General terms and conditions for UCware GmbH
§ 1 Scope
1. All legal relations between UCware GmbH and its customers shall be governed by the general terms and conditions below in the version applicable at the time an order is placed. Any conflicting terms or conditions by Customer shall not apply, unless they are expressly adopted otherwise. These general terms and conditions shall apply even where UCware GmbH performs Customer's orders without prejudice despite being aware of conflicting or varying Customer terms and conditions.
2. These general terms and conditions shall also apply to all future legal relations between UCware GmbH and Customer or his legal successor, even where they are not expressly agreed again.
3. UCware GmbH reserves the right to subsequently amend these general terms and conditions where a provision is missing or where the contractual equilibrium is upset, inasmuch as this is reasonable for customers of UCware GmbH.
4. If required, UCware GmbH shall notify Customer of the changes to the general terms and conditions, stating expressly that these shall apply unless Customer objects within one month.
5. These general terms and conditions shall rank behind all other express agreements with customers of UCware GmbH and shall therefore not apply where they conflict with these.
§ 2 Delivery and performance
1. Offers by UCware GmbH create no obligation of any kind and are subject to delivery to UCware GmbH by our supplier. The contract shall become effective upon written order confirmation by UCware GmbH, but no later than upon acceptance of delivery by Customer.
2. UCware GmbH reserves the right to make technical and creative design changes from the details specified in brochures, catalogues and other documents, as well as changes to the model, construction design and material as part of technical progress and continued development and no rights shall be derived from these against UCware GmbH.
3. UCware GmbH expressly reserves the right to perform reasonable partial deliveries and to send invoices for these.
4. Agreed delivery dates shall be considered as met where the licensed product is handed over to the carrier on the agreed delivery date, provided no other express agreement has been made. Where shipment is delayed for reasons within Customer's sphere of risk, licensed products may be placed in storage at Customer's risk and expense.
5. Expected delivery dates are determined based on the expected capability of UCware GmbH and are without obligation. Express delivery dates are subject to delivery by our suppliers following a covering purchase. Where delays are due to circumstances that are not the responsibility of UCware GmbH, particularly force majeure, adverse acts of government, refusal by authorities to grant permission, industrial action, sabotage or an unforeseeable shortage of raw materials, the delivery time shall be extended accordingly.
6. Inasmuch as the development and/or supply of software is a deliverable, sole responsibility for installation, implementation and configuration rests with Customer unless otherwise agreed by the parties.
7. Where Customer delays acceptance or culpably breaches any other duty of cooperation, we shall be entitled to claim compensation for all resulting damage including any additional expenditure. We reserve the right to make further claims. In the above circumstances, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to Customer at the point in time when he delays acceptance or the debt is in default.
§ 3 Documents, documentation and plans
In view of the fact that payments for deliverables are made at regular intervals, the parties agree that documentation shall be prepared and made available to Customer only where UCware GmbH considers this necessary or where it is expressly requested by Customer before commencement of performance. In such a request, Customer must specify the purpose, scope and detail of the required documentation. There is no obligation to provide any other documentation in whatever form.
§ 4 Prices and payment terms
1. All prices indicated by UCware GmbH are ex warehouse from Braunschweig. Value added tax (VAT) and any other statutory duties and levies in the supplier country, as well as packaging, transport costs, transport insurance, recycling and handling fees, and travel costs are charged to Customer as appropriate.
2. UCware GmbH reserves the right to increase prices within a reasonable range in the event of cost increases incurred by UCware GmbH following conclusion of the agreement which are not the responsibility of UCware, particularly resulting from price increases by suppliers or exchange rate fluctuations. UCware GmbH shall give proof of such increases to Customer on request.
3. Invoices are due immediately without any discount. Invoices are sent with the goods. Cheques shall be accepted only on account of payment. Where Customer falls behind with his payments, UCware GmbH reserves the right to claim default interest in accordance with statutory provisions.
§ 5 Retention of title
1. UCware GmbH makes warranties and representations regarding the quality of the deliverables only inasmuch as this has been expressly agreed.
2. Where the review of a defect notification shows that the defect is not covered by warranty, UCware GmbH is entitled to claim reimbursement of all expenses. Review, repair and travel costs are charged at UCware GmbH's service prices applicable at the time.
3. Where UCware GmbH performs services under a contract for services, the following shall apply:
UCware GmbH shall not owe Customer a specific result. However, it shall perform the services with the greatest possible care. Where UCware GmbH does not perform the services as agreed under the contract for reasons that are within its responsibility, it shall be obliged to perform the services at no additional charge for Customer within a reasonable period of time. This requires notification by Customer, which shall be given immediately after he becomes aware of it. Customer is obliged to immediately review and inspect all services performed by UCware GmbH in detail. Where UCware does not succeed in performing major parts of the services agreed under the contract for reasons that are the responsibility of UCware GmbH, even within a reasonable extension expressly set by Customer, Customer shall be entitled to terminate the agreement for the individual order without notice. Where, due to non-contractual performance and after lapse of the extension without success, taking into account all the circumstances of the individual case and considering both parties' interests, it would be unreasonable for Customer to continue any contractual relationship or any further individual orders between the parties, Customer shall be entitled to cancel these altogether or partially.
In the case of a termination without notice, UCware GmbH is entitled to payment for the services performed until the effective date of termination. There shall be no payment for services that Customer can show to be not usable and of no interest to him within four weeks of notice being given.
This does not affect the right of termination for cause due to another major reason.
In such cases, UCware GmbH is also entitled to payment for the services performed until the effective date of termination. There shall equally be no payment for services that Customer can show to be not usable and of no interest to him within four weeks of notice being given.
4. Where UCware GmbH performs services under a contract for work, these shall require acceptance. Where services performed under a contract for work are defective, UCware GmbH shall remove the defects within a reasonable time following notification or replace the work (replacement). Beyond these provisions, the statutory rules shall apply, subject to the liability provisions in Item 12. The right of withdrawal is limited to the individual services.
The warranty period shall run for a period of twelve months starting with full acceptance of the work by Customer.
5. Where UCware GmbH performs services under a sales agreement and the delivered goods are defective, UCware GmbH shall remove the defects or deliver goods without defects within a reasonable time following notification (replacement). Where replacement fails, Customer shall have his statutory rights, subject to the liability rules in Item 12. The right of withdrawal is limited to the delivered goods.
A failure of repair or replacement can only be assumed where UCware GmbH has been given adequate opportunity for repair or replacement but the desired result has not been achieved; where repair or replacement has been made possible; where UCware GmbH has refused or delayed it for an unreasonable length of time; where there is reasonable doubt regarding potential success; or where it would be unreasonable for other reasons.
The warranty period shall run for a period of twelve months starting with delivery of the sold goods to Customer.
6. Where UCware GmbH performs services under a rental agreement, all liability for defects in the rented goods that existed already upon conclusion of the agreement is excluded. Beyond these provisions, the statutory rules shall apply.
7. Warranty claims shall not be accepted in the following cases: minor variations from the agreed quality; slightly impaired usefulness; natural wear or tear such as damage occurring after the risk has passed and resulting from improper or negligent handling, excessive loads, unsuitable resources or equipment, defective building work, unsuitable land or special external influences that are not assumed under the agreement. Where Customer or a third party carries out improper maintenance work or modifications, all warranty claims for these and any resulting consequences shall be excluded.
§ 7 Duties of inspection and notification
1. Customer is obliged to inspect the delivered goods, produced work and delivered services for visible defects that would be easily noticeable by an average customer. Such obvious defects include the absence of user documentation and considerable damage that is clearly visible. They also include cases where different goods/work or insufficient amounts are delivered/produced. UCware GmbH must be notified in writing of such obvious defects immediately but no later than within seven days following delivery/production of goods or services.
2. Customer must also notify UCware GmbH in writing of any defects that become obvious later within seven days after they are noticed.
3. Where the duties of inspection and notification of defects are breached, the deliverable shall be considered as accepted.
§ 8 Customer's duties of cooperation
1. One crucial factor in the success or failure of collaboration is Customer's cooperation in the implementation of the projects to the best of his ability and the extent of his cooperation. Customer therefore undertakes to provide the best possible active support to UCware GmbH during performance. In particular, Customer undertakes the following:
a) To make available to UCware GmbH any information, documents and materials required for contract performance, in particular any requirements profiles, functional or other specifications, source and object codes, control and data flow charts and other diagrams, developer and user documentation etc. for the purpose and term of contract performance.
b) To grant UCware GmbH and its employees and agents deployed under this agreement access to any system(s) and installations that are the subject of this agreement, especially hardware and software, and to cooperate as requested in the implementation of remote maintenance work.
c) To work with sufficient and suitable staff and to provide the necessary system requirements infrastructure for maintaining or achieving the smooth functioning of the overall system throughout the performance of this agreement.
d) To notify UCware GmbH without delay of any faults, defects or disruptions in the IT infrastructure.
e) To agree with UCware the necessary appointments and meetings as appropriate for performance of the agreement and, in case of doubt, to consult with UCware GmbH in good time.
f) To ensure that data backups are created regularly, normally daily, adequately and properly.
2. Where Customer does not meet his duties of cooperation, any specified periods of time shall accordingly be extended as appropriate. This does not affect UCware GmbH's right to make further claims.
§ 9 Location
UCware GmbH shall determine the location based on considerations of expediency. The performance of work by way of remote maintenance is permitted.
§ 10 Granting of rights
Provided there is no other individual agreement, all rights to the work results, i.e. to all deliverables produced and services provided by UCware GmbH under this agreement, rests with UCware GmbH. However, UCware GmbH shall grant Customer a simple non-transferable right of use to the work results for an area limited to the territory of the Federal Republic of Germany and for the duration of the relevant individual order. This does not affect the minimum statutory rights associated with the granting of rights, so Customer has in particular the right to install software components on a non-volatile medium (such as a hard disk); to copy them to another storage device (such as a tape drive) for backup purposes; and to load them into the computer memory, a buffer, a cache or the memory of the graphics card. However, subject to the provisions of Section 69d of the German Copyright Law UrhG, he shall not have the right to duplicate or edit them, to distribute them in unmodified or modified form, to communicate them to the public, to issue sublicences or to transfer the rights of use granted under this agreement for a fee or free of charge.
§ 11 Third-party property rights
1. Each party states that all materials, business secrets, computer programs, technical procedures, documentation, plans, drawings, graphics etc. to be introduced and used under this agreement or to be made available to the respective other party are not subject to any third-party rights, or that the party has at least the right to pass them on for performance of the framework agreement and the individual orders and to let the respective other party use and modify them as appropriate. Each party shall ensure that it holds all rights required for performance of the agreement or that is has acquired them through appropriate agreements with, for instance, its employees, freelancers or other contractors, or agents.
2. Where a third party brings a claim for infringement of copyright against one of the parties, the respective other party who has contributed the relevant item to the agreement shall indemnify and hold harmless the party against whom the claim has been brought from all resulting claims, in particular claims for damages and costs for legal representation of an appropriate level. This indemnity shall be made subject to the condition that an out-of-court settlement or a recognition of the claims brought by the third party shall be made only following prior written consent.
3. Where a claim for infringement of copyright is brought by a third party, each party shall notify the respective other party and make available to that party the information required to refute the claim brought and provide any other appropriate support.
§ 12 Disclaimer and limitation of liability
1. UCware GmbH accepts no liability for breaches in minor negligence, provided these do not concern injury to life, body or health, or warranties or claims under the product liability law. Furthermore, this does not affect liability for breaches of duties whose fulfilment goes to the root of the contract and that Customer can regularly rely on ("Kardinalpflichten"). UCware GmbH accepts no liability for the loss of data where the damage results from failure on the part of Customer to back up data in accordance with Item 8 No. 6, thus ensuring that lost data can be restored with reasonable effort.
2. The same applies to the liability of the representatives, bodies, employees and agents of UCware GmbH.
3. This shall not affect the provisions of Item 11 of this agreement.
§ 13 Right of set-off and lien
Customer shall exercise set-off rights or liens only with unchallenged or legally established claims. Buyer shall be entitled to exercise a lien only where his counter-claim is based on the same contractual agreement.
§14 Transfer of claims
Customer may transfer claims arising under this agreement only with the consent of UCware GmbH.
§ 15 Export and import licences
1. The products and technical expertise delivered by UCware GmbH are intended for use in the destination country agreed with Customer. The re-export of contract deliverables by Customer – either individually or as part of a system – requires a licence and is in all cases subject to the export regulations of the Federal Republic of Germany or any other destination country agreed with Customer. Customer is obliged to enquire about these rules himself, contacting the Federal Office for Economic Affairs and Export Control (BAFA), 65760 Eschborn/Taunus about German regulations, or the US Department of Commerce, Office of Export Administration, Washington, D.C. 20230 about US regulations. Whether or not Customer specifies the final destination of the delivered contract deliverables, responsibility for obtaining any licence that may be required from the responsible export authority before exporting such products rests with Customer himself.
2. Any onward delivery of deliverables by Customer to a third party, with or without the knowledge of UCware GmbH, requires transfer of the export licensing regulations. Customer shall be liable to UCware GmbH for proper compliance with these regulations.
§ 16 EU import VAT
1. Where Customer is registered outside Germany, he is obliged to comply with the rules on import VAT on goods imported into the European Union. These include in particular disclosure of his VAT identification number to UCware GmbH without prior request. On request, Customer is obliged to make available to UCware GmbH the necessary information concerning his status as an enterprise, the use and transportation of the delivered goods, and his duty to report statistics.
2. Customer is obliged to reimburse UCware GmbH for any costs, particularly administrative fees, incurred as a result of inadequate or incorrect information provided by Customer on import VAT.
3. UCware GmbH accepts no liability except in cases of intent or gross negligence for consequences arising from the information or relevant data provided by Customer on import VAT.
§ 17 Written form and subsidiary agreements
There are no subsidiary agreements. All changes or amendments to this agreement must be made in writing. The same shall apply to dispensing with the requirement of the written form.
§ 18 Severability clause
Should any of the provisions in this agreement or associated individual agreements or appendices be or become void, either in total or in part, this shall not affect the validity of the remaining provisions in this agreement. The invalid provision shall be replaced with the corresponding statutory provisions.
§ 19 Place of jurisdiction and choice of law
1. Where Customer is a merchant, a legal person under public law, or a public special fund, the exclusive place of jurisdiction for all disputes arising from or in relation with this agreement is Braunschweig. This does not affect the right to assert legal claims against Customer at his general place of jurisdiction.
2. All legal relations between the parties arising from and in relation with this agreement shall be governed by the law of the Federal Republic of Germany, excluding the laws on the international purchase of movable goods and international private law.