Terms and conditions
Status: July 2020
Terms and Conditions of Contech Software & Engineering GmbH
Subject matter, scope of application The following General Terms and Conditions of Contech Software & Engineering GmbH (“Contech” or “company”) are integral part of all contracts. General Terms and Conditions of contracting party shall not apply, even without express opposition by Contech. This also applies to following contractual relationships.
Price increase The increase of labor and material costs or value added tax after conclusion of the contract, will be charged to the costumer, if the delivery takes place more than four months after conclusion of the contract. In case of a price increase over 5%, the costumer may withdraw from the contract.
Authority to issue instructions Contech alone is authorized to issue instructions to its employees. They shall not be integrated into the client’s business. Contech decides which employees it will deploy. Contech is allowed to assign freelancers and subcontractors.
Performance time, performance dates, delay Events of all kinds for which Contech is not responsible (cessation of work, operational disruptions, transport disruptions, delivery blockages, etc.) shall release Contech from its obligation to provide services for the duration of the hindrance. Fixed dates have to be agreed in written form. Performance dates shall begin 20 working days after signing the contract. In case of contract amendments, delivery dates and periods have to be newly agreed. If compliance with them depends on a customer obligation, they shall be extended/postponed by the period corresponding to the delay plus an adequate time of restart. In the case of entrepreneurs, legal entities under public law and special funds under public law, timely self-delivery is generally reserved.
Obligation to cooperate The client shall support Contech in the provision of services. The client shall guarantee the proper running of his IT systems and, if necessary, provide staff. He shall grant Contech access to his own IT systems, either directly or via remote data transmission, answer questions and check results.
Change Request Procedure Changes to the scope of services initiated by the client have to be remunerated regularly. Dates are postponed accordingly. Contech shall inform the client within 10 working days, whether the requested change is executable and shall simultaneously make a corresponding offer including dates and deadlines. The offer can be accepted within 10 working days. Changes concerning the performance shall be documented at least in written form.
Acceptance Services provided by Contech for the purpose of achieving a specific result require acceptance. Contech always requires a formal acceptance declaration with acceptance protocol in written form and indicates readiness for acceptance in written form. 5 working days after receipt of the notification, the contracting parties begin with the acceptance. Contech shall provide proof of fulfilment of the performance characteristics in accordance with the contractually specified acceptance criteria by means of test data and test scenarios to be provided by the client. The client shall immediately accept the work performance after the successful acceptance test. Insignificant deviations do not entitle to refuse acceptance. Contech’s obligation to rectify errors shall remain unaffected. The productive use of performances or the launch by the client shall be deemed as acceptance. The acceptance of independently usable individual works or sub works can be done separately. In the event of later acceptance tests, only the functioning of the new sub work and the correct interaction of the previously accepted sub works with the new sub work shall be checked. Contech may provide information on completion in text form in order to cause the fiction pursuant to § 640 BGB.
Material, legal and performance defects Claims from material & legal defects shall become time-barred within 12 months of acceptance. In the event of proven material defects, Contech shall provide warranty in the form of supplementary performance, at its own discretion by providing a new, defect-free service or by remedying the defect. This may also consist of Contech showing the client reasonable possibilities for avoiding the effects of the defect. In the event of legal defects, Contech shall provide supplementary performance by providing the client with a legally unobjectionable possibility of using the delivered service or, at its discretion, an exchanged or modified equivalent service. If a defect only can be removed by a new state of software, the client has to accept this as long as the contractually scope of function remains unchanged and the takeover is not unreasonable. The urgency of the error correction depends on the objective degree of the operational hindrance. If the supplementary performance finally fails, the client may reduce the remuneration or withdraw from the contract or terminate a continuing obligation. Compensation for damages or reimbursement of futile expenses due to a defect shall only be owed within the scope of these terms and conditions. If a claim is made against Contech on account of alleged defects and it transpires that there is no defect or that this is due to a circumstance that does not give rise to claims for defects, the customer shall reimburse Contech for the costs incurred as a result. If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, he may demand elimination of the defect as supplementary performance. If this fails, his rights shall be determined in accordance with § 437 No. 2 and 3 BGB; the claim to subsequent delivery shall be excluded. In the case of the sale of used movable items to entrepreneurs, legal entities under public law or special funds under public law, claims for defects are excluded.
In the case of the sale of new movable objects or software to entrepreneurs and the production of new software for entrepreneurs as well as the sale of used movable objects to consumers, the claims for defects shall become time-barred one year after acceptance or handover of the object. §§ 438 Abs. 1 No. 2, 479 and 634 a Abs. 1 No. 2 BGB remain unaffected. Otherwise, the statutory limitation period of 2 years shall apply. Insofar as Contech is liable in accordance with the liability section, the statutory period of limitation shall apply. For work performance the limitation period shall start on acceptance. Commercial inspection of defects and reprimand duties shall remain unaffected. Contech provides no guarantee that the software is suitable for the purposes of the customer and that it will work together with software already in the user’s possession.
Transfer of risk If the customer is an entrepreneur or a legal entity under public law or a special fund under public law, the risk of accidental loss and accidental deterioration of the goods shall pass to the entrepreneur upon handover, in the case of sales shipments upon delivery of the goods to the forwarding agent or other person or institution designated to carry out the shipment.
Remuneration, due date, offsetting The remuneration is based on the valid price and conditions list. Partial services may be invoiced. Invoices are due immediately and payable 10 days after receipt of invoice. Discount and switching costs shall be borne by the customer. Contech shall be entitled to request appropriate advances and to issue partial invoices according to the progress of performance. The customer shall only be entitled to offsetting if his counterclaims have been legally established, confirmed by the court as ready for decision or recognized by Contech, unless the claim results from the same contractual relationship. The customer may only assign his rights with the written consent of Contech.
Rights to documents, embodied service results, rights of third parties Offer documents remain the property of Contech. Contech alone shall be entitled to exploitation rights to these documents. Contech grants the client the non-exclusive, permanent, irrevocable and non-transferable right to use embodied service results provided in accordance with the contract. All property rights and rights of use (including copyright) to existing and/or services and individual software created outside this agreement and contained in the work of Contech or one of its sub-contractors (including any extensions or changes made to them in the context of this agreement) shall remain with Contech or its sub-contractors.
Inventions made jointly by employees of the client and Contech or by employees of the respective affiliated companies during the provision of services shall belong jointly to both parties to the contract, as shall the right to apply for registration of the invention as an industrial property right and the industrial property rights granted to the invention. Each of the contracting parties shall have the right to use such industrial property rights and to grant licenses to third parties or to transfer their rights without notifying the other contracting party or making payments to him/her. Expenses for obtaining and maintaining a joint industrial property right shall be borne equally by the contracting parties. If one contractual partner (partially) waives the application, the other contractual partner can apply for the industrial property right in this country at his own expense and has full control over the application or maintenance, whereby both contractual partners remain the owner of the industrial property right in any case. If a third party asserts claims that conflict with the exercise of the contractually granted right of use, the client must inform Contech immediately and comprehensively. If the client ceases to use the work results in order to minimize damage or for other important reasons, he shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of the alleged infringement of industrial property rights. He hereby authorizes Contech to conduct the dispute with the third party entirely on its own. If Contech makes use of this, the client may not acknowledge the claims of the third party; Contech shall be obliged to defend the claims at its own expense. Contech shall release the client from the costs and damages that are attributable exclusively to Contech’s defense against claims.
Conciliation procedures, steering committees All disputes in which no agreement can be found are to be settled by an arbitration court before the initiation of legal proceedings or before the termination of the contract for a special reason, in order to settle the dispute in accordance with the arbitration rules. For this purpose, the parties mutually waive the plea of limitation for all claims arising from the disputed facts from the request for arbitration until one month after the end of the arbitration proceedings. The waiver causes the limitation period to be suspended. A conciliation proposal of the conciliator accepted by both parties binds both parties directly. If the conciliator determines the failure of the conciliation, the way to the ordinary courts is opened after 5 working days.
Source code All rights to the individual software remain with Contech. The release of the source code of individual software or extensions to standard software requires a written agreement.
Data verification function, Data security, Confidentiality and Data protection Data stored in electronic registers or otherwise in electronic form at Contech shall be admissible evidence of data transfers, contracts and payments made between the parties.
Client is responsible for proper and sufficient data backup. The contracting parties undertake to treat as confidential the contents of the contracts concluded between them and all knowledge of confidential information and company secrets of the other contracting party obtained within the framework of the fulfilment of the order and to use them only within the framework of the fulfilment of the order. The business secrets of Contech also include work results and services rendered. Client shall create the conditions for Contech to provide the agreed services without breaching data protection regulations. Contech observes the rules of data protection law. If Contech obtains access to the client’s hardware and software (e.g. for remote maintenance), this shall not be for the purpose of processing or using personal data in a businesslike manner. A transfer of personal data shall only take place in exceptional cases as a secondary consequence of the fulfilment of the contract by Contech. Contech shall be entitled to include the client in its reference customer list. Data stored in electronic registers or in electronic form at Contech shall be regarded as documentation of data transfers, contracts and payments made between the parties.
Contech may also collect, process and use the customer’s inventory data, billing data and usage data – insofar as this is necessary for the purposes of fulfilling this contract – without the express consent of the customer.
Contech may process and use the inventory data for other purposes (namely consulting, advertising and market research), provided the customer has given his express consent.
Data storage in the cloud The data storage takes place partly in the cloud. Should this not be desired, this must be communicated in writing. According to §146 Abs. 2a AO, this must be approved by the competent tax authority upon written application by the taxpayer. This may increase the costs of the services.
SEPA direct debits, payments, confirmation of arrival If the customer participates in the SEPA Direct Debit Scheme, he will be notified of the direct debit at least one working day in advance. The collection of recurring payments with equal amounts is announced once a year. Payments must be made immediately upon delivery of the goods without any deductions. The company reserves the right to refuse checks and other non-cash means of payment. Acceptance is always only on account of payment. Payments in foreign currency will be credited in accordance with the bank statement. Bank charges shall be borne by the customer. If a VAT-exempt delivery according to §§ 4 No. 1 lit. b) in connection with § 6 a UStG, the customer is obliged to return a signed confirmation of arrival within 30 days of conclusion of the contract, otherwise the VAT will be charged subsequently. Ownership of the object of purchase remains reserved until receipt of the confirmation of arrival or until payment of the subsequently invoiced VAT.
Liability Contech shall be fully liable for intent and gross negligence in accordance with the statutory provisions. In addition, Contech is already liable for any negligence in the event of damage resulting from injury to life, body or health, the Product Liability Act or the breach of contractual obligations, the fulfilment of which characterizes the contract and on which the customer may rely. There shall be no further liability.
Retention of title Contech shall retain its title until complete fulfilment of the contract, in dealings with entrepreneurs until all repayments already arising from the business relationship have been settled, or in close connection with the delivered goods any accessory claims (interest on use, damage caused by delay etc.).
- In the case of transactions against current account, the retention of title shall also be deemed to be security for the company’s balance claim. The treatment or processing, assembly or other utilization of goods subject to retention of title is considered to have been carried out on behalf of the company. If the reserved goods are mixed, combined or blended with other items (“third party goods”), the customer shall assign his ownership or rights of ownership or co-ownership of the new item to the accepting company and shall keep it in safe custody for the company free of charge with the due diligence of a prudent businessman.
- If the customer sells goods subject to retention of title alone or together with third-party goods, he hereby assigns to the company accepting the assignment the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights. The value of the reserved goods is the invoice amount of the company plus a security surcharge of thirty-eight percent.
- All claims of the customer arising from contracts in connection with the processing or installation of the reserved goods are assigned in the same way. The advance assignment also extends to any balance claim. The customer is only entitled to resell, use or install the goods subject to retention of title in the normal and orderly course of business and only on condition that the claims in the sense of the above clauses are actually transferred to the company. The customer is not entitled to dispose of the goods subject to retention of title in any other way, in particular not to pledge them or assign them by way of security. The customer may not agree a prohibition of assignment with his customers.
- The company revocably authorizes the customer to collect the claims assigned in accordance with the above clauses. The company will not make use of the collection authority as long as the customer fulfils his payment obligations, also towards third parties. At the request of the company, the customer shall name the debtor of the assigned claim and provide comprehensive information – whereby it is not sufficient to grant the company access to books and business papers – and notify the debtor of the assignment. The company is also entitled to notify the debtor of the assignment itself.
Upon cessation of payments, application for or opening of insolvency proceedings or in the event of out-of-court agreement process with the creditors concerning the settlement of debts, the rights of the customer to resell, use or install the reserved goods and the authorization to collect the assigned claims shall expire. The customer must inform the company immediately, handing over the documents necessary for an objection, about enforcement measures of third parties on the goods subject to retention of title or on the (pre-)assigned claims. In the event of default of payment by the customer, the company is entitled to take back the reserved goods after a single reminder and the customer is obliged to hand them over. The customer grants the company the right to enter its premises, to mark or remove the delivered goods. The costs for the taking back are borne by the customer.
If the realizable value of the granted securities exceeds the claims to be secured by more than thirty-eight percent, the company is obliged to retransfer or release the securities at the customer’s request.
Applicable law and place of jurisdiction German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. Excluded from this choice of law is mandatory consumer protection law applicable outside Germany. Contract language is German. For disputes between merchants, Munich is the place of jurisdiction.
This English version of terms and conditions only fulfils the duty to inform. Legally, the German version applies.