General Terms and Conditions of TOLERANT Software GmbH & Co. KG
(AV TOLERANT Software GmbH & Co. KG)
Disclaimer: This English translation of Terms and Conditions is for information purpose. The English translation is not legally binding. Only the original version in German is legally binding.
1. Remuneration, payment, performance protection, deadlines
Unless otherwise agreed, remuneration shall be calculated on a time and material basis at the Provider’s prices generally applicable at the time of conclusion of the contract. Remunerations are in principle net prices plus legally applicable value added tax.
The Provider may invoice on a monthly basis. If services are remunerated on a time and material basis, the Provider shall document the nature and duration of the activities and submit this documentation with the invoice.
All invoices shall be paid in full no later than 14 calendar days after receipt.
The customer may only offset or withhold payments due to defects to the extent that he is actually entitled to payment claims due to material defects or defects in title of the performance. Due to other claims for defects, the customer may withhold payments only to a proportionate extent taking into account the defect. Clause 4.1 shall apply accordingly. The customer has no right of retention if his claim for defects is time-barred. Apart from that, the customer may only offset or exercise a right of retention against undisputed or legally established claims.
The Provider retains title and rights to be granted to the Services until the remuneration owed has been paid in full; justified retentions for defects pursuant to Clause 1.3 sentence 2 shall be taken into account. Furthermore, the Provider retains title until all its claims arising from the business relationship with the Customer have been satisfied.
The Provider is entitled to prohibit the Customer from further use of the services for the duration of any default in payment by the Customer. The Provider may only assert this right for a reasonable period of time, as a rule for a maximum of 6 months. This does not constitute a withdrawal from the contract. § Section 449 (2) BGB remains unaffected. If the customer or his purchaser returns the services, the acceptance of the services does not constitute a withdrawal by the supplier, unless he has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the supplier. The customer may neither pledge nor assign by way of security items subject to retention of title or rights. The customer is only permitted to resell the goods in the ordinary course of business as a reseller on the condition that the customer has effectively assigned to the supplier its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment. By concluding this contract, the customer assigns its future claims against its customers in connection with such sales to the supplier by way of security, and the supplier hereby accepts this assignment.
Insofar as the value of the Supplier’s security interests exceeds the amount of the secured claims by more than 20%, the Supplier shall release a corresponding share of the security interests at the Customer’s request.
In the event of a permissible transfer of rights of use to deliveries and services, the customer shall be obliged to impose the contractually agreed restrictions on the recipient.
If the customer does not settle a due claim in full or in part by the contractual payment date, the supplier may revoke agreed payment terms for all claims. Furthermore, the Supplier is entitled to perform further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer authorised in the European Union. The advance payment shall cover the respective billing period or – in the case of one-off services – their remuneration.
In the event of the customer’s economic inability to fulfil his obligations towards the supplier, the supplier may terminate existing exchange contracts with the customer by rescission, continuing obligations by termination without notice, also in the event of an application for insolvency by the customer. § Section 321 BGB and Section 112 InsO remain unaffected. The customer shall inform the supplier in writing at an early stage of any impending insolvency.
Fixed performance dates shall only be expressly agreed in documented form.
The agreement of a fixed performance date is subject to the proviso that the Provider receives the services of its respective upstream suppliers on time and in accordance with the contract.
2. Cooperation, duties to cooperate, confidentiality
The Customer and the Provider shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider shall take place via these contact persons.
The contact persons shall take all decisions relating to the performance of the contract without delay. The decisions shall be documented in a binding manner.
The customer is obliged to support the provider as far as necessary and to create in his sphere of operation all conditions necessary for the proper execution of the order. To this end, he shall in particular provide necessary information and, if possible, enable remote access to the customer’s system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this shall be extended appropriately; the contractual partners shall agree on an appropriate arrangement for further effects. The customer shall also ensure that expert personnel are available to support the provider.
Insofar as it is agreed in the contract that services can be provided on site at the customer’s premises, the customer shall provide sufficient workplaces and work equipment free of charge at the request of the provider.
Unless otherwise agreed, the customer shall ensure proper data backup and failure precautions for data and components (e.g. hardware, software) which are appropriate to their type and importance.
The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated. Unless otherwise agreed, the relevant forms and procedures of the supplier shall be used for this purpose.
The Customer shall support the Provider in examining and asserting claims against other parties involved in connection with the provision of the service appropriately upon request.
This applies in particular to the Provider’s recourse claims against upstream suppliers.
The contracting parties are obliged to maintain confidentiality about business secrets as well as other information designated as confidential (e.g. in documents, records, data files) which become known in connection with the performance of the contract and neither to use nor disclose them beyond the purpose of the contract without the written consent of the other contracting party.
The respective receiving contractual partner is obliged to take appropriate confidentiality measures for business secrets and for information designated as confidential. The contracting parties are not entitled to obtain business secrets of the other contracting party by observing, examining, dismantling or testing the subject matter of the contract. The same applies to other information or objects obtained during the performance of the contract.
Business secrets and other information designated as confidential may only be disclosed to persons who are not involved in the conclusion, performance or execution of the contract with the written consent of the other contracting party.
Unless otherwise agreed, the obligation to maintain secrecy for other information designated as confidential shall end five years after the respective information has become known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time.
The contracting parties shall also impose these obligations on their employees and any third parties engaged.
The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks.
In this type of communication, they will therefore not assert any claims based on the absence of encryption, except to the extent that encryption has been previously agreed.
3. Disruptions in the provision of services
If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with deadlines (“disruption”), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. A contracting party shall immediately inform the other contracting party of the cause of a disruption occurring in its area and the duration of the postponement.
If the expenditure increases due to a disruption, the Provider may also demand payment for the additional expenditure, unless the Customer is not responsible for the disruption and its cause lies outside its area of responsibility.
If the customer can withdraw from the contract due to improper performance by the provider and / or claim damages instead of performance or claims such, the customer shall declare in writing at the provider’s request within a reasonably set period of time whether he asserts these rights or continues to wish the service to be provided. In the event of a withdrawal, the customer shall reimburse the supplier for the value of any the value of previously existing possibilities of use; the same applies to deteriorations due to use in accordance with the intended purpose.
If the supplier is in default with the provision of the service, the customer’s damages and reimbursement of expenses for the and expenses of the customer due to the delay shall be limited to 0.5% of the price of the part of the part of the contractual service which cannot be used due to the delay. The liability for delay is limited to a maximum of 5% of the remuneration for all contractual services affected by the delay.
In the case of continuing obligations, the liability shall be limited to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of the Provider.
In the event of a delay in performance, the customer shall have a right of rescission within the scope of the statutory provisions only if the right to withdraw from the contract only if the Provider is responsible for the delay. If the customer is entitled to claim claim damages or reimbursement of expenses in lieu of performance due to the delay, the customer shall be entitled to a 1% of the price of that part of the contractual service for each full week of the delay, of the contractual performance which cannot be used due to the delay, but not more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the services concerned for the full calendar year. calendar year. In addition and with priority, a percentage of the remuneration agreed on conclusion of the contract shall apply. agreed upon conclusion of the contract.
4. Defects in quality and reimbursement of expenses
The Provider warrants the contractually owed quality of the services. For an only deviation of the services of the supplier from the contractual quality, there shall be no no claims for material defects. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, software errors that cannot be reproduced or otherwise proven by the customer or in the event of damage caused by special external influences that are not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and elimination of a material defect.
Clause 6 shall apply additionally to claims for damages and reimbursement of expenses.
The limitation period for material defect claims is one year from the statutory commencement of the limitation period. The statutory periods for recourse pursuant to § 478 BGB shall remain unaffected. The same shall apply insofar as longer periods are prescribed by law pursuant to § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event of a wilful or grossly negligent breach of duty on the part of the Supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act. The processing of a notice of material defect by the customer by the supplier only leads to the suspension of the limitation period insofar as the legal requirements for this are met. This does not result in a new start of the limitation period. A supplementary performance (new delivery or rectification) can only have an influence on the limitation period of the defect triggering the supplementary performance.
The supplier can demand compensation for his expenses insofar as
a) he acts on the basis of a report without there being a defect, unless the customer could not with reasonable effort recognise that there was no defect, or
b) a reported fault cannot be reproduced or otherwise proven by the customer to be a defect, or
c) additional expenses are incurred due to the customer’s failure to properly fulfil its obligations (see also Sections 2.2, 2.3, 2.4 and 5.2).
5. Defects of title
The Supplier shall only be liable for infringements of third party rights by its performance insofar as the performance is used in accordance with the contract and in particular in the contractually agreed environment, otherwise in the intended environment of use, without any changes.
The Provider shall only be liable for infringements of third party rights within the European Union and the European Economic Area and at the place of contractual use of the service. Clause 4.1, sentence 1 shall apply accordingly.
If a third party asserts against the customer that a service of the provider infringes his rights, the Customer shall notify the Provider without delay. The Provider and, if applicable, the Provider’s upstream suppliers are suppliers, if any, shall be entitled, but not obliged, to defend the asserted claims at their own at their own expense.
The customer is not entitled to acknowledge claims of third parties before he has given the supplier a reasonable opportunity to defend the rights of third parties in another way.
If the rights of third parties are infringed by a service of the Provider, the Provider shall, at his own choice and at his own expense
a) procure the right to use the service for the customer or
b) make the service non-infringing or
c) take back the service with reimbursement of the remuneration paid by the customer for it (minus an appropriate compensation for use) if the provider cannot achieve any other remedy with reasonable effort.
The interests of the customer shall be adequately taken into account.
The customer’s claims for defects of title shall become statute-barred in accordance with section 4.2. and claims for reimbursement of expenses of the customer, section 6 shall apply in addition, section 4.3 shall apply Section 4.3 shall apply accordingly.
6. General Liability of the Provider
The Provider shall always be liable to the Customer
a) for damages caused by him or his legal representatives or vicarious agents intentionally or through gross negligence,
b) according to the Product Liability Act and
c) for damages resulting from injury to life, limb or health caused by the provider, his legal representatives or vicarious agents are responsible for.
The Provider shall not be liable for slight negligence, except to the extent that it has breached a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract. or the breach of which jeopardises the attainment of the purpose of the contract and on the observance of which the customer may may rely on.
In the case of damage to property and financial loss, this liability is limited to the foreseeable damage typical of the contract. contractually typical and foreseeable damage. This also applies to lost profits and savings. Liability for other remote consequential damages is excluded.
For a single case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year, but not less than € 50,000. Clause 4.2 applies accordingly to the limitation period. The contracting parties may agree in writing on further liability upon conclusion of the contract, usually against separate remuneration. Priority shall be given to an individually agreed liability sum. Liability pursuant to section 6.1 remains unaffected by this paragraph.
In addition and with priority, the liability of the provider due to slight negligence from the respective contract and its performance for damages and reimbursement of expenses, irrespective of the legal ground limited to the percentage of the remuneration agreed in this contract at the time of conclusion of the agreed upon conclusion of the contract. Liability pursuant to section 6.1 b) shall remain unaffected by this paragraph.
The Supplier shall only be liable for damages under a guarantee if this was expressly assumed in the guarantee. expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations in accordance with clause 6.2.
In the event of a necessary restoration of data or components (e.g. hardware, software), the provider shall 6.4 If data or components (e.g. hardware, software) need to be restored, the Provider shall only be liable for the expenditure required for the restoration in the event of proper data backup and failure precautions by the Customer. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a data backup and failure precaution appropriate to the nature of the data and components prior to the incident. data and components prior to the incident. This does not apply if this is agreed as a service of the provider.
For claims for reimbursement of expenses and other liability claims of the customer against the provider, the following shall apply Clauses 6.1 to 6.4 apply accordingly. Clauses 3.3 and 3.4 remain unaffected.
7. Data Protection
The customer shall conclude agreements with the provider for the handling of personal data as required by data protection law.
The customer shall observe the import and export regulations applicable to the deliveries or services, in particular those of the USA. for the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or the customer shall bear any customs duties, fees and other charges incurred. The customer shall comply with legal or official procedures in connection with cross-border deliveries or services on his own responsibility, unless on his own responsibility, unless otherwise expressly agreed.
German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
The Provider provides its services on the basis of its General Terms and Conditions of Business (GTC). The customer’s general terms and conditions do not apply, even if the provider has not expressly objected to them. has not expressly objected to them.
Acceptance of the services by the customer shall be deemed to be acceptance of the provider’s GTC with waiver of the customer’s GTC.
Other terms and conditions are only binding if the provider has acknowledged them in writing; the provider’s GTC then apply in addition. the GTC of the Provider shall then apply.
Amendments and supplements to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form shall not suffice.
The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law shall be the registered office of the Provider. The Provider may also sue the Customer at the at the customer’s registered office.
Disclaimer: This English translation of Terms and Conditions is for information purpose. The English translation is not legally binding. Only the original version in German is legally binding
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