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General Terms and Conditions of TID Informatik GmbH
1. General regulations
1.1. All deliveries and services of the TID Informatik GmbH (TID) are based on the General Terms and Conditions mentioned below. Differing and/or additional agreements require explicit acceptance by TID.
1.2. The publication of these General Terms and Conditions renders all previous General Terms and Conditions of TID invalid.
1.3. Place of fulfilment is Herrsching. For both parties the court of jurisdiction for all disputes arising from this contractual relationship but also from procedures involving bills of exchange or cheque payments is Starnberg.
2. Licensing agreements, copyright
2.2. The customer is obliged to ensure that anyone using this program adheres to this license agreement. The customer is allowed to use this program only on a single computer. “Use” of the program applies, if the program is located in the main memory or on a computer storage medium. A program, installed on a network server only for program distribution purposes, is considered as not being used.
2.3. The customer is entitled to make data backups according to the rules of the technology trade and, for that purpose, make necessary program backups. If the manual is available on a data carrier it may be printed. The customer is not allowed to change or remove any TID copyright notes. The customer is not entitled to use, copy, change or transfer the program in a way other than described herein, to reverse the program into any other expressive form (Reverse-Assemble-Reverse-Compile) or translate it in any other way, provided such conversion is not specifically implied by explicit legal regulations. The customer is not entitled to let or lease the program to third parties. In general, the ordering person is forbidden to grant sublicenses.
3. Software development
3.1. The scope of the software order is determined by mutually created requirement specifications or by order confirmation of the TID Company.
3.2. Creating the software does not include instruction and training, unless contractually agreed otherwise.
3.3. TID tries to serve users on time. If a completion date is given, it will be approximate. If a useable part of the commissioned software is available, the customer is obliged to use it.
3.4. Once the complete program or a significant part thereof is being used, the program is considered accepted by the user. It is further considered accepted, when the customer following corresponding notification by TID fails to provide an acceptance date within 14 working days following such notification.
3.5. If faults become evident, the user who is confronted with these faults has to record, on behalf of TID, in a fault log mentioning when and under which circumstances these faults occur. TID should be given sufficient time for troubleshooting. After locating the fault, TID has to remedy the fault within a reasonable period of time. If it is to be expected that troubleshooting and debugging will take longer, TID is entitled to provide the user with a suitable interim solution.
3.6. Any claims arising from software orders expire after 12 months.
3.7. If TID supplies programs of other manufacturers, then liability of TID shall be limited only to the program manufacturer’s selection.
3.8. Changes and updates: TID is entitled to updating the software at its own discretion. TID is not obliged to provide program updates to license holders who have not paid their update fees, unless these updates refer to the elimination of faults occurring during the guarantee period.
4. Contract conclusion
4.1. A contract only becomes effective when the customer’s application is countersigned by TID or on initial compliance.
4.2. If the contract has been concluded for a certain time period (service contract), it will be automatically extended for another 12 months, unless it is cancelled 3 months before contract expiry. This does not apply, if separate arrangements have been made with the customer.
– The right of both parties to cancel for important reasons is not affected. To TID, an important reason applies in particular, when the customer with duration-defined contracts is two months in arrears with his basic monthly payments;
– When the customer knowingly violates the above mentioned licensing agreements and/or third parties culpably violate applicable licensing agreements with him knowing.
4.3. Each cancellation has to be in writing in order to become effective.
4.4. Headhunting of employees is forbidden. The contractual partners are mutually obliged, not to poach employees nor employ employees from the other company during their contractual relationship. In case of a violation, they are obliged to compensate and without adding charges to a possible damage claim, pay the contractual partner a lump contractual penalty amounting to the annual gross salary of the employee involved.
5. Prices and payment
5.1. If no other payment conditions have been agreed, sales prices become due immediately and without deductions and shall be credited to the accounts indicated by TID. Breaches of contract, particularly delayed payment, give TID the right to cancel orders completely or partly or to suspend delivery of services.
5.2. The customer can only offset TID claims by means of non-contested or legally binding claims. The same applies to both enforcement of a retention lien and liability acceptance in accordance with § 639 sub. 1 BGB (German Civil Code) and § 478 sub. 1 BGB.
5.3. The customer is only entitled to hold back payments or charge for any counterclaims if these are acknowledged by TID or legally binding.
6. Delivery time and time of performance
6.1. TID tries to deliver as soon as possible and tries to adhere to the delivery deadlines and dates mentioned.
6.2. The delivery deadline starts on the day of its confirmation and is considered having been met, when the product has been notified as ready for dispatch or has left the company for delivery purposes.
6.3. If TID has defaulted delivery, the customer is entitled to give TID at least a reasonable two-week period for performance, while threatening to otherwise refuse acceptance. Setting a period of grace has to be done in writing. Once this period of grace has expired without result, the customer has the right to withdraw from the contract by an immediate and written declaration and claim damages on account of non-fulfilment.
6.4. If TID becomes liable for damages as a result of defaulting delivery, liability of TID shall be limited to 0.5% for each full week of the delay, at most however to 5% of the net price agreed for the defaulted service. TID is entitled to prove to the customer, that he has suffered no or only minor damage.
6.5. Damage claims arising from non-fulfilment or compensation claims for damage caused by default are only applicable, if the delay was caused on purpose or by gross negligence.
6.6. Delivery and service delays caused by force majeure, unforeseeable operational disruptions, legal strikes and lockouts as well as official demands, give TID the right to delay delivery or service for as long as the disruption lasts, even in the case of firmly agreed periods and dates. Should delivery because of the above mentioned circumstances be delayed by more than four weeks, the customer has the right to withdraw from the contract by an immediate and written declaration after setting a period of grace of at least two weeks for that part of the contract, which has not yet been fulfilled. If the period of disruption lasts for more than four weeks, TID has the right to withdraw from the contract completely or partly.
6.7. A condition for adhering to delivery deadlines is that the customer has submitted the documents he had to provide and that agreed customer deposits have been paid into the account.
6.8. Following customer agreement, part deliveries and part services are allowed and can be invoiced separately.
7. Delivery and risk transfer
7.1. On dispatch, the risk will be transferred to the customer as soon as the product has left the company.
7.2. The customer can request TID to have the product to be delivered insured against transport risk at the customer’s expense.
7.3. If the customer fails to accept or violates other cooperation obligations, TID is entitled to claim for resulting damage, including any other expenses. In that case, the risk of an accidental loss or deterioration of the delivery item is at that stage transferred to the customer should the latter fail to accept. If the customer does not accept the provided product, or of there are no results following expiry of the two week period set by TID, TID shall be entitled to otherwise dispose of the delivery item and deliver to the customer within an appropriately extended period. If the period of grace granted by TID includes a threat of refusal, TID shall be entitled to withdraw from the contract or demand compensation on account of non-fulfilment.
8. Warranty and liability
8.1. TID is not liable for damages unless the damage is caused on purpose or by gross negligence of TID. Any properties assured by TID shall not affect liability. Liability resulting from consequential damage not included by the assurance is excluded.
8.2. The customer is obliged to carry out a functional check immediately or, at the latest, within a period of 14 days following delivery of the software program. The functional check is considered successful, once the program meets the performance description as referred to in the specification sheet and is suitable for the agreed application purpose. Functionality of the software products is confirmed by a declaration of operational readiness. If no faults are reported within 14 days following delivery of the software product, the delivered software shall be considered operational.
8.3. All warranty rights of the customer assume that the customer has correctly complied with examination and complaints regulations according to §§ 377, 378 HGB (German Commercial Code).
8.4. The warranty period is twelve months and represents a limitation period. For equipment delivery, it starts with its acceptance; for delivery of software products, when the period set for the functional check expires. This period also applies to compensation demands for consequential damage, provided no claims resulting from unauthorized handling are made. Program errors becoming apparent and which can be solved within twelve months following acceptance of the program will be eliminated by TID following receipt of a corresponding written report. For the customer, this elimination is free of the charge.
8.5. Any further demands by the customer, for whatever legal reasons, are excluded. As a result, TID is not liable for damages not involving the delivered item itself. In particular, TID is not liable for lost profits or other financial losses suffered by the customer. This liability exclusion does not apply if the damage was caused on purpose or by gross negligence. Nor does it apply, if the customer demands compensation resulting from non-fulfilment according to §§ 463, 480 sub. 2 BGB (German Civil Code) caused by the absence of a warranted property. TID is not liable for data loss, collateral damage or consequential damage, nor damages resulting from service disruption or delays, which might be caused by using or testing the contracted products or related failures. Demands according to §§ 1, 4 Product Liability Act are not affected.
9. Property rights
9.1. All rights regarding programs and related documents developed by TID and handed to the customer are retained by TID. The customer is not allowed to hand the delivered software in any form to third parties without previous written permission of TID. Employees of the customer are not considered third parties.
9.2. With regard to TID, the customer is also obliged to inform TID immediately, if third parties lodge a claim against the customer involving a violation of industrial property rights resulting from the software supplied.
9.3. The customer is obliged to treat the technical documents, given to the customer by TID, with strict confidentiality and shall not make these available to third parties or use these for any purpose other than specified by TID. In the case of a violation, the right to claiming damages is reserved.
10. Final provisions
10.1. The effectiveness of all other regulations and agreements shall not be affected, if a regulation of the present terms or a regulation within the scope of any other agreements is or becomes ineffective. This ineffective regulation is to be replaced by an effective regulation that serves its envisaged economic purpose as much as possible.
10.2. German law, excluding the uniform United Nations Convention on Contracts for the International Sale of Goods, is applicable to the present contract.