§ 1 Area of validity
1.1 These General Terms and Conditions apply to all goods and services supplied by HM-Software, in particular to standard HM-Software, as well as HM-Software development, software customisation and other services. The presuppliers’ terms and conditions apply to the delivery of hardware and third-party software. A customer’s opposing or contradicting terms and conditions do not become in any way part of the contract even without explicit objection by HM-Software.
1.2 Side agreements with employees of HM-Software are subject to written consent by the management board. Contractual amendments become part of the contract, unless the customer revokes such amendments within four weeks after receipt of notification.
1.3 These General Terms and Conditions apply only to business partners who qualify as merchants as spelled out in § 24 AGBG.
§ 2 Offers
2.1 All offers made by HM-Software are subject to confirmation, provided no other written agreements exist. Without HM’s written order confirmation a contract does not become legally binding.
2.2 An order confirmation by HM-Software is decisive for the extent of delivery. The same applies to additions, alterations and side agreements.
2.3. HM-Software reserves the right for technical variances as they apply to the written offer even after an order’s confirmation. HM-Software also reserves all rights for cost estimates and other documents, including right of ownership, copyright and industrial property rights. None of these documents may be made available to third parties. All documents are to be returned without delay, if HM-Software is not awarded the purchasing contract.
§ 3 Prices and terms of payment
3.1 Prices are calculated from our place of business in Adelheidsdorf, exclusive of packaging and shipment, plus the legal VAT effective at the time of the contract conclusion.
3.2 The following terms of payment apply: in case of standard software, hardware and third-party software the purchase price becomes due upon delivery. These products do not require a site acceptance test. Purchase prices for software customisation and development are payable upon receipt of invoice. Other terms of payment need HM’s written approval. Charges for services rendered and travel expenses incurred become due right after completion of such services. In the event the customer is in default of acceptance (§ 4 no. 4.3) the remaining balance plus the legal VAT become due for payment immediately.
3.3 HM-Software does not grant cash discounts.
3.4 Withholding of payments due to customer claims not recognized by HM-Software is not permissible. The customer can only offset his claims against payment arrears that are indisputable or are found to be legally binding.
3.5 If the customer is in default, the amount owing will be charged at 4% p.a. above the
market rate of the Deutsche Bundesbank from the date of default. HM-Software reserves the right to claim additional damages caused by the delay of payment. It is left to the customer’s discretion to prove that no damage or only minimal damage has been incurred by HM-Software.
§ 4 Delivery terms
4.1 The terms of delivery start with the day of the written order confirmation by HM-Software. HM’s compliance with the terms of delivery require the timely receipt of all documents to be provided by the customer, respectively the allocation of hardware and deployment of software, presentation of all necessary permits, approvals, timely clarification and approval of the plans and compliance with the agreed terms of payment as well as all other contractual obligations. If these requirements are not met in a timely fashion the terms of delivery become invalid and have to be newly agreed upon, considering HM-Software’s operational necessities. Unless otherwise agreed, subsequent contractual changes result in the revocation of the previously agreed upon dates and deadlines and therefore need to be re-negotiated.
4.2 Software services of any kind, development and other services are considered concluded with the delivery of the storage medium and/or the developed system to the buyer.
4.3 In the event that the customer is in default of acceptance, the written notification of readiness for delivery by HM-Software is sufficient for justification of default of acceptance.
4.4 Partial deliveries are permitted.
4.5 Terms of delivery and services are prolonged adequately in case of war, an act of God or any other occurrence, for which HM-Software cannot be held liable and which may have significant impact on delivery schedules and scale of performance, in particular strikes or lock-outs at HM-Software, its suppliers or their respective subcontractors.
4.6 In case of non-compliance of the terms of delivery due to other reasons than those stated in § 4 no. 4.5 – the customer may in the event of a verifiable occurrence of damage caused by the delay of delivery and after notification in writing and specifying an adequate grace period – has the right to demand compensation in the amount of ½% for every completed week of delayed delivery up to a maximum of 5% of the value of the delivery’s portion that could not be commissioned due to the delivery delay. Damage claims for late deliveries above and beyond as those stated are ruled out, even after expiration of an additional grace period as agreed to by the supplier, unless the delay is caused by intent or gross negligence. In such a case compensation for damages is limited to the typical and foreseeable damage as defined by the contract. The customer’s right of cancellation of contract after expiration of an additional adequately conceded grace period remains unaffected.
§ 5 Transfer of risk
If the client is an entrepreneur as defined in § 14 BGB all deliveries are carried out at his own expense and risk.
§ 6 Services
6.1 All services like consulting, training, installation, compilation of customer requirement specifications, detailed specification, concept preparation, individual programming, software customisation, maintenance, commissioning, functional tests and acceptance will be charged on a time and material basis for each commenced hour (as per the hourly rates in effect at the time of completion according to the HM-Software price list). Travel expenses, the costs for overnight accommodation and incidental expenses as they may be incurred will be invoiced on an item-by-item basis. Such travel expenses will be calculated from Adelheidsdorf item-by-item or on the basis of a mileage flat rate. The amount charged for travelling time is already included in the flat rate. Additionally, itemised travel expenses will be charged in accordance with the pricelist effective at the time. Daily expense allowances will also be charged according to the HM-Software price list. Overnight stays will be charged on an itemised basis. It is understood that all prices quoted do not include the legal VAT.
6.2 External support services like remote maintenance, hotline support as well as all subsequent work will be charged on a time and material basis (according to the hourly rate of the HM-Software price list effective at the time) for each commenced ¼ hour. In addition the client is liable for any and all expenses incurred for data carriers and shipment.
6.3 Provided HM-Software is to render training, consulting or installation services, the customer is responsible for the following: to provide the necessary premises as needed for training and consulting services as well as the infrastructure, applicable documents and in-house personnel as needed. If installations are involved the client has to provide for the following requirements: necessary preliminary work has to be completed prior to the installation, enabling the HM-Software employee to start the installation work without undue delay and interruptions. During the installation work the client is obligated to provide for all required equipment and facilities needed, assist with the operation of all attached third-party devices and allow, if necessary, to proceed with the installation past standard working hours.
6.4 In case the client is in breach of his duty to cooperate as stated in § 6.3 he becomes fully liable for all costs incurred because of standby time or necessary additional travels by HM-Software employees at a later date.
§ 7 Software licence
7.1 The client recognises that all software including any subsequent updates eligible for being protected by copyright. The client is granted the right of utilisation for an unlimited period of time for the software. In case of trial or test installations or installations for demonstration purposes this non-transferable and not exclusive right is limited for a period of three months. The following terms apply:
7.2 Whether in part or in whole, the software may exclusively be used with the clients network only, for which it was acquired. It also may only be used on the number of workstations as the acquired licences stipulate. Alterations, modifications or other encroachments of any nature are not permitted. Duplication of software and documentation provided is permitted for backup purposes only. HM-Software issues no guarantee and is not liable for the condition of duplicated software.
7.3 The client is not permitted to place software and/or documentation at the disposal of third parties or make the software or parts thereof available to third-parties or give an insight into the documentation .
7.4 No further rights to the software shall be assigned to the customer.
7.5 The customer shall be obligated to pay a contractual penalty totalling € 100,000.00 for each incidence of violation of the terms of licence.
§ 8 Software customisation and development
Software customisation and developments rendered by HM-Software for contracts awarded the following terms apply:
8.1 The requirement specifications both parties have agreed upon as part of the contract is legally binding for all services to be rendered. Any alterations of or additions to the requirement specifications necessitate a written and mutually agreed upon instrument signed by both parties. Aforesaid instrument has to include all financial implications of any alterations and/or additions.
8.2 In case of missing a deadline due to the contract’s complexity, the client is to take arising technical problems and/or potential delivery difficulties into account when setting any grace period. If the client asks for additional customisation and/or additions the agreed upon target dates need to be rescheduled in due consideration of the actual additional expenditure.
8.3 Delivery of the final product is followed by an acceptance and eventually needed debugging procedure in accordance with below mentioned terms. Any further claims, particularly claims for damages due to delay of initial start-up respectively down times, are excluded.
8.4 The acceptance of software customisations and developments (customised software) takes place at once or after mutual consent not later than 30 days after delivery including HM-Software acceptance procedure or individually agreed upon test routines.
8.5 An acceptance procedure protocol will be issued which is to be signed by the client.
8.6 If there are no serious deficiencies – or only such which can be rectified in a reasonable manner as spelled out in § 8.7 – and the client refuses acceptance within 30 days after delivery, the delivery as well as the installation are considered as accepted.
8.7 Any existing defects that have been recorded and acknowledged in the acceptance protocol will be corrected by HM-Software within the scope of the order and its contractual obligations without additional costs to the client.
§ 9 Warranty
9.1 HM-Software guarantees that the software delivered includes all features mentioned in the specifications. Software deficiencies are replicable errors only by which program functions diverge repeatedly from the functions stated in the operations and service manual and errors do verifiably not result from hardware failure, system software deficiencies or failure of any other system component not delivered by HM-Software. HM-Software is not liable for software flaws that affect the contractual use insignificantly.
9.2 At HM-Software’s choosing flaws are rectifiable by way of software upgrade or by advising the client how to circumvent such flaws offering a given work-around. HM-Software assumes all additional expenditures for removal of defects, inclusive travel and transport expenses as well as personnel and material costs, up to the contractual purchase price provided these costs do not rise due to the fact that the sold item(s) has/have been moved to a location that is not the original place of installation. The client is to provide free of charge all needed computer equipment and documentation required for diagnostics and debugging.
9.3 From warranty excluded are all wear and tear parts and damages caused by normal use, misuse or subsequent improvements and maintenance or modifications that were not explicitly authorized by HM-Software.. The client forfeits any warranty if he himself or a third party undertakes modifications to the software, unless the client can proof that the defect is not a result of said modifications. If a notice of defects causes HM-Software expenses that are not caused by defects of any delivered HM-Software products the client is to compensate HM-Software for said costs. This applies in particular to incurred expenses for time used in fault finding. The client is not authorised to remove flaws himself or let them be removed by a third party and claim compensation for the expenses.
9.4 The warranty period of 24 months applies to standard software, hardware and third-party software and begins with the date of delivery, the warranty period for software customisations and developments (customised software) also is 24 months and starts with the date of acceptance.
9.5 If repeated attempts of rectification of errors by HM-Software prove unsuccessful or if HM-Software does not offer an updated program version, the client’s legal rights of reduction of compensation and cancellation of contract are renewed after written notice and stipulating a new and reasonable grace period.
§ 10 Liability
10.1 HM-Software shall only be liable for any damage caused by it or by any of its acting agents through gross negligence or for any deliberate breach of contract duties for which it is to blame. In the event of a deliberate breach of contract duties through ordinary negligence, HM-Software’s liability shall be limited to the damage typically foreseeable.
The same applies to the risk of secondary damage of warranted characteristics pursuant to §§ 463, 480 sec. 2 BGB and when the respective damage was based on its absence. In case of loss of or damage to data or data carriers HM-Software’s obligation to indemnify does not include the recovery of lost data.
Incidentally, any claims for damages against HM-Software for whatever reason are excluded. Claims pursuant to §§ 1,4 ProdHaftG (German product liability law) and claims resulting from impossibility or inability remain unaffected. As far as any liability is excluded or limited it also applies to the personal liability of HM-Software’s employees, representatives and acting agents. Any liability resulting from compulsory legal regulations or because of the absence of warranted characteristics remains unaffected as well.
10.2 All claims for damages against HM-Software, HM-Software employees or other proxies and acting agents lapse 12 months after their occurrence unless a shorter legal statute of limitation is in effect. Excluded are claims resulting from offences or any other reasons as stated in the ProdHaftG (product liability law); legal regulations for statute of limitation apply.
§ 11 Reservation of property rights
11.1 Any and all goods remain property of HM-Software until all existing claims against the client have been satisfied, including those to which HM-Software is legally entitled to outside of the contract.
11.2 Resale in the course of customary business is permitted.
11.3 By processing these wares the client does not gain any ownership rights to all or part of such wares. The processing takes place exclusively and free of charge for HM-Software. In case the reservation of proprietary rights expires due to unforeseen circumstances the purchaser and HM-Software agree that the ownership rights of the items processed transfer to HM-Software, who accepts conveyance. The purchaser remains its complimentary custodian.
11.4 When processing goods which still are third-party property HM-Software attains co-ownership on such new items. The scope of this co-ownership arises from the ratio of the goods’ invoice value HM-Software delivered to the invoice value of the remaining goods.
11.5 The client hereby conveys any and all arrears resulting from resale of goods subject to retention by HM-Software. This applies to processed goods as well. The client retains the right of sequestration of arrears after the assignment of such claim. HM-Software’s right to collect such debts remains unaffected. HM-Software is committed to not collect such debts as long as the client fulfils his payment commitment, is not in default and, in particular, there has not been a request for bankruptcy or arrangement proceedings. If this is the case HM-Software has the right to demand the disclosure of all ceded claims and their debtors and to surrender all respective documents and informs such debtors (third parties) of the cession.
11.6 HM-Software contractually commits itself to release the collateral it is entitled to by request if the collateral’s feasible value exceeds the secured arrears by more than 20%. The choice of the collateral to be released lies within HM-Software.
§ 12 Industrial property rights of third parties
The client is obligated to directly inform HM-Software of any occurred infringement of industrial property rights by a third-party as it pertains to delivered software. The costs for litigation remain with HM-Software. HM-Software reserves the right to make modifications to already delivered and paid for software at its own discretion if and when unjust claims of industrial property rights by third parties are made.
§ 13 Transferability of claims
The client is not authorised, to transfer any contractual rights or obligations in whole or part to third parties without the express and written consent of HM-Software. This also applies to warranty claims
§ 14 Authorisation of usage of user data
The client authorises HM-Software to process, save and assess all data gathered in the course of their business relationship according to § 28 BDSG (German data privacy law). HM-Software is prohibited to pass this data on to third parties.
§ 15 Final Clause
15.1 This contract and all of its parts remain effective even if some parts become void. Any possibly void clause is to be replaced accordingly so that the intended economic success is warranted as far as possible.
15.2 Any additional agreements or agreements that deviate from the aforementioned conditions are legally binding only when presented in writing.
15.3 Provided the client is a general merchant mentioned in the commercial register the legal domicile is HM-Software’s place of business. Nonetheless HM-Software is authorised to bring an action against the client at his residential judicial district. Provided the order confirmation does not state anything to the contrary HM-Software’s place of business is also its place of fulfilment.
15.4 For any and all legal dealings with HM-Software the laws of the Federal Republic of Germany apply, excluding the Uniform Law on the International Sale of Goods (CISG).