SOLARSCHMIEDE Software GmbH
2. Contract conclusion and written form
Contractual obligations shall come about only if Contractor and Customer had set down in writing the type and scope of performance and consideration and a legally valid contract had been signed. Subsequent oral amendments and supplements shall only become effective after the written confirmation by both contracting parties. This shall also apply for all declarations of intent, particularly complaints, reminders and notices of defect within the scope of the contractual relationships. This clause may only be set aside by an explicit written agreement.
3. Subject matter of the contract
3.1 Subject matter of the contract shall be software developments according to the order and/or providing (licensing) software versions, modules and program parts for use.
3.2 The delivery of data carriers and accessories shall not be a component part of the software license.
4. Scope of performance
4.1 Solarschmiede Software GmbH shall provide the customer with the software placed according to the order, for use in the form of an executable program. The customer shall have neither any rights in the source code nor in its use.
4.2 The customer shall take over the software for the stipulated point in time. If the customer does not take over the software, it shall nonetheless be considered taken over, unless the customer proves that a material error on the part of Solarschmiede GmbH renders any use impossible.
4.3 Upon the customer’s request and for a separate fee, Solarschmiede Software GmbH undertakes to provide introduction into the operation of the software.
4.4 Performance information included in system analyses and other documentations merely present descriptions and are by no means any warranted characteristics.
5. Customer’s cooperation
5.1 The customer shall provide Solarschmiede Software GmbH without any delay with all information which it requires for fulfillment of the order.
5.2 Upon request, the customer shall make available adequate types and quantities of test data to Solarschmiede Software GmbH.
5.3 The customer shall bear any additional services resulting due to incorrect or faulty information by the customer. The same shall apply for any time delay for these reasons.
6.1 The stipulated compensations shall always be quoted plus the statutory value-added tax.
6.2 Traveling to and from the site shall be working time. The customer shall bear the costs for this, as well as expenses for possible room and board.
6.3 Additional copies of documentations and other software documents shall be separately charged.
7. Due dates and payment
7.1 Invoices shall be due immediately and paid at the latest within 14 calendar days as of the date of invoice.
7.2 For the development and adaptation of software, the customer shall be obligated to pay an advance to be agreed upon in an individual contract.
7.3 If the customer is in arrears, Solarschmiede Software GmbH shall be entitled to charge interest in the amount of the interest rate for credits in current accounts calculated by commercial banks; at minimum, however, 5 % above the basic interest rate plus value-added tax.
7.4 If the customer rescinds from the contract for reasons which Solarschmiede Software GmbH is not responsible for and if it does not insist on contract fulfillment, Solarschmiede GmbH shall be entitled to charge 25 % of the agreed upon invoice amount to cover any costs already incurred and the lost profit.
8. License and scope of use
8.1 Against payment of the stipulated compensation, Solarschmiede Software GmbH shall grant the customer the non-exclusive and non-transferable license to use the software, modules and program parts.
8.2 The customer shall only use the products in combination with the hardware and software products approved by Solarschmiede Software GmbH. The customer shall treat confidentially the software and documentations and take corresponding security measures and safety precautions to protect them against the use by unauthorized persons. The customer shall not be permitted to duplicate or transmit to third parties the software or any handed-over documentations without the written consent by Solarschmiede GmbH.
8.3 The customer shall acquire the right to use the software on as many work stations set up in a local network as license fees had been paid. Basis of assessment shall be, in this respect, the number of licenses listed in the appropriate invoice as well as possible special agreements reached (volume scales, unlimited licenses, etc.). Work stations in the network shall also be home office workplaces that are part of the network, portable computers temporarily connected to the network, as well as remote workplaces. If these are merely substitutes for the workstations connected to the local network, they shall require no additional workplace licenses.
9. Ownership and copyrights
9.1 The software provided to the customer, including the entire documentation, shall remain in the ownership of Solarschmiede GmbH.
9.2 Solarschmiede Software GmbH shall remain the holder of all copyrights and rights of use in the programs provided to the customer, including the respectively pertinent documentation material, even if the customer changes it or connects it with his own programs and/or those of a third party. In case of such changes or connections as well as when copies are made, the customer shall provide a corresponding copyright notice.
9.3 The customer shall not be allowed to change the program code. Solarschmiede Software GmbH shall not be liable for any resulting damages if programs changed by the customer or by third parties are used or other programs not obtained from Solarschmiede Software GmbH and if the function of the system is impaired thereby.
10. Customer’s obligation
10.1 The programs provided as well as the documentation material shall not be made accessible, either wholly or in parts, to third parties with the intent of possible misuse.
10.2 The customer shall not change in any way – on the programs – any of the designations, copyright notices and ownership information of Solarschmiede Software GmbH.
10.3 The customer shall be obligated to replace Solarschmiede Software GmbH the damage incurred due to the violation of the above provisions; in cases of gross negligence, at maximum the amount of the license fee, except for deliberate acts.
11. Termination / rescission
11.1 Solarschmiede Software GmbH may terminate the contract effective immediately if the customer is in arrears, for more than 14 calendar days, with the agreed upon (down) payment of the license fee, and/or if the customer continues – even after a written warning – to breach a provision of these General Terms and Conditions or other individual contractual regulations.
11.2 In case of rescission, Solarschmiede Software GmbH shall be entitled – pursuant to clause 11.1 to a flat-rate damage payment in the amount of 25 % of the order value, due to non-performance. Solarschmiede Software GmbH shall reserve the right to claim higher damages.
11.3 The customer shall only be entitled to terminate this contract due to delayed performance on the part of Solarschmiede Software GmbH or due to non-rectifiable defects if Solarschmiede Software GmbH had not met its obligations and if the customer had warned Solarschmiede Software GmbH beforehand in writing and if a reasonable period of time had passed in which the claimed contractual violation had not been remedied.
12. Delivery, dates
12.1 Delivery dates and delivery periods shall be basically non-binding orientation guidelines, unless they had been explicitly agreed upon as fixed dates in writing. Solarschmiede Software GmbH shall reserve the right to adjust the specifications of the licensed product, e.g. to technical developments, amendments of laws or future market requirements.
12.2 Solarschmiede Software GmbH shall only guarantee perfect operation of the software on hardware systems which it had authorized.
13.1 For a period of six months from the time of surrender, Solarschmiede Software GmbH shall warrant that the software, in terms of its operating modes, is essentially consistent with the descriptions in the manual or in the documentation, respectively. If the customer is a consumer as defined by the German Civil Code, the warranty period shall be two years.
13.2 Liability for a specific quality shall only exist if this had been warranted explicitly and in writing in the order.
13.3 Solarschmiede Software GmbH points out that it is not possible, according to the state of the art, to produce computer software entirely free from defects.
13.4 Immediately after delivery, the customer shall examine any standard software and notify Solarschmiede Software GmbH in writing and without delay of any apparent errors.
13.5 If software errors occur, the customer shall be obligated to notify Solarschmiede Software GmbH thereof in writing within two weeks. As part of the written notice of defect, the defect and its manifestation shall be described such that a review of the defect is possible (e.g. submission of error messages) and any operating error can be excluded (e.g. indicating steps in operation).
13.6 If the notice of defect proves to be justified, the customer shall grant Solarschmiede Software GmbH a reasonable period of time for rectification. The customer shall advise the sort of subsequent performance he desires – remedy of the delivered item or delivery of a new item free from defects. Solarschmiede Software GmbH shall be entitled to reject the chosen subsequent performance if it can only be done at unreasonable costs for the company and if the other kind of subsequent performance would not bring about any substantial disadvantages for the customer. Moreover, Solarschmiede Software GmbH may entirely reject any subsequent performance if it can only be realized at disproportionate costs for it..
13.7 Solarschmiede Software GmbH shall be entitled to three attempts of realizing subsequent performance for the same defect or for a defect directly related to it. After the third failed attempt of realizing the subsequent performance, the customer may rescind the contract or claim a reasonable reduction. The right of rescission or reduction may already be exercised after the first unsuccessful attempt at subsequent performance if the customer cannot be expected to accept a second attempt within the specified period. If subsequent performance was rejected under the above stated prerequisites, the customer shall be immediately entitled to the right of reduction or rescission.
13.8 Any rescission due to a negligible defect shall be excluded.
13.9 If a remedy of defects is actually impossible or unreasonable for economic reasons, Solarschmiede Software GmbH shall be entitled to install a workaround solution if this will result in a workable solution of the problem.
13.10 If the customer asserted claims against Solarschmiede Software GmbH for warranty and if it turns out that there is either no defect or if the claimed defect does not obligate Solarschmiede Software GmbH to perform under warranty, then the customer shall compensate Solarschmiede Software GmbH for any and all expenditures incurred if the customer had been responsible for having asserted the claim in gross negligence or willfully against the company.
13.11 Immediately after the installation as well as after any work for the remedy of defects, maintenance work or after other interventions by Solarschmiede Software GmbH, the customer shall check the EDP system to verify whether the backup data is still functional, and the customer shall record the results in writing.
14. Limitations of liability and statute of limitations
14.1 Solarschmiede Software GmbH shall be liable in case of intent and gross negligence in accordance with statutory provisions. In case of minor negligence, Solarschmiede Software GmbH shall only be liable if an essential contractual obligation (cardinal obligation) is violated, or in case of delayed performance or impossibility. In case of slight negligence, this liability shall be limited to damages which are typical or foreseeable.
14.2 In case of asserting claims against Solarschmiede Software GmbH for liability, any contributory fault or negligence by the customer shall be reasonably taken into account, especially in case of inadequate error reporting or inadequate data backup. Inadequate data security shall exist, in particular, if the customer had failed to take precautions – by means of adequate, state-of-the-art security measures against impacts from the outside – especially against computer viruses and other phenomena which might jeopardize individual data or the entire database.
14.3 The period of limitation for non-essential contract violations shall be limited to two years.
Any software for which rights of use are granted only for a limited period of time and which is installed on data carriers owned by Solarschmiede Software GmbH shall be handed over to it after the end of the contract, and such software shall, otherwise, be deleted on the customer’s own data carriers; the deletion records shall be provided to Solarschmiede Software GmbH.n.
16. Choice of law, place of performance and jurisdiction
16.1 Any and all business relationships with the customer shall be exclusively subject to the law of the Federal Republic of Germany. If this law makes reference to foreign legal systems, such references shall be invalid. The application of the UN Sales Convention (UNCITRAL) shall be explicitly excluded.
16.2 Munich shall be the place of performance for deliveries and services.
16.3 Munich shall be the place of jurisdiction for both parties; however, Solarschmiede Software GmbH shall be entitled, at its discretion, to assert claims at the customer’s place of jurisdiction.
17. Severability clause
Should individual clauses of these contractual terms or possibly additionally concluded individual agreements be invalid wholly or in parts, this shall not affect the validity of the remaining clauses. The invalid clause shall be replaced by another one which is valid in turn and comes closest to the invalid provision in its economic purpose and the declarations of intent originally intended by the parties.
AGB SolS Ver. 1.0 – 01.08.2014