Terms of Delivery and Use (Perpetual)
Last updated: July 2021
1. Scope and Conclusion of Contract
1.4 All offers of the Supplier are subject to change and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Supplier may accept orders within (14) days after receipt (Order Confirmation).
2.1 "Services" means all services provided by the Provider to the Customer pursuant to a contract. The Services may in particular include (but are not limited to): (i) creation of Extensions, (ii) implementation or configuration services, (iii) training, or (iv) consultancy services.
2.2 "Extensions" are Customer-specific adaptations or extensions of the Standard Software.
2.3 “Deliverables” are the Software and Products.
2.4 “Products” are goods or things (e.g. hardware).
2.5 “Software" refers to both the Standard Software and all Extensions to it.
2.6 “Standard Software" is Software that covers an area of application defined by the Provider and is offered on the market as a pre-made product.
3. Subject Matter of the Contract
3.2 The performance description valid at the time of delivery of the Deliverables and available to the Customer prior to conclusion of a contract shall be conclusively authoritative for the quality of the Deliverables delivered by the Supplier. The Supplier does not owe any quality of the Deliverables beyond that performance description. In particular, the Customer cannot derive such an obligation from other representations of the Deliverables in public statements or in advertising made by the Supplier and/or the manufacturer of the Deliverables, or their employees or sales partners, unless the Supplier has expressly confirmed the additional quality or properties in writing.
3.3 The Supplier does neither give a separate guarantee for the quality of the Deliverables nor any other guarantee of quality. Insofar as employees of the Supplier give guarantees prior to conclusion of a contract, these shall only be effective if they are confirmed in writing by the management board of the Supplier.
3.4 The Supplier reserves the right of ownership and copyright to the documents enclosed with an offer, such as principle sketches, drawings and cost estimates. These documents may not be made accessible to third parties and are subject to confidentiality (Clause 15).
4. Provision of the Software
The Supplier shall effect delivery of the Software either by providing the Customer with a copy of the Software on a machine-readable data carrier and with a copy of the application documentation, or by making the Software and application documentation available to the Customer on the Internet. The Software shall be delivered in the version current at the time of delivery. Unless otherwise agreed, the Customer shall install the Software.
5. Licenses / Rights of Use
5.2 The Provider grants the Customer the non-exclusive and perpetual right to use the Software in object code as well as the other components of the Software and the Services for the intended contractual purpose in accordance with the following provisions. The Provider grants this right of use subject to payment of the purchase price. The Customer may use the Software exclusively for its own business purposes, unless otherwise agreed in writing.
5.3 The Customer shall not be entitled to any rights not expressly granted above.
5.4 Without the Provider's prior consent, the Customer is not entitled to use the Software beyond the agreed use or to have it used by third parties or to make the Software accessible to third parties. An exception to this is the transfer to the Customer's hosting provider, insofar as the hosting is carried out at the hosting provider for the Customer's business purposes. In particular, the Customer is not permitted to reproduce the software or to make it available for a limited period of time, in particular not to rent or lend it, without the prior consent of the Provider.
5.5 The Customer may only transfer the Software to a third party uniformly and with complete and final abandonment of its own use of the Software (Transfer). In this case, the Customer is obliged to inform the Provider in writing about the Transfer.
6. Copying of the Software
6.1 The Customer is entitled to copy the Software and the application documentation if and to the extent that this is necessary for the intended use. The Customer is entitled to make copies of the Software insofar as these are necessary to secure the future use of the Software and for purposes of data backups and archiving in accordance with the Customer's operational requirements. Backup copies on movable data carriers shall be marked as such and provided with the copyright notice of the original data carrier. The Customer is obliged to inform the Provider on request about the number, storage media and storage locations of all copies made.
6.2 The Customers right to copy the Software’s code under the conditions of Section 69d(1) German Act on Copyright and Related Rights (UrhG) remains unaffected. Other reproductions are not permitted.
7. Obligations of the Customer
7.1 Decompilation of the Software is only permissible if the prerequisites and conditions specified in Section 69e(1) UrhG are met. The information obtained in this way may not be used or passed on in violation of the provisions of Section 69e(2) UrhG.
7.2 Markings on the Software, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognizable.
7.3 The Customer is obliged to report defects in the Software or the Services to the Provider without delay. In doing so, the Customer shall take into account the Provider's instructions for problem analysis, insofar as this is reasonable, and forward to the Provider all information available to the Customer that may be necessary to remedy the defect.
7.4 The Customer shall take suitable precautions to protect the Software from unauthorized access by third parties.
7.5 The customer shall test the Software to ensure that it is free from defects and that is usable in the existing hardware and software configuration before using it. This shall also apply to Software which the Customer receives within the scope of warranty and maintenance. Section 377 of the German Commercial Code (HGB) shall apply.
7.6 The Customer shall take reasonable precautions for the event that the Software does not work properly in whole or in part (e.g. through daily data backups, fault diagnosis, or regular checking of data processing results).
8. Provision of Services
The Parties agree that the Provider shall provide the agreed upon Services to the Customer. Unless otherwise agreed, the remuneration for the provision of Services shall be based on actual expenditure at the Provider's rates applicable. The Customer shall provide reasonable support at its own expense to enable the Provider to provide the Services.
9.1 Insofar as a Deliverable or a Service (or any part thereof) constitutes a work capable of acceptance, the following shall apply:
9.2 The Customer is obliged to accept the work produced in accordance with the contract and to declare acceptance in writing (Acceptance). The Provider shall inform the Customer of the completion of the work and set the Customer a reasonable deadline for Acceptance. Acceptance cannot be refused due to insignificant defects.
9.3 The work shall be deemed to have been accepted if the Customer has not refused Acceptance of the work in writing (written form) within four (4) weeks after provision of the work, while stating at least one defect.
10. Prices and Payment
10.1 The prices apply to the scope of Services and Deliverables listed in the Order Confirmation. Additional or special performances shall be charged separately. The prices are quoted in EUR ex works plus transport, packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges. If the Customer fails to make payment when due, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
10.2 Invoices shall be paid within fourteen (14) days of receipt of the invoice without any deduction, unless otherwise agreed in writing. Any terms of payment going beyond this (e.g. payment milestones or payments on account) shall be regulated in the Order Confirmation.
11. Delivery and Delivery Times
11.1 Deliveries are ex works.
11.2 Deadlines and dates for deliveries and Services promised by the Supplier are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
11.3 If the Supplier has promised a fixed delivery period, it shall begin upon receipt of the Order Confirmation by the Customer, but not before the Customer has provided any documents, approvals and releases that may be required.
12. Retention of Title
Until payment in full, the delivered Products remain the property of the Supplier.
13.1 In case of material defects, the Provider shall first fulfil any warranty by means of cure. For this purpose, the Provider shall, at its own discretion, provide the Customer with a new, defect-free version of the Deliverable or remedy the defect. Remedy of the defect with regards to the Software shall also be deemed to have taken place if the Provider shows the Customer reasonable possibilities to avoid the effects of the defect.
13.2 In case of legal defects, the Supplier shall first fulfill any warranty by means of cure. For this purpose, the Supplier shall, at his own discretion, provide the Customer with a legally sound possibility of using the Deliverable.
13.3 Insofar as the Supplier fails to provide a cure, the Customer shall be entitled to set a reasonable deadline for the rectification of any remaining defects. In doing so, the Customer must expressly point out in writing that it reserves the right to withdraw from the respective contract and/or demand compensation in the event of renewed failure.
13.4 Insofar as the Provider cannot provide a cure within the deadline set by the Customer, the Customer may withdraw from the contract or reduce the remuneration if the defect is not insignificant.
13.5 If the Supplier provides services for troubleshooting or providing a cure without being obliged to do so, it may demand remuneration for this in accordance with its usual rates. This applies in particular if a defect cannot be proven or is not attributable to the Provider. In addition, the additional expenditure on the part of the Provider which arises due to the fact that the Customer has not properly fulfilled his obligations in accordance with Clause 7 shall be remunerated. The Customer is at liberty to raise the objection of contributory cause or contributory negligence on the part of the Supplier.
13.6 If third parties assert claims that prevent the Customer from exercising the rights of use granted to it under the contract, the Customer shall inform the Provider in writing without delay and hereby authorises the Provider to assert or conduct any defences and actions against third parties in and out of court on its own in this respect. If the Customer is sued, it shall coordinate with the Provider and shall take legal action, in particular acknowledgements and settlements, only with the Provider's consent.
13.7 The Customer can only derive rights from other breaches of duty by the Supplier if he has notified the Supplier of these in writing and has granted him a deadline to remedy the situation. This does not apply if a remedy is not possible due to the nature of the breach of duty.
13.8 The limitation period for all warranty claims shall be one year and begins with the (i) delivery of the Product, (ii) delivery or provision (as well as notification of the customer thereof) of the Software or, (iii) in the case of works subject to Acceptance, with the Acceptance. The same limitation period shall apply to other claims of whatever kind against the Supplier.
13.9 In the event of intent or gross negligence on the part of the Supplier, fraudulent concealment of the defect, personal injury or defects of title within the meaning of Section 438(1)(1a) BGB and for the purpose of guarantees (Section 444 BGB), the statutory limitation periods shall apply, as shall claims under the Product Liability Act.
13.10 The Customer shall not be entitled to any warranty claims if (i) it misuses the Software and/or the Services, or (ii) it modifies or alters the Software and/or the Services without the Provider's prior written consent, or (iii) problems or errors are due to the fact that the Software and/or the Services have been used with applications that are not compatible with the Software and/or the Services, unless the Customer proves that the defect is attributable to the Software and/or the Service.
13.11 If the Customer has a claim for damages or reimbursement of futile expenses, such claim shall be subject to the limitation of liability in the following Clause 14.
14. Limitation of Liability
14.1 Claims of the Customer for damages are excluded. This does not apply to claims for damages arising from injury to life, limb or health or from the breach of essential contractual obligations (Cardinal Obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Provider, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the respective contract.
14.2 In the event of a breach of essential contractual obligations, the Provider shall only be liable for the foreseeable damage typical for that contract if such damage was caused by simple negligence, unless the Customer's claims for damages are based on injury to life, body or health.
14.3 The restrictions in Clauses 14.1 and 14.2 also apply in favour of the legal representatives and vicarious agents of the Provider if claims are asserted directly against them.
14.4 The limitations of liability resulting from Clauses 14.1 and 14.2 do not apply insofar as the Supplier has fraudulently concealed the defect or has assumed a guarantee for the quality of the Software or the Services. The same applies insofar as the Supplier and the Customer have reached an agreement on the quality of the Software or the Services. The provisions of the German Product Liability Act shall remain unaffected.
15. Confidential Information
15.1 "Confidential Information" means all non-public information of the Provider relating to the Provider's business, including all information relating to the Provider's or its affiliates' intellectual property, know-how and technical expertise, business, operations, finances, pricing models, marketing, research and development and/or other plans and strategies, source code, algorithms, input and output formats. Confidential Information includes any information that is designated and/or marked as confidential upon disclosure and any information that the Customer knew or reasonably should have known was considered confidential or secret by the Provider in the circumstances.
15.2 The Customer shall maintain the confidentiality of the Provider's Confidential Information and shall treat such Confidential Information with at least the same standard of care as the Customer uses to protect its own confidential information, but not less than a reasonable standard of care. The Client shall only use the Provider's Confidential Information to exercise rights and perform obligations under a contract. Confidential Information of the Provider may only be disclosed to those affiliates, employees or contractors of the Client who need to have access to such information in order to perform a contract and only on condition that the Client imposes the same obligations on such affiliates, employees or contractors as the Client has undertaken in this Clause 15.
15.3 The Customer shall not be liable to the Provider for the transfer or disclosure of Confidential Information to the extent that (i) such information was known to the Customer prior to the date of formation of a contract without restriction on use or disclosure, (ii) such information became public through no fault of the Customer, (iii) such information was developed solely and independently by employees of the Customer who did not have access to the Confidential Information or (iv) the Client is compelled to do so by applicable law, by a court, government agency, or by a subpoena or discovery request in pending litigation, to the respective lawful extent, but only insofar as the Client promptly notifies the Provider in writing prior to the disclosure so that the Provider may seek a remedy to prevent or limit such disclosure.
15.4 All Confidential Information shall be and shall remain the sole property of the Provider and the Client shall have no right or legal interest (other than as expressly set out herein) in such Confidential Information. Upon request, the Client shall return to the Provider or delete all Confidential Information (including any copy thereof, unless retention of a copy is required by law) in the Client's possession.
16. Force Majeure
Neither Party shall be obliged to fulfil its contractual obligations in the event of and for the duration of Force Majeure. In particular, the following circumstances shall be considered as Force Majeure in this sense: (i) fire/explosion/flood for which a Party is not responsible, (ii) war, mutiny, blockade, embargo, epidemics, pandemics, or (iii) labour disputes lasting longer than six weeks and not culpably caused by the respective Party.
17. End of the Right of Use to the Software
In all cases of termination of its right of use (e.g. by withdrawal, redelivery), the Customer shall immediately surrender all deliveries of the Software and/or Services and delete all copies, unless it is legally obliged to retain them for a longer period of time.
July 2021, cbb software GmbH