General Terms and Conditions
§ 1 Scope of agreement
These general terms and conditions shall apply for all software and service contracts effective between customer and TEDATA Gesellschaft für technische Informationssysteme, Koenigsallee 45, 44789 Bochum, Germany (hereinafter “TEDATA”). The contractual relationship between the parties shall be governed exclusively by these terms and conditions. Any other General Terms and Provisions of the customer shall not apply even if TEDATA has not explicitly opposed.
§ 2 Form of agreement
A software and service contract comes into effect upon order of the customer and acceptance of TEDATA. It contains the designation, kind and quantity of purchased licenses and products.
§ 3 Conditions of payment, Due Date
Invoice has to be settled within 10 days after delivery of the data medium without any reduction. Value added tax has to be additionally included if applicable.
§ 4 Subject and Period of Delivery
TEDATA shall transfer the product ("license") as described in the offer.
(1) Agreed delivery time can be extended by up to three months in case of force majeure, i.e. inevitable events, strikes etc.
§ 5 Reservation of title
The goods ordered by the customer remain property of TEDATA until the full payment of all allowances from this contract. If the contract partner breaches the contract, especially if they are in default of payment, TEDATA is entitled to repossess the goods subject to reservation of title once TEDATA has provided an adequate grace period.
(1) In case that the software is provided as download TEDATA is entitled, after setting an appropriate time limit, to demand that the link and the software will be deleted if the buyer acts contrary to the contract. TEDATA may also demand a written confirmation of the deletion.
(2) If TEDATA repossesses the goods subject to the reservation of title, this represents a withdrawal from the contract. The contract partner shall bear the transport costs associated with the return of the goods. The seizure of goods subject to the reservation of title by TEDATA also represents a withdrawal from the contract.
(3) TEDATA is entitled to utilize the reclaimed goods subject to the reservation of title. The utilization proceeds shall, reduced by reasonable utilization costs, be offset against the buyer´s liabilities.
(4) The contract partner may use the goods subject to the reservation of title according to their intended purpose. The contract partner must treat the goods subject to the reservation of title with care and insure the goods against fire, water and theft damages at the original value.
(5) In the event of seizures of the goods subject to the reservation of title by third parties, or in the event of other interventions by third parties, the contract partner must immediately disclose TEDATA´s ownership and inform TEDATA in writing, so that TEDATA is able to enforce its rights of ownership. If the third party is unable to reimburse TEDATA for resulting court or out-of-court costs, the liability for these costs shall pass to the contract partner.
§ 6 Material defects and defects of title
The software will be supplied in the agreed condition and will be suitable for the purpose implied by the contract. In the event that no agreement has been made, the delivery item will be suitable for its usual purpose. The delivery item will satisfy the criterion of practical usability and will be of the quality customary for software of this kind. However the software will not be error free. A functional impairment of the program due to hardware defects, environmental conditions, improper operation or similar is not a defect. Any insignificant reduction in quality will be disregarded.
(1) In the event of material defects, TEDATA may effect supplementary performance as an initial step. The supplementary performance will at TEDATA´s option take the form of rectification of the defect, delivery of another item that does not have the defect or demonstration by TEDATA of possible ways in which to avoid the consequences of the defect. A minimum of three attempts at rectification must be made in the event of a defect. A new equivalent version of the software or the equivalent previous software version must be accepted if this is a reasonable solution for the customer.
(2) The customer shall assist TEDATA with the error analysis and rectification of defects, in particular by providing a precise description of the problems encountered, by supplying TEDATA with comprehensive information and by granting TEDATA sufficient time and opportunity to carry out the error analysis and rectification of defects. TEDATA may at its own option rectify the defects on site or at its own business premises.
(3) TEDATA can demand reimbursement of any extra expenses incurred as a result of the fact that the software has been modified, used outside of the specified environment or inappropriately operated.
(4) TEDATA guarantees that no third party rights conflict with using the software in accordance with the contract. In case of defects of titles, TEDATA shall, at its discretion, provide the customer the possibility of legally unobjectionable use of the software or equivalent software.
(5) TEDATA can claim reimbursement for expenses if no defect is found and if the customer has claimed the defect negligently. The burden of proof shall be with the customer. § 254 BGB [German Civil Code] shall apply.
§ 7 Liability:
In case of intention or gross negligence, also on part of any persons assisting TEDATA in the performance of their obligations, TEDATA shall be liable in accordance with the applicable laws.
(1) The same shall apply in case of a damage caused by negligent violation of life, body or health.
(2) In case of a damage to property or a financial damage, TEDATA as well as any persons assisting TEDATA in the performance of obligations, shall only be liable in case of breach of an essential contractual obligation, subject, however, to a maximum amount equal to the damage which was foreseeable at the time of conclusion of the contract and typical for the contract; essential contractual obligations within the aforesaid meaning are such obligations the fulfilment of which is a prerequisite for performance of the contract and which the other party may generally expect to be complied with.
(3) Liability according to the German Product Liability Act and the German Equipment and Product Safety Act remain unaffected.
(4) Software products may contain data and legally binding standards with a validity that is time limited or will be replaced by revisions to be acquired.
(5) Licensing terms may contain deviating regulations regarding warranty (§6) and liability. These take precedence over these General Terms and Conditions.
§ 8 Assignment, offsetting and right of retention
The assignment or transfer of claims, rights and duties arising from or in connection with this agreement by the customer shall require the prior written authorization of TEDATA.
(1) Offsetting with counter-claims of the customer with regard to TEDATA or the retention of payments by the customer because of such claims shall only be permissible to the extent the counter-claims are undisputed or bindingly established in court.
§ 9 Applicable Law
These General Terms and Conditions shall exclusively be governed by and construed in accordance with German law.
(1) The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
§ 10 Place of jurisdiction
Place of jurisdiction shall be the registered office of TEDATA if the customer is acting on behalf of a company.
§ 11 Severability clause
Should any individual provision of this contract be or become invalid or impracticable, this will not affect the validity of the other provisions. The invalid or impracticable provision will be replaced by a provision that is as close as possible in economic purpose to the invalid or impracticable provision in a legally effective and practicable form.
Bochum, May 2017