GENERAL TERMS AND CONDITIONS OF CADIDA SOFTWARE AG
FOR THE PROVISION AND CUSTOMIZATION OF SOFTWARE
1. APPLICABILITY
1.1 The following terms and consitions apply to the provision of standard software and its customization for the purposes of the client by Cadida Software GmbH (hereinafter referred to as "Cadida". For the purposes of these General Terms and Conditions, customization of software means not only the customization of standard software, but also the creation of individual software for the client. Insofar as the term "software" is used in the following, this includes both the customized standard software and the individually created software.
1.2 These General Terms and Conditions shall also apply to follow-up orders, irrespective of whether explicit reference is again made to these terms and conditions in the individual follow-up transaction.
1.3 Deviating terms and conditions of the customers shall not become a part of the contract unless they are expressly accepted by Cadida in writing. The provision of services by Cadida does not constitute acceptance of the client's terms and conditions.
2. CONCLUSION OF THE CONTRACT
Unless expressly agreed otherwise, Cadida's offers are non-binding. The contract shall only come into effect when Cadida confirms the order placed by the customer or, if no order confirmation is issued, when Cadida starts customizing or creating the software.
3. SUBJECT MATTER OF THE CONTRACT, SPECIFICATION OF DUTIES, SOURCE CODE
3.1 Depending on the agreement between the parties, the subject matter of the contract is the provision of standard software and the adaptation for the client's purposes and/or the creation of customized software for the client. Cadida's services also include documentation of the software (product documentation with installation instructions in electronic form), installation and initial training, unless otherwise agreed in individual cases.
3.2 Cadida customizes standard software or create individual software in accordance with the requirements set out in the specifications.
3.3 The specifications are compiled by Cadida. The preparation of the specifications is subject to remuneration.
3.4 At the commencement of the contract, the client provides Cadida with the specifications, which are the starting point for the creation of the functional specifications. The specification sheet shows the customer's existing hardware and software environment, the user's requirements and an initial description of the functional requirements for the software.
3.5 Cadida is not obliged to provide the source code.
4. OTHER SERVICE OBLIGATIONS
4.1 Cadida provides the customer with the software in ready-to-install form.
4.2 Unless otherwise agreed, Cadida shall install the software in the customer's software and hardware environment as specified in the order confirmation.
4.3 Cadida shall provide the employees designated by the customer to use the software with initial instruction in the use of the software for a fee. The initial training shall take place as a collective training session, not as an individual training session, at the Client's place of business.
4.4 Cadida does not provide any source code unless expressly agreed in the offer.
5. DEADLINES AND DATES FOR SERVICES
5.1 Deadlines and dates for the performance of services shall be mutually agreed between Cadida and the customer and set out in writing. Only deadlines and dates that can be determined by date can be binding.
5.2 Cadida shall inform the customer if circumstances and events occur that are likely to require additional time. Circumstances and events that lie outside Cadida's area of responsibility, such as
• the customer does not fulfill a contractual obligation to cooperate.
• unforeseeable and extraordinary events such as strikes, lockouts, natural disasters, catastrophes and other force majeure events shall extend agreed deadlines and dates by a reasonable period, but at least by the duration of the hindrance.
6. CHANGES TO THE SUBJECT MATTER OF THE CONTRACT
6.1 Cadida does not have to take into account requests for changes and extensions with regard to the scope of functions, program structure, screen design or other features if they represent a deviation from the original content of the contract, in particular if they do not correspond to the specifications or other service descriptions.
6.2 Cadida shall be free to take the desired changes into account for an additional fee. This shall be based on the additional time required and the daily rates agreed between the client and Cadida.
7. PARTICIPATION OF THE CUSTOMER
7.1 The customer is obliged to provide Cadida with appropriate support in the performance of the agreed services, in particular in the preparation of the specifications, software customization or software development and installation. The customer's duty to cooperate includes, in particular, the provision of the information required for the agreed services in terms of data processing and project organization (e.g. specifications in accordance with section 3.4).
7.2 During acceptance tests and any necessary test runs, the customer shall assign competent employees who are authorized to judge and decide on defects, functional changes and changes to the program structure. The customer shall make the intended data processing system available to a suitable extent and within the required period of time.
7.3 The customer shall make the the test data required for acceptance tests and any necessary test runs available to Cadida in due time.
7.4 If Cadida is responsible for installing the software, the customer shall provide the necessary software and hardware. The software and hardware environement required at the customer's premises in accordance with the order confirmation must be guaranteed by the customer.
7.5 The customer appoints a competent contact person for all questions relating to the execution of the contract.
8. RIGHTS OF USE
8.1 The customer receives the non-exclusive, unlimited and non-transferable right to use the software including documentation. This includes the rights specified below in sections 8.2 to 8.6.
8.2 The customer may reproduce the software insofar as the respective reproduction is necessary for its intended use. Necessary copies include installation on the hardware used and loading into the working memory for the purpose of running the software. Unless otherwise agreed in individual cases, only a single backup copy may be made and stored, which must be marked as a backup copy of the software provided.
8.3 The customer is entitled to use the software within a network or other multi-station computer system so that it can be operated simultaneously or successively from more than one workstation, so-called multi-user application. The type and number of users authorized to access the software shall be determined in accordance with the specifications in the order confirmation. If, accordingly, the number of users authorized to access the software is limited in relation to the total number of users connected to the computer system, the customer must take technical and organizational measures to ensure that this is the case and provide Cadida with evidence of this. For each further increase in the number of authorized users, the customer shall pay a separate license fee based on the type and number of additional authorized users.
8.4 The retranslation of the software provided for use and delivered in object code into other code forms (decompilation) or other types of reverse engineering of the various production stages of the software are not permitted.
8.5 Program modifications shall only be permitted insofar as they are necessary for the use of the software to the extent specified in the contract, in particular to rectify errors, and insofar as Cadida does not wish to make the desired program modifications for a reasonable fee. This does not apply to additions and changes to software interfaces, insofar as these are intended to be supplemented and/or changed by the customer (scripting). Scripting in the above-mentioned form is permitted.
8.6 The sale or gifting of the software as well as its transfer to third parties for a limited period of time - insofar as this does not take place by way of renting for purchase purposes or leasing - is only permitted insofar as the third party agrees to the continued validity of these terms of use; in this case, the customer must hand over to the third party all existing copies of the program or destroy the copies not handed over. As a result of the transfer of the software, the client's right to use the program shall expire or shall not apply for the duration of the temporary transfer. The customer is obliged to inform Cadida of the name and address of the new user. Renting for commercial purposes and transfer by way of leasing are not permitted.
8.7 The customer shall not receive any rights to the software other than those specified in sections 8.1 to 8.6.
8.8 The customer shall not remove copyrigh notices and other proprietary notices located on data carries, in the program or in the doumentation.
8.9 In all cases of termination of its right of use (e.g. by withdrawing from the contract), the customer shall immediately return the software provided to it and any other contractual items provided and delete all copies, unless it is legally obliged to retain them for a longer period. The customer assures Cadida of this in writing.
9. REMUNERATION AND TERMS OF PAYMENT
9.1 The customer shall pay Cadida the agreed license fee for the provision of the software. Remuneration for other services (e.g. specifications, software customization) shall be based on the actual time spent by Cadida at the daily rates agreed between the customer and Cadida. The amount of the remuneration to be paid in detail and any agreed advance or partial payments are set out in the order confirmation. All prices are plus the costs incurred for postage, packaging, insurance, travel costs and expenses and the applicable statutory VAT.
9.2 Invoices are due for payment 14 days after receipt of the invoice.
9.3 The customer shall only be entitled to rights of set-off if his counterclaims are undisputed or have been legally established.
10. ACCEPTANCE
10.1 Acceptance of the software takes place after its completion, usually after customization and installation of the software.
10.2 Unless Cadida and the customer have agreed otherwise in individual cases, Cadida shall demonstrate to the customer by means of appropriate acceptance tests that the functions described in the specifications or otherwise agreed are present in the software.
10.3 If the software complies in all material respects with the functions described in the specifications or otherwise agreed, Cadida and the client shall immediately draw up a written acceptance report and sign it. Once the acceptance report has been signed by the customer and Cadida, the software shall be deemed to have been accepted. Any minor defects identified must be recorded in the report and will be rectified by Cadida within a reasonable period of time. Acceptance may not be refused by the client on the grounds of minor defects.
10.4 If the customer is obliged to accept the software and nevertheless fails to sign the acceptance report, Cadida may set a reasonable deadline for the customer to sign the report, after the unsuccessful expiry of which the software shall be deemed to have been accepted.
11. SUPPLEMENTARY PERFORMANCE
11.1 In the event of a defect in the contractually agreed services, in particular the software including the associated documentation, the customer shall report this immediately, stating the information required to identify the defect.
11.2 If the customer reports a defect in accordance with clause 11.1, Cadida shall rectify the defect. Subsequent performance shall take the form of rectification of the defect or replacement, at Cadida's discretion.
11.3 If Cadida is unsuccessful with the subsequent performance within a reasonable period, the customer is entitled to a reduction in price or to withdraw from the contract. Waiting for deadlines is only dispensable in the cases regulated by law, in particular if subsequent performance is definitively and seriously rejected, has failed or is unreasonable for the customer.
11.4 The customer's right to compensation in lieu of performance shall be determined in accordance with the limitations of liability pursuant to Section 12 of these General Terms and Conditions. However, the right to withdraw from the contract and to claim damages in lieu of the entire performance shall only exist in the event of significant defects.
11.5 The subsequent performance claim shall expire within one (1) year from the date of acceptance of the service. In the event of fraudulent intent and the assumption of a guarantee, the statutory warranty provisions shall remain unaffected.
11.6 The parties clarify: If scripting by the customer leads to a deviation between the actual and the target functionality of the software, this deviation shall not be classified as a defect in the software. The Customer carries out scripting on its own responsibility and its own risk.
12. LIABILITY LIMITATION
12.1 Cadida is liable for damages in accordance with the statutory privisions for injury to life, limb or health and for damages under the Product Liability Act.
12.2 Cadida is only liable for other damages in accordance with the following conditions:
(a) Cadida is liable in accordance with the statutory provisions
- for damage caused by fraudulent conduct or the absence of a quality guaranteed by Cadida;
- for damage caused by intent or gross negliegence on the part of Cadida, one of its legal representatives or vicarious agents.
(b) For damages arising from a slightly negligent breach of material contractual obligations, except in the cases referred to in 12.1 and 12.2 a), first indent, Cadida's liability for damages that could typically be expected to occur in contracts of this type. An essential contractual obligation in the aforementioned sense is an obligation that is essential for achieving the purpose of the contract or the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely.
12.3 Any contributory negligence on the part of the customer shall be offset against the amount of any claim for damages. In particular, Cadida shall only be liable for the recovery of data if the customer has taken all necessary and appropriate data backup precautions and has ensured that the data can be reconstructed from data material held in machine-readable form with reasonable effort.
12.4 In the case of so-called scanning programs of the software (programs that electronically capture paper documents and convert them into machine-readable data material), Section 12.3, Sentence 2, shall apply accordingly with the additional proviso that the customer has ensured that the data can be reconstructed from physically stored data material with reasonable effort until it is converted into a machine-readable form.
12.5 All other liability is excluded.
13. SECRECY AND DATA PROTECTION
13.1 The customer and Cadida undertake to treat as strictly confidential any information obtained about the other party in the course of the initiation and performance of the contract. The term "information" is to be interpreted broadly and includes all electronic and printed documents, including the terms and conditions of the contract, as well as information disclosed during an oral presentation or discussion. This does not include information that is publicly known or that the customer or Cadida has demonstrably received from third parties without being obliged to maintain confidentially. Confidential information received shall only be used to the extent necessary to fulfill the purpose of the contract. Use for other purposes is not permitted unless the customer or Cadida gives its prior consent in writing.
13.2 Any confidential information received shall be returned by Cadida or the customer after completion of its service and all remaining copies shall be deleted.
13.3 Cadida complies with the statutory provisions on data protection.
14. ASSIGNMENT
The assignment or transfer of rights and/or obligations arising from a contract by the customer requires the consent of Cadida.
15. SUPPORT
15.1 Installation and support services for Cadida Software GmbH software products require a separate written order. Our support services are provided within the framework of service contracts. Support is provided in German. This is provided exclusively by remote maintenance, i.e. via telephone and internet. The customer must provide the means to access their computer system via remote control.
15.2 Setting up suitable workstations at the customer's premises is solely the customer's task and responsibility. It is neither owed nor checked by us.
15.3 Support for third-party software is not provided by us, but by the support helpdesks of the respective manufacturers, unless an additional support contract has been concluded.
15.4 The customer must ensure that competent staff are present during test run and during installation. If we deem it necessary, the customer must stop other work with the computer system during our work.
15.5 The response time for support tickets is limited during the vacation periods in August and the last two weeks of December. Training and conulting are not considered support and require a separate written order.
16. SUBCONTRACTORS
Cadida is entitled to use subcontractors in whole or in part for the performance of services.
17. FINAL PROVISIONS
16.1 All agreements that contain an amendment, supplement or specification of these General Terms and Conditions must be recorded in writing. This also applies to the amendment of this written form clause.
16.2 Should individual clauses of these General Terms and Conditions be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The same shall apply in the event that these General Terms and Conditions contain a loophole. The parties are obliged to replace the invalid provisions with valid provisions that come as close as possible to the meaning of the invalid provisions.
16.3 The place of jurisdiction for all disputes arising from a contract is Freiburg im Breisgau.
16.4 The law of Federal Republic of Germany applies.
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