General Terms Of Business
§ 1: General Notice To User
1) The contract conditions of CT-Softwareberatung GmbH are valid exclusively. Other conditions do not become contents of contract even if CT-Softwareberatung GmbH does not contradict explicitly.
2) The latest version of the general terms of business is also valid during contract conclusion for future businesses.
§ 2: Delivery
1) Delivery of software occurs by transfer of the machine executable program to the orderer either by forwarding the storage medium or by remote data transmission and by delivering the documentation .
2) The offer is binding on CT-Softwareberatung GmbH for one month, the same refers to the principal.
3) Obligatory delivery dates must be agreed upon in writing. This presupposes the clarification of technical questions as well as the self-supply. A delay in delivery that CT-Softwareberatung GmbH is responsible for allows the orderer to resign in accordance with the legal determination of the contract after CT-Softwareberatung GmbH was given an appropriate period of time with refusal threat and this period of time expired without success. The CT-Softwareberatung GmbH is not liable for troubles through strike, lockout, loss of employees without fault, official intervention and similar circumstances. The orderer can only claim for compensation to an amount of the foreseeable damage in case of non-fulfillment if the delay was based on intention or coarse negligence; as for other cases the compensation liability is limited to 50% of the actual damage.
4) The liability limit according to (3) is not valid provided that a financial short sale was agreed upon; the same applies if the orderer can assert because of the delay CT-Softwareberatung GmbH has to represent that there is no more interest in contract performance on his side.
5) If CT-Softwareberatung GmbH has to wait for the order’s cooperation and information or is otherwise hindered in contract fulfillment (cf., § 2 digit 3), delivery and service periods of time are regarded as extended at the duration of the hindrance and an adequate initial period after the end of the hindrance. CT-Softwareberatung GmbH will inform the orderer of the hindrance.
6) All reminders and period of time settlements need the writing for effectiveness.
7) The declaration about the shift of delivery dates needs the writing. In the case of a delay of acceptance CT-Softwareberatungs GmbH has in addition to the payment claim the right to determine either a new delivery date or to withdraw from the contract.
§ 3: Selection of products and services
The orderer knows about the essential function features of the software. He bears the risk whether the software satisfies his wishes and needs. As to doubt questions he has to see for advise before contract conclusion by CT-Softwareberatung GmbH employees or by expert third parties. Requirements of the orderer need the writing.
§ 4: Subject of delivery
1) CT-Softwareberatung GmbH delivers one copy of the software (storage medium with program, documentation) in accordance with the product description and the offer information.
2) The programs have to correspond to the descriptions of the documentation; CT-Softwareberatung GmbH is not responsible for further qualities of the programs.
3) All instructions in the installation guide have to be carried out.
4) The technical applications and program conditions correspond to the product description.
5) The assertion of qualities needs the explicit and written confirmation of CT-Softwareberatung GmbH. The representation in the contract enclosures, test programs, documentation and so forth are descriptions and no quality assertions.
§ 5: Cooperation of the orderer
1) The orderer provides the work environment for the software (e.g. hardware and operating system) in accordance to the software and hardware requirements of the respective product. He considers the requirements in the documentation.
2) The orderer supports CT-Softwareberatung GmbH during the execution of the order comprehensively and free of charge by making e.g. telecommunication, employees, hardware and software available and by participating in specifications, tests and so forth. He allows CT-Softwareberatungs GmbH access to hardware and software including remote access for data transmission unless essential concerns do object.
3) The orderer takes appropriate precautions for the case that the software does not work properly either completely or in part, namely by backup procedures, data security, fault diagnosis, regular inspection of the results and so forth.
4) The orderer tests every program thoroughly for freedom of deficiency and usability in the concrete situation before he begins with the functional use of the program.
§ 6: Prices and terms of payment
1) The prices for software forwarding (delivery) include transportation and package. The price given during contract conclusion is the valid one. CT-Softwareberatung GmbH reserves, however, for itself the right of price rises after the completion of the contract in accordance to increased costs demanded by third party suppliers. In this case CT-Softwareberatungs GmbH will verify the rises to the orderer on demand. Turnover tax is added to all prices.
2) CT-Softwareberatung GmbH bills have to be paid immediately without any deductions (if no ohter written contract is made). Should the orderer default in his payments he must pay the interest for default (4% above the respective minimum lending rate of the German Federal Reserve). In case CT-Softwareberatung GmbH is able to prove a higher damage caused by delay, it is authorized to assert this. The orderer is, however, justified to prove to CT-Softwareberatung GmbH that the delay does not cause any or only minor damage to CT-Softwareberatung GmbH.
3) If the orderer does not take the sold product CT-Softwareberatung GmbH can either insist on the purchase of the software or demand 25% of the agreed upon remuneration as compensation. In this case the orderer has to prove that no damage or only minor damage has been caused.
4) The orderer can only charge with demands undisputed or legally valid. He cannot resign his demands to third parties. He can only claim withholding rights as long as his counter-claim is based on the same contractual relationship.
§ 7: Reservation of title
1) CT-Softwareberatungs GmbH reserves for itself the property until the complete settlement of its contract demands.
2) If third parties make demands on the reservation product, in particular in the case of seizure, the orderer has to point out to the property rights respectively to the creditor rights of CT-Softwareberatung GmbH. It is his duty to inform CT-Softwareberatung GmbH immediately. The orderer bears costs and damages.
3) Contract adverse behavior of the orderer, in particular in the case of default, entitles CT-Softwareberatung GmbH to take back the reservation product at the expense of the orderer. Taking back the delivered product does not correspond to redhibition unless CT-Softwareberatung GmbH had explained that explicitly in writing. The seizure of the purchase product generally means that CT-Softwareberatung GmbH avoids the sale.
§ 8: Attribute and variables inspection
The orderer will inform CT-Softwareberatung GmbH immediately, at least within 2 months after delivery or service, in writing that the delivery and service occurred correctly, completely and without faults. The declaration may only be refused if essential or unrepairable faults occurred. If the orderer misses to give this declaration on schedule or if he makes the payment without reservation or begins with the functional use of software, CT-Softwareberatung GmbH will regard this as a reprimand free receipt at the date of the delivery and service.
The risks are passed onto the orderer the moment the contract product is taken over by the carrier, his representative or other persons to be named by CT-Softwareberatung GmbH, at the latest, however, with the immediate delivery of the contract product to the orderer or his representative.
Insignificant defects which do not damage the operativeness of the supplied subject do not entitle the customer to refuse receipt.
§ 9: Investigation and reproof duty
1) The orderer’s warranties presuppose that he properly followed his investigation and reproof duties in accordance with §§ 377, 378 HGB. Obvious defects are to be reprimanded within 14 days after the receipt of the product.
2) The orderer declares reproofs in writing with a precise description of the problem. Late, inadequate or unfounded reproofs free CT-Softwareberatungs GmbH of service duties.
§ 10: Defects and repair at a later stage
1) CT-Softwareberatung GmbH grants warranties according to the rules of the purchase right as far as nothing else has been agreed upon. Claims to substitute defect caused consequential losses are excluded.
2) CT-Softwareberatung GmbH can achieve warranty in the first place by repair at a later stage. Repair at a later stage occurs by correction, delivery of a program update or by CT-Softwareberatung GmbH showing possibilities to avoid the effects of the error. Therefore, a total correction is not always possible by repair at a later stage. The orderer supports CT-Softwareberatung GmbH in accordance to § 5. He has to take over a program update unless this leads to inappropriate adaptation and conversion problems.
3) The orderer can only demand the rescission of the contract or the reduction of the remuneration in the case of the purchase, if the (multiple) repair at a later stage by CT-Softwareberatung GmbH failed.
4) In the case of rent and leasing contracts the right of termination without notice replaces the right for rescission of the contract. If the orderer changes from a renting or leasing contract to a purchase he has the same warranty as if he had purchased his copy of the software right at the beginning.
5) The warranty period is 6 months from the delivery of the product/service.
§ 11: Liability
1) Claims of the orderer other than those mentioned in § 10 are excluded, as far as nothing else results. CT-Softwareberatung GmbH is not liable for damages that did not originate in the supplied subject; in particular CT-Softwareberatung GmbH is not liable for profit losses or other property damages to the orderer.
2) The liability liberation in accordance to § 11 (1) is not valid, provided the damage was caused by intention, coarse negligence, absence of a declared quality, injury of contract essential duties, service delay, impossibility or if claims exist according to §§ 1, 4 of the product liability law.
3) As far as the liability of CT-Softwareberatung GmbH is excluded or limited, it is also valid for the personal liability of its employees, associates, representatives and fulfillment assistant.
§12: Exporting software
Domestic and/or foreign laws can regulate, prohibit, or subject the export of software to specific countries. The ordering party undertakes, prior to the exportation of the software, to obtain the appropriate permission from CT-Softwareberatungs GmbH and to ensure that the necessary further prerequisites are fulfilled.
§ 13: Applicable right, venue, place of performance
1) The right of the Federal Republic of Germany is valid. The Vienna UN-agreement on international merchandise (UNCITRAL) is excluded.
2) The venue for all quarrels between the contracting parties as well as the place of performance for delivery and payment is the place of business of CT-Softwareberatung GmbH.
3) If one or several definitions of these general terms of business should be or will be void or this contract text contains an arrangement gap the contracting parties will replace or complement the respective void definitions by appropriate arrangements. The validity of remaining determinations remains unchanged.