurance / Liability

16.1 We shall be liable to the customer in accordance with the statutory provisions if the customer asserts claims for damages or reimbursement of expenses which are based on intentional acts on our part, in cases of culpable injury to life, limb or health or in the case of claims under the Product Liability Act.This shall also apply in the event of fraudulent concealment of a defect, assumption of the procurement or manufacturing risk within the meaning of § 276 BGB or in the event of exceptional written assumption of a guarantee of quality or durability in accordance with § 443 BGB.

16.2 In the event of gross negligence, we shall be liable in the amount of the foreseeable damage that was to be prevented by the breached obligation.

16.3 In the event of simple negligence, we shall only be liable if we have breached a cardinal contractual obligation. Cardinal contractual obligations are those obligations that protect the customer’s legal positions that are essential to the contract, which the contract must grant him according to its content and purpose, or the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the customer may rely.Our liability is limited to the amount of the foreseeable damage that can typically be expected to occur. However, our liability is limited to a maximum of twice the remuneration in the case of purchases and twice the respective remuneration or corresponding partial remuneration amount (net amount in each case) in the case of IT-specific services. Otherwise, our liability for other damages caused by slight negligence, additional personnel expenses incurred by the customer, loss of profit, 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 at the correct frequency and in accordance with professional standards. Insofar as we should be responsible for the backup of data in accordance with agreements made, the above sentence shall not apply.

16.5 Any further liability on our part for damages or reimbursement of expenses shall be excluded, irrespective of the legal nature of the claim asserted.

16.6 Insofar as our liability is excluded or limited in accordance with the above, this shall also apply to the liability of our legal representative bodies and our vicarious agents, in particular our employees.

16.7 The customer is obliged to notify us immediately, at least by e-mail, of any damage incurred by him or to have it recorded by us, so that we are informed as early as possible and can possibly carry out damage minimization together with the injured customer.

16.8 The limitation periods are regulated in clause 15.10.

Special provisions on the permanent provision of software

17. Subject matter of the contract / delivery and scope of services / functionality

17.1 We provide the customer with the software specified in detail in the offer for the customer’s own contractual use in perpetuity against payment of the license purchase price. The customer shall be provided with application documentation for the software as an online manual or as a pdf document.

17.2 We provide the contractual software in executable object code. The source code is not the subject matter 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 shall be determined by the service descriptions of the standard functionalities valid at the time of conclusion of the contract. We do not owe any additional quality. In particular, the customer cannot derive such an obligation from other descriptions of the software in public statements or in advertising or from our employees or sales partners, unless we have expressly confirmed the additional quality in writing.

18. Copyright and rights of use

18.1 Copyright protection

The software provided by us 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 Deferred granting of rights

Until full payment of the license purchase price specified in the offer, we grant the customer a simple, non-transferable right to use the software, which may be revoked in the event of payment default of more than 30 days.

18.3 General granting of rights

We grant the customer the simple (non-exclusive) right to use the software for his own purposes in accordance with the variant offered in the offer or other usage specifications upon full payment of the license purchase price specified in the offer.

18.4 Backup copies and duplication

The customer may make the backup copies necessary for secure operation. These are to be marked as such.

18.5 Interference with protection 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 achieve trouble-free use. Copyright notices, serial numbers and other features serving to identify the software may also not be removed or altered. The same applies to the suppression of the screen display of such features.

19. program changes / interoperability / decompilation

19.1 The customer is only authorized to make changes, extensions and other modifications to the software within the meaning of § 69c no. 2 of the German Copyright Act (UrhG). The customer is only authorized to make changes, extensions and other modifications to the software within the meaning of § 69c No. 2 of the German Copyright Act (UrhG) if the UrhG permits such actions without fail. Before the customer remedies a defect himself or through a third party, he shall allow us at least two attempts to remedy the defect. The customer shall not be entitled to his own rights of use and exploitation of such processing – over and above the rights of use granted under this contract. However, we may – against reasonable remuneration – demand the granting of an exclusive or non-exclusive right of use, unlimited in terms of territory 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 Apart from that and subject to the provision in clause 19, the customer is only permitted to use the software in all other ways, in particular translation, editing, other adaptations (with the exception of the exceptions under Sections 69d and 69e UrhG) and other distribution of the software (offline or online) with our prior written consent.

19.3 If the customer cannot or does not wish to carry out the exceptional work permitted under the UrhG himself or have it carried out by his own employees, he must, before commissioning a third-party company, give us the opportunity to carry out the desired work to establish interoperability within a reasonable period of time at appropriate remuneration for the customer. If a third-party company is commissioned, the provisions of Section 9.1. para. 1 a. E. shall apply accordingly.

20. Restriction of use of the software

The customer may only use the software for its own internal company purposes as intended. In particular (i) data center operation for third parties or (ii) the temporary provision of the software (e.g. by way of SaaS or cloud computing) for other than group companies, (iii) the use of the software for the training of persons or (iv) the transfer to group companies, are only permitted with our prior written consent. Commercial subletting 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 duplication), 18.5 (interference with protection mechanisms / copyright notice), 19 (program modifications / interoperability / decompilation), 20. (restriction of use of the software), the customer promises to pay a contractual penalty in the amount of 20% of the net license volume – max. € 25,000 – in the event of intent, in the event of gross negligence in the amount of 15% – max. € 20,000 – and in the event of slight negligence in the amount of 10% – max. € 15,000. The invocation of a continuation connection is excluded. In the case of a continuing infringement, each month or part thereof of a continuing infringement shall be deemed an independent infringement.

21.2 The assertion of further claims for performance and damages shall remain 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 shall be offset against any claim for damages.

22. Audit

22.1 The customer undertakes as an independent obligation to enable us to check the customer’s compliance with the use of the software at the place of use of the software during the use of the software after the software has been provided and to support us in this check to the best of our ability. Our inspection shall take place after notification during the customer’s normal business hours. Notice must be given at least 10 calendar days in advance. We shall endeavor to disrupt the customer’s business operations as little as possible.

22.2 If an overuse or other use contrary to the contract is determined during the audit, the customer must pay the corresponding license fees from the time of the overuse. Further claims by us shall remain unaffected by this.

Special provisions for IT-related services

23. subject matter of the contract other IT-related services

If we provide services such as installation of the software, programming of additional program parts (software creation), data transfer, conversion, parameterization, instruction in the use of software and hardware, training, consulting and project management, customizing such as adaptation (with modification of the source code) or setup/adjustment (parameterization) of the software, the setup of hardware, as well as the creation of specifications, the provisions in clauses 24 to 26 shall apply in addition.

24 Scope and provision of services / restrictions

24.1 The services to be provided by us are listed in detail in the offer or the order confirmation with provisions, e.g. with regard to their specific task, remuneration, contract term, place of performance, time scope, etc.

24.2 We reserve the right to select the employees deployed by us.

24.3 If we prepare a specification sheet on the basis of the requirements of a specification sheet against payment, the customer shall accept the specification sheet in accordance with clause 6.

24.4 Claims of the customer for the provision of services ordered and paid for in advance shall expire without any obligation on our part to make repayment if these are not called up by the customer no later than 12 months after the order is placed.

25 Term / Termination

25.1 In the case of contracts as continuing obligations, both contracting parties may terminate this contract at any time by giving three months’ notice to the end of the month. The right to extraordinary termination without notice if the legal requirements are met remains unaffected.

25.2 In the event of termination, the remuneration shall be regulated as follows: Full remuneration shall be due for the services provided up to that point. The claim to remuneration shall lapse for the services not to be performed as a result of the premature termination, unless the customer is responsible for the termination. In the event of termination of a contract for work and services by the customer in accordance with § 648 BGB, we may, at our discretion, demand the claims under § 648 BGB or instead a lump sum of 30% of the remuneration – in relation to this contract – for our expenses and loss of profit in addition to the remuneration for the services already rendered.

26. Special provisions for consulting services

We provide the consulting services in such a way that the customer presents us with his need for advice and we advise the customer on possible solutions that appear suitable. The customer decides on the services to be provided by us and the further procedure in accordance with the customer’s obligations to cooperate pursuant to Section 5 of the GTC. We summarize the findings from the consulting activities for the customer and also present any recommendations for solving the issues raised. We shall document the cooperation and the knowledge gained in the process, insofar as this has been expressly agreed.

General final provisions

27. Enticement

The contracting parties shall refrain from recruiting employees of the other contracting party during the term of the contract and for a period of one year after the end of the contract. For each case of violation, the enticing party undertakes to pay a contractual penalty in the amount of one year’s salary, but at least € 50,000. The burden of presentation and proof that the hiring of the former employee of the party as the former employer is not based on targeted enticement shall lie with the enticing party as the new employer.

28. written form

28.1 Verbal ancillary agreements have not been made; amendments or supplements to the GTC, the Software Support Agreement or the Supplementary Agreement to the Software Support Agreement on Emergency and On-Call Services must be made in writing to be effective, excluding electronic form and text form. This also applies to this written form clause. Amendments that do not comply with the written form requirement are invalid. The validity of individual agreements, regardless of their form, shall remain unaffected by this written form clause.

28.2 Notices of termination must at least be in text form.

29. place of performance / applicable law / place of jurisdiction

29.1 The place of performance for our deliveries and services and the place of subsequent performance is Stuttgart.

29.2 These GTC and the software support contract concluded on their basis are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

29.3 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 shall be Stuttgart. We are entitled to assert our own claims at the customer’s place of jurisdiction.

30. assignment / severability clause

30.1 The customer may only assign claims arising from contracts concluded with us with our prior written consent. We may not refuse consent for unreasonable reasons.

30.2 Should individual provisions of these GTC or of the software support contract be or become invalid in whole or in part, or should there be a loophole in these GTC or in the software support contract, the validity of the remaining provisions shall not be affected thereby.

31. Language of the GTC and priority of the German language version

These GTC have been drawn up in German. In the event of a translation of the GTC into English, the German language version of the GTC shall take precedence in the event of any discrepancies between the two language versions.