EULA / GLT
GENERAL TERMS OF SERVICE OF konzeptwerk GmbH
I. GENERAL PROVISIONS
All contracts and business relations between konzeptwerk GmbH and the client are exclusively based on the following General Terms and Conditions (GTCs). Deviating and/or supplementary terms and conditions of the client will only become part of the contract if konzeptwerk GmbH has agreed to the inclusion of these General Terms and Conditions in writing. Conflicting terms and conditions of the client will not become part of the contract, even without express objection. Verbal collateral agreements, supplements or contract amendments require the written confirmation of konzeptwerk GmbH to become effective. This also applies to contract components and ancillary agreements that deviate from these GTCs.
II. SUBJECT MATTER AND TIME OF PERFORMANCE
Subject of performance
The subject of the service ordered from konzeptwerk GmbH – in particular orders for the creation of software services or for the procurement of software services – will be defined between the parties in an individual agreement. A specification provided by the client is only binding for konzeptwerk GmbH if konzeptwerk GmbH has confirmed this in writing.
All services offered by konzeptwerk GmbH are subject to change and non-binding. A contract is only concluded between konzeptwerk GmbH and the customer when the order has been confirmed in writing by konzeptwerk GmbH. Otherwise, the contract with the customer is also concluded when konzeptwerk GmbH begins with the delivery of the software, service or work on the order.
Time of performance
Performance periods, scheduled dates or deadlines are only binding for Konzeptwerk GmbH if konzepzwerk GmbH has agreed to these binding periods or deadlines in writing. The obligation of konzeptwerk GmbH to fulfill certain deadlines only begins when the preliminary services and preparatory work to be provided by the customer, which are necessary for the proper execution of the service by konzeptwerk GmbH, have been performed.
If the customer is in default with a payment he has to make to konzeptwerk GmbH, konzeptwerk GmbH is entitled to stop further work without further reminder from this point on without being in default itself. Further rights of konzeptwerk GmbH are not affected by this.
III. PAYMENTS
Agreed prices only represent a lump sum or fixed price agreement if they are expressly designated and agreed as such.
All prices of konzeptwerk GmbH are exclusive of the applicable statutory value-added tax.
All invoices issued by konzeptwerk GmbH within the scope of a contract with the customer are due for immediate payment strictly net.
If the client defaults on his payment obligations, konzeptwerk GmbH is entitled to charge interest in the amount of 10 percentage points above the respective prime rate.
In case of default of payment or other behaviour contrary to the contract on the part of the client, konzeptwerk GmbH is entitled, after the unsuccessful expiration of an appropriate grace period, to terminate possibly granted rights of use without observing a deadline and to demand the return of the provided software without otherwise withdrawing from the contract.
IV. COPYRIGHT AND GRANTING OF RIGHTS OF USE
konzeptwerk GmbH grants the client the rights of use that must be transferred in order to fulfill the purpose of the contract. Unless otherwise agreed, konzeptwerk GmbH grants the client a simple, non-exclusive right of use.
konzeptwerk GmbH has the exclusive copyright to all work results provided by konzeptwerk GmbH within the scope of service provision.
The customer of konzeptwerk GmbH is not entitled to make the provided work results available to third parties. If the customer wishes to do so nevertheless, he must obtain the prior written consent of konzeptwerk GmbH.
The software to be delivered to the customer is delivered without the source code. The source code is generally not part of the scope of delivery, unless otherwise agreed in writing between the parties. Extensions, maintenance and support, modifications of the software and installation of the same are not part of the scope of services of konzeptwerk GmbH, unless otherwise agreed in writing.
If konzeptwerk GmbH delivers prefabricated software of a third party to the customer, the scope of the transfer of rights is determined by the license terms of the respective manufacturer.
In the absence of an explicit written agreement, the customer of konzeptwerk GmbH is not entitled to make changes or copies of the provided software, unless otherwise stated in the agreed license terms or in the license terms of the manufacturer.
V. WARRANTY
If the service provided by konzeptwerk GmbH is defective or if the delivered goods are defective, konzeptwerk GmbH is entitled to repair or replace the defective parts or the service provided. The warranty of konzeptwerk GmbH only refers to the products delivered or services provided by konzeptwerk GmbH. konzeptwerk GmbH does not assume any warranty for software delivered by third party manufacturers. Minor defects do not entitle the client to withdraw from the contract.
In the case of rectification, konzeptwerk GmbH is entitled to access the client’s computer via remote data transmission equipment in order to carry out defect analyses and corrections. Costs incurred for the purpose of subsequent performance are to be reimbursed to konzeptwerk GmbH if these costs have arisen because the object of performance has been transported to a place other than the original place of delivery.
The warranty of konzeptwerk GmbH does not refer to the proper functioning of an entire system, unless otherwise agreed upon.
The limitation period for warranty claims is one year.
VI. LIABILITY
The liability of konzeptwerk GmbH is excluded for negligent breaches of duty, provided that no essential contractual obligation has been breached by konzeptwerk GmbH. Furthermore, the liability of konzeptwerk GmbH for negligent breaches of duty is excluded insofar as this does not involve damage to life, body or health, guarantees for the quality of the object of purchase or claims under the Product Liability Act. This also applies to the vicarious agents employed by konzeptwerk GmbH.
The customer of konzeptwerk GmbH is obligated to create the usual backup copies in EDP in order to keep damages caused by data loss as low as possible. In the event of data loss and associated consequential damages, konzeptwerk GmbH is only liable for the costs of any data transfer from the backup copies.
Further claims of the customer, especially for loss of profit or business interruption damages are excluded.
As far as konzeptwerk GmbH is liable due to legal regulations, the limitation of liability does not apply. The limitation of the warranty to a period of 1 year also does not apply if such a limitation is not permitted by law.
VII. RESERVATION OF OWNERSHIP
The deliveries and services provided by konzeptwerk GmbH remain the property of konzeptwerk GmbH until full payment has been made by the customer. If the manufacturer or the supplier already has a reservation of title to the delivery item, konzeptwerk GmbH acquires an expectation of transfer of title in place of ownership.
VIII. DOCUMENTATION
The customer of konzeptwerk GmbH will receive, if available, online help in the system or a corresponding user manual for the standard software according to the manufacturer’s specifications as program documentation and work aid. For the other software, including customer-specific programs, the customer will receive, if ordered by the customer, an installation manual and, at the discretion of konzeptwerk GmbH, an online help or program description.
IX. DEFAULT OF ACCEPTANCE
If the customer does not accept the subject matter of the contract from konzeptwerk GmbH on the agreed date, konzeptwerk GmbH is entitled to set a reasonable grace period. After expiration of this period, konzeptwerk GmbH is entitled to withdraw from the contract and/or to claim damages. In this case (claim for damages) konzeptwerk GmbH is entitled to claim 20% of the agreed gross price plus the remuneration for already performed work and consumed material as compensation without proof of the occurrence of a damage.
The customer of konzeptwerk GmbH reserves the right to prove that konzeptwerk GmbH has not incurred any damage or only a lesser damage. Furthermore, konzeptwerk GmbH reserves the right to claim a higher actual damage.
X. OBLIGATION TO GIVE NOTICE OF DEFECTS
The customer shall inspect the services provided by konzeptwerk GmbH immediately after delivery, insofar as this is feasible in the ordinary course of business.
If this inspection reveals a defect, the customer is obliged to notify konzeptwerk GmbH of this defect without delay. Notification is considered immediate if it is made within two working days after the defect has been detected. If the customer fails to comply with this obligation to give notice of defects, the goods shall be deemed to have been approved.
XI. DATA PROTECTION, CONFIDENTIALITY
The data necessary for business transactions, complaints and service provision are stored by konzeptwerk GmbH. All personal data will be treated confidentially by konzeptwerk GmbH and will not be passed on to third parties for the purpose of advertising or market research. By placing an order, the customer agrees that the data necessary for the fulfilment of the contract will be stored by konzeptwerk GmbH.
As far as the customer provides konzeptwerk GmbH with trustworthy data, for which he considers a special interest worthy of protection, konzeptwerk GmbH is to be informed of this prior to the transfer of this data.
XII. JURISDICTION
For all disputes arising from the contractual relationship with a customer, the local or regional court in Düsseldorf has exclusive jurisdiction. However, konzeptwerk GmbH is entitled to take legal action at the client’s place of business. The place of performance for all claims arising from the contract concluded with the client is Düsseldorf.
XIII. OTHER PROVISIONS
The legal relationship between konzeptwerk GmbH and the client is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by a provision that corresponds to the meaning and purpose of the invalid provision in economic terms.