- Validity of the contract conditions
1.1 For all deliveries, services and offers in business dealings, these General Terms and Conditions of Contract (GTC) apply exclusively, unless otherwise agreed. If the GTC do not contain any regulations, the legal regulations apply. Other contractual conditions shall not become part of the contract, even if Softblade GmbH does not expressly object to them. Otherwise, the general regulations apply.
1.2 Even if no reference is made to this again when concluding similar contracts, the GTCs of Softblade GmbH shall apply exclusively in the version available at www.softblade.de at the time the customer’s declaration is submitted, unless the contractual partners agree otherwise in writing.
- Conclusion of contract
2.1 Offers from Softblade GmbH are subject to change and non-binding, unless the offer is designated in writing as binding. A legal binding is only established through a contract signed by both parties or written order confirmation, and also when Softblade GmbH begins to provide services in accordance with the contract. Softblade GmbH can demand written confirmation of verbal contractual declarations of the customer.
2.2 The orderer shall be bound for four weeks by declarations on the conclusion of contracts (contract offers).
- Delivery and scope of services
3.1 In case of delivery of software, a download option will be provided. The quality of the licence software is exclusively based on the licence conditions and the licence certificates of the respective manufacturers, which can be viewed and printed out on the respective manufacturer’s homepage. Documents are provided in electronic form – usually in English – or offered for download.
The scope, type and quality of the goods and services shall be governed by the contract signed by both parties or the order confirmation from Softblade GmbH, otherwise by the offer from Softblade GmbH in conjunction with the respective license terms of the manufacturer. Product descriptions, illustrations, test programs, etc. are performance descriptions but not guarantees. The customer has no claim to the transfer of the source program.
- Grant of rights
4.1. The customer receives a right to use the software according to the respective license terms of the manufacturer, which can be viewed and printed out on the respective homepage of the manufacturer.
4.2. The software (program and electronic user manual) is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyrights to the software and other items that Softblade GmbH provides or makes available to the customer in the course of contract preparation and execution are the exclusive property of Softblade GmbH or, in the case of licensed software, the respective manufacturer. Softblade GmbH has the corresponding exploitation rights insofar as third parties are entitled to the rights.
4.3 The customer is only entitled to use the program to process his own data in his own company for his own purposes. All data processing devices (e.g. hard disks and central units) to which the programs are copied or taken over in whole or in part, temporarily or permanently, must be located on the premises of the customer and in his direct possession. Further contractual rules of use (e.g. limitation to a number of workstations or persons) must be technically set up and practically observed. Softblade GmbH hereby grants the customer the necessary authorization for this use as a simple right of use, including the right to correct errors.
4.4 All other acts of exploitation, in particular rental, lending and distribution in physical or non-physical form, use of the software by and for third parties (e.g. outsourcing, computer center activities, application service providing) are not permitted without the prior written consent of Softblade GmbH.
4.5 Any contractual items, documents, proposals, test programs, etc. that become accessible to the buyer before or after the conclusion of the contract are considered intellectual property and a business and trade secret of Softblade GmbH. They may not be used in any way whatsoever without written permission from Softblade GmbH and must be kept secret in accordance with section 11.
- Performance period, delays, place of performance
5.1 Information on delivery and performance dates is not binding unless Softblade GmbH has designated them as binding in writing. Softblade GmbH can provide partial services, as long as the delivered parts are usable for the customer.
5.2. Delivery and service deadlines shall be extended by the period in which the buyer is in default of payment arising from the contract and by the period in which Softblade GmbH is prevented from delivering or performing due to circumstances beyond its control and by a reasonable start-up time after the end of the reason for the impediment. These circumstances also include force majeure and industrial action. Deadlines are also considered extended by the period in which the customer does not provide a cooperation service in violation of the contract, e.g. does not provide information, does not create access, does not deliver a provision or does not make employees available.
5.3 If the contracting parties subsequently agree on other or additional services which affect agreed deadlines, these deadlines shall be extended by a reasonable period.
5.4 Reminders and time limits set by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks shall only be reasonable in the event of special urgency.
5.5. The registered office of Softblade GmbH is the place of performance for all services.
- Contract commitment and termination of contract
Any termination of the further exchange of services (e.g. in the event of withdrawal, reduction, termination for good cause, compensation for damages instead of performance) must always be threatened by stating the reason and setting a reasonable deadline for removal (usually at least two weeks) and can only be declared within two weeks of the deadline expiring. In the cases prescribed by law (cf. § 323 para. 2 BGB), the setting of a time limit may be waived. Whoever is wholly or predominantly responsible for the disruption cannot demand the reversal of the transaction.
- Remuneration, payment
7.1. The agreed remuneration is due without deduction after delivery of the software and receipt of the invoice by the customer and is payable within 14 days.
7.2. All prices are subject to the statutory value added tax at the current rate.
7.3. The buyer may only offset claims that are undisputed by Softblade GmbH or have been legally established. Except within the scope of § 354 a HGB (German Commercial Code), the customer may only assign claims from this contract to third parties with the prior written consent of Softblade GmbH. The customer is only entitled to a right of retention or the defense of non-performance of the contract within this contractual relationship.
8. Duties of the customer
8.1 The customer is obligated to have all delivery items of Softblade GmbH inspected by a competent employee immediately upon delivery or upon making them available in accordance with the regulations under commercial law (§ 377 HGB) and to notify Softblade GmbH of any defects in writing with an exact description of the defect. The customer shall thoroughly test each module for usability in the concrete situation before starting productive use. This also applies to programs that the customer receives under the warranty and a maintenance contract.
8.2 The customer shall take reasonable precautions in the event that the program does not work properly in whole or in part (e.g. by means of data backup, fault diagnosis, regular checking of the results, emergency planning). It is his responsibility to ensure the functionality of the program’s working environment.
9.1 Softblade GmbH shall pay damages or compensation for futile expenses, regardless of the legal grounds, only to the following extent:
a) The liability for intent and warranty is unlimited.
b) In the event of gross negligence, Softblade GmbH is liable to the extent of the typical damage that was foreseeable at the time the contract was concluded.
c) In the event of a non-grossly negligent breach of a duty that is so essential that the achievement of the purpose of the contract is endangered (cardinal obligation; in particular default), Softblade GmbH shall be liable in the amount of the typical damage that was foreseeable at the time the contract was concluded, but no more than 5 times the remuneration owed.
9.2 In case of injury to life, body and health and in case of claims arising from the Product Liability Act, the statutory provisions shall apply without limitation.
9.3 The customer has in particular the duty to secure data and to defend against malicious software according to the current state of the art.
- Beginning and end of the rights of the customer
10.1 Ownership of the hardware supplied and the rights under clause 4 shall not pass to the customer until the contractual remuneration has been paid in full. Prior to this, he shall only have a provisional right of use, which shall be revocable only under the law of obligations and in accordance with paragraph 2.
10.2 Softblade GmbH may revoke the rights under section 3 for good cause. An important reason exists in particular if Softblade GmbH cannot reasonably be expected to adhere to the contract, especially if the customer does not pay the remuneration or violates point 4 in a significant manner.
10.3 If the rights according to point 4 do not arise or if they expire, Softblade GmbH can demand the return of the surrendered objects from the buyer or the written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the objects and the written assurance that this has been done.
11.1 The contracting parties undertake to treat as confidential all objects (e.g. software, documents, information) which they receive or become aware of from the respective other contracting party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, also beyond the end of the contract, unless they are publicly known without breach of the obligation of secrecy. The contractual partners shall store and secure these objects in such a way that access by third parties is excluded.
11.2 The customer shall make the contractual objects accessible only to employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the need for confidentiality of the objects.
11.3 Softblade GmbH processes the customer’s data required for the transaction in accordance with the data protection regulations. Softblade GmbH may name the customer as a reference customer after successful completion of the services.
12.1 Changes and amendments to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, is sufficient to comply with the written form requirement.
12.2 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract is the registered office of Softblade GmbH for contracts with merchants.
12.3 Should a provision or part of a provision of this contract be or become invalid, the validity of the rest of this contract shall not be affected. In place of the invalid provision, an appropriate provision shall apply which comes as close as possible to what the parties would have wanted if they had considered the point when concluding this contract.