General Terms and Conditions (T&Cs)
Registered Office: Gewerbepark Lindach D 3, 84489 Burghausen
§1 Contractual Basis and Subject Matter of the Contract
1.1 Contracting Parties
Subject matter of the following General Terms and Conditions (T&Cs) are the contracts between senswork GmbH (hereinafter referred to as "SWK") and the relevant contractual partners (hereinafter referred to as "customers"). The General Terms and Conditions are an integral part of the contract and apply to all deliveries, supplies and other services provided by SWK, in particular for standard software supply, software development and software adaptations.
Contracts between SWK and the customer are concluded exclusively on the basis of the following General Terms and Conditions. The customer accepts these General Terms and Conditions. They shall in particular also become an integral part of the contract, if they contradict the respective terms and conditions of the customer in full or in part. All deviating terms and conditions are not binding for SWK, even if SWK has not expressly objected to them.
§2 Order Placement
2.1 Offer and Conclusion of Contract
Unless agreed otherwise in writing, SWK's offers are non-binding. The conclusion of the contract shall only become valid, once SWK confirms the order in writing. The order confirmation from SWK is solely binding for the scope of delivery.
2.2. Deviations from the Offer
SWK reserves the right to implement technically induced deviations from the offer, if these are relevant under the given circumstances.
2.3. Absence of an Order Placement
SWK's rights of ownership, copyrights and industrial protection rights in respect of all documents provided for the purpose of submission of the offer, shall remain in force. The documents shall not to be made available to a third party without SWK’s prior consent. All documents submitted are to be returned to SWK immediately, if no order is placed.
§3 Consultancy Services
In case of an order to this effect, which is expressly included by the subject matter of the contract or has been agreed separately by the parties, SWK will also provide consultancy services during the installation and integration into the customer's IT structure. This consultancy service is provided on the basis of a service contract in the sense of §§ 611ff BGB and excludes the occurrence of a concrete success in this respect. The scope of consultancy services is determined by the underlying order. The fees arising from the execution of the consultancy services are specified in the consultancy order.
§4 Terms of Remuneration and Payment
4.1. Scope of Payments
All prices are including the statutory VAT ex SWK's headquarters, i.e. excluding packaging and postage. The terms of payment stipulated for the order shall apply. Early payment discounts and other invoice deductions are not permissible. Nor does payment before the due date entitle the customer to deduct any amounts. Unless otherwise agreed, all payments are due upon issue of the invoice.
4.2. Default of Payment
The statutory regulations regarding default §§ 280, 286 BGB1 shall apply. The assertion of further claims for compensation by SWK remains unaffected.
4.3. Exclusion of Offsetting
Claims by SWK can only be offset by the customer, if they are undisputed or have been established as legally binding. The customer shall only be entitled to assert a right of retention as a result of counterclaims arising from this contract. This shall exclude the assertion of rights of retention by the customer from earlier or other transactions.
§5 Delivery Deadline and Deadline for Software Adaptation/ Software Development (hereinafter referred to only as "delivery deadline")
5.1 Start of Delivery Deadline
The delivery deadline commences on the day of SWK's written order confirmation. Adherence to the delivery deadline is subject to the on-time receipt of all documents and/or hardware or software to be provided by the customer, adherence to the agreed terms of payment and other contractual obligations. If these obligations are not fulfilled on time, the delivery deadline will expire and shall be rescheduled in consideration of SWK's operational requirements. This shall also apply, if changes or additions to the scope of the order are made by the customer. A new delivery deadline is then to be agreed accordingly.
5.2 Default of Acceptance
In the event of delays in acceptance by the customer, notification of SWK's readiness to deliver is sufficient to justify the delay in acceptance. Partial deliveries are generally admissible.
5.3. Extension of the Delivery Deadline by SWK
If non-compliance with the delivery deadline results from circumstances beyond SWK's control and thus to circumstances which are not controllable and for which SWK is not responsible, the delivery deadline shall be extended accordingly. SWK will notify the customer of the extension of the deadline and state the reasons. In these cases, a claim for damages by the customer is excluded. If the delivery deadline is not adhered to for other important reasons, SWK shall notify the customer of the delay. Liability for damages caused by the delay in delivery is excluded, if the delivery deadline is extended for good cause. Claims for damages as a result of a delay in the delivery caused by intent or gross negligence on the part of SWK remain unaffected.
§6 Customer's Obligations to Cooperate
In case the order has to be completed at the customer's premises, the customer assumes the following obligations to cooperate: Prior to the start of installation and completion at the customer's premises, the preparations required for the start of the installation work shall be completed by the customer, so that installation can be started immediately after the arrival of the SWK staff and carried out without any interruptions. During the installation, the customer shall keep all necessary facilities available, assist in the operation of all connected external devices and, if necessary, enable work to be carried out beyond the usual working hours. If the installation or initial operation is delayed for reasons within the customer's sphere of risks, the customer shall reimburse SWK for all additional work and shall bear the costs arising to SWK therefrom.
§7 Software License
The customer generally recognizes software licenses as being protected by copyright.
7.1. Scope of Use
The Software, whether as a whole or in parts, shall only be used on the PC or network for which it was acquired, and only on the number of workstations for which a license exists. Modifications, extensions and other interventions of any kind are not permitted.
7.2. Reproduction Rights and Access Protection
The customer may only reproduce the delivered software, if the respective reproduction is necessary for the software to be used. These necessary reproductions include the installation of the software from the original data carrier to the mass storage device of the hardware used, as well as loading the software into the RAM. Furthermore, the customer may make copies for backup purposes. Backup copies are only to be made in the absolutely necessary amount, and shall only be used for archiving purposes. The relevant data carriers shall also be labeled accordingly. The customer may not make further copies. If the customer has acquired a network license, the number of simultaneous access by users is limited to the number of licenses acquired.
7.3. Disclosure to Third Parties
The customer shall not make the software and the documentation provided available to a third party or use the software or parts thereof for the purpose of third parties or disclose the documents to third parties. Further rights to the software are not granted to the customer.
7.4. Contractual Penalties
In case of a violation of the license conditions, the customer shall pay a contractual penalty of EUR 25,000.00 for each violation.
§8 Reservation of Ownership
The SWK reserves ownership of the subject matter of the contract until full settlement of its claims arising from this and from other contracts concluded with the customer.
8.1. Default in Payment
In the event of a default in payment, SWK may request the return of the software programs, for which the reservation of ownership applies within a reasonable period of time, dispose of the items purchased elsewhere and, after payment has been made, deliver new programs to the customer within a reasonable period of time.
8.2. Third-Party Rights
If a third party asserts a right to the items purchased and/or parts thereof by seizure, attachment or in any other way, the customer shall notify SWK immediately in writing.
The customer does not acquire ownership of the fully or partially manufactured products by processing the subject matter of the contract. The processing shall be free of charge and exclusively for SWK. Should the reservation of ownership expire, the customer and SWK agree, that ownership of the goods, including the processed goods, shall be transferred to SWK. The transfer is accepted by SWK. The customer remains their gratuitous owner.
The customer undertakes to inspect the subject matter of the contract immediately - at the latest up to a period of eight working days after delivery. In the case of supply of software, this inspection obligation extends in particular to the completeness of the supplied data carriers and the documentation, as well as the functionality of basic software functions.
9.1. Notification of Defects
SWK shall be notified in writing of any defects, which are detected or can be detected during the inspection without delay, at the latest after a further eight working days. The defects shall be specified in as much detail as possible. If any defects are discovered, which could not be detected in the course of the regular inspection, the customer undertakes to notify SWK in writing, including a description of the defects, within eight working days after the defect became known to him. In case of a violation of the obligations of inspection and notification of defects, the subject matter of the contract delivered shall be deemed approved with regard to the defect in question.
9.2. Warranty Period
The deadline for the assertion of warranty rights is one year. The deadline starts with the delivery of the software and/or goods.
9.3. Warranty Rights, § 437 BGB1
SWK reserves the right to decide, whether to remedy the defects through repair or delivery of a new item. If the remedy of the defect can only be carried out at disproportionate expenses, SWK may refuse to remedy the defect. If the customer sets another reasonable deadline for remedy of the defect as a result of an unsuccessful attempt to remedy the defect, and in case the remedy of the defect fails again, or if SWK waives its right to remedy the defect in written, the customer shall be entitled to the statutory warranty rights pursuant to § 437 No. 2, 3 BGB1.
9.4. Exclusion of Warranty
The customer shall lose his warranty rights, if changes are made to the subject matter of the contract without explicit approval of SWK. The customer's right to prove, that changes are not in fact related to the error that occurred and do not significantly complicate the analysis and rectification of the error, remains unaffected.
9.5. Customer's Obligation to Cooperate
The customer undertakes to support SWK during the analysis and rectification of errors within the scope of all his possibilities. He shall, in particular and if necessary, immediately provide SWK with support data and access to the relevant documents.
The SWK shall be liable - irrespective of the legal reason - 1) for damages which result from gross negligence and intent 2) in the event of slight negligence on the part of legal representatives and/or agents with regard to a violation of material contractual obligations (cardinal obligations) as well as 3) for losses arising from injury to life, body or health, which result from a negligent violation of obligations by SWK or a legal representative and/or agent of SWK. 4) for claims arising from the product liability law and willful deception.
10.1. Liability for Slight Negligence, Liability Limitations
In the event of a violation of material contractual obligations resulting from slightly negligent conduct, the obligation for compensation shall be limited to the damage typically incurred. In addition, SWK's liability for loss of data is limited to the typical restoration of expenses, that would have incurred if back-up copies had been made on a regular basis and in accordance with the risk.
In all other cases SWK's liability - irrespective of the legal reason - is excluded. This also applies to the liability of employees, representatives and agents of SWK. If programs produced or licensed by SWK contain errors, that were unavoidable in view of the state of technology at the time of the conclusion of the contract, and if SWK can prove this in a reasonable manner, all claims arising from a violation of contract obligations shall lapse.
The assignment of rights and obligations arising from this contract by the customer are subject to SWK's prior written consent.
The customer undertakes to treat all information communicated to him within the framework of the contractual relationship confidential and to also oblige third parties, if they inevitably gain access to this information, to also treat it confidential.
§13 General Provisions
13.1. Written Form
Agreements different from these General Terms and Conditions are only valid if submitted in written form. Oral agreements require a written confirmation. The requirement of the written form is fulfilled by sending the document by email and/or fax.
Should individual or several provisions of this contract be or become fully or partially invalid/unenforceable, this shall not affect the validity and enforceability of the remaining provisions of this contract. In this case, the contracting parties undertake to agree on a provision that comes closest to the invalid or unenforceable provision in economic terms. The same shall apply in the event of loopholes in this contract with the corresponding proviso that the parties shall include a provision, which they would reasonably have included, taking into account economic considerations, if they had been aware of the loophole when the contract was concluded.
13.3. Governing Law
The law of the Federal Republic of Germany applies exclusively to all legal relations between SWK and the customer.
13.4. Place of Execution and Jurisdiction
The place of execution for all obligations arising from the contractual relationship is SWK's registered office. The place of jurisdiction is Traunstein. SWK shall also be entitled to take legal action at the place of the customer's registered office.
© senswork GmbH As of: 01/2018