General Terms and Conditions of FP Digital Business Solutions
1 General
1.1 These General Terms and Conditions (GTC) apply to all our contracts for the creation or modification of hardware and software, the purchase and delivery of hardware and software products and contracts for related services, e.g. the installation of such products at the customer's premises, including the provision of advice to the customer, unless individual deviations are agreed.
1.2 Orders, contracts and delivery schedules as well as their amendment and supplementation must be in writing. Verbal agreements require our written confirmation to be effective.
A contract is only concluded when the customer has accepted a written offer in writing or when we accept or execute an order from the customer.
1.3 For the creation of software, these GTC are supplemented by the "Special Contractual Terms for the Creation of Software".
2 Delivery Times
2.1 All dates and deadlines stated for our deliveries and services are non-binding unless expressly agreed otherwise. Failure to cooperate and requests for changes by the customer shall result in a reasonable postponement of the dates or extension of the deadlines.
2.2 Insofar as a cause for which the Supplier is not responsible (including power failure, failure of data transmission connections, strike or lawful lockout) impairs compliance with the deadline, the Supplier shall be released from the obligation to deliver and perform for the duration of its existence. Deadlines and dates shall be extended to a reasonable extent as a result. This shall also apply to deliveries or services on the part of our suppliers for which we are not responsible and which are not timely or proper.
2.3 If the expenditure increases due to delays in the customer's area of responsibility (including acts of cooperation by the customer), the customer shall be responsible for this. The supplier can demand compensation for his additional expenditure.
2.4 We are entitled to partial deliveries and services.
3 Payment
3.1 The price specified in the offer shall apply. Unless otherwise stated, all prices are net prices in euros plus the respective statutory value added tax.
3.2 Insofar as services are invoiced on a time and material basis, or if expressly agreed, the Provider shall invoice on a monthly basis. The Provider's employees shall record the daily working hours in a list.
3.3 All claims shall become due upon invoicing and shall be payable within 10 calendar days without any deduction. All payments shall be made free of bank charges to an account designated in the invoice. Bills of exchange and cheques will not be accepted.
3.4 We retain title to the goods delivered by us until all claims to which we are entitled against the customer have been satisfied.
4 Defect
4.1 The customer shall notify the supplier of any defects in writing and in as much detail as possible. We shall provide warranty - at our discretion - by rectification or replacement delivery.
4.2 The warranty right shall expire in the event of interventions or other manipulations by the customer or third parties commissioned by the customer, unless the customer proves that the defect claimed by him was not caused by this.
4.3 The customer is not authorized to remedy any installation defects himself - including by third parties commissioned by him.
5 Liability
5.1 The Provider shall be liable to the Customer for damage caused by it or its employees wilfully or through gross negligence. 5.2 In the event of slight negligence, the Provider shall only be liable if the Provider has breached a material contractual obligation (cardinal obligation).5.3 In the event of data loss, the Provider shall only be liable for the expenditure required for the reconstruction of the data in the event of proper data backup by the Customer.
5.4 The Provider accepts no liability for indirect or consequential damages, including damages for loss of profit, business interruption, loss of business information or any other financial loss arising from the use or inability to use the software product.
5.5 For a single case of damage, liability is limited to the order value.
6 Non-disclosure
6.1 Both contracting parties are obliged to maintain confidentiality about business and trade secrets as well as about all information designated as confidential that they obtain in the course of executing this contract. Disclosure to persons not directly involved persons not directly involved in the execution of the order may only be disclosed with the written consent of the contractual partner.6.2 Confidential information in this sense is all documents and other information that is not recognisably intended for the public.
6.3 Any further regulations shall be agreed between the contracting parties in a separate confidentiality agreement.
7 Other
7.1 German law shall apply. Insofar as the UN Convention on Contracts for the International Sale of Goods, which has been incorporated into German law, would be applicable to foreign customers, this shall be excluded.7.2 Amendments or additions to the terms and conditions of this contract must be made in writing.
7.3 If the customer is a merchant, a legal entity under public law or a special fund under public law, the court in Laatzen shall have jurisdiction over all disputes arising from the contractual relationship.
7.4 Should individual provisions of the above contract be invalid, the remaining provisions shall remain unaffected. The contracting parties are obliged to reach a new agreement that comes as close as possible to the economic purpose of the invalid provision.
Special contractual conditions for the creation of software
1 Subject matter of the contract
1.1 The following terms and conditions shall apply to the development and creation of programs for data processing systems on the basis of the specifications contained in the respective order.
1.2 In addition, further documents, such as a specification sheet, shall only be used to determine the content of the contract if express reference is made to them in our offer or acceptance.
1.3 The supplier shall create the software including documentation according to the state of the art. Standard modules which the supplier introduces into the software shall be delivered as an object program without system-technical documentation.
1.4 Insofar as the customer's requirements do not yet result from the task definition according to the contract, the supplier shall detail them with the customer's support, draw up a specification of them and submit them to the customer. The specification shall be binding for the further work. The specification is refined in the course of its implementation in software in consultation with the client. If the supplier recognises that the customer's specification is faulty, ambiguous or not executable, he shall inform the customer of this in writing (letter, fax, e-mail). The client shall then decide without delay on the further course of action.
1.5 The customer shall ensure that competent personnel are available for the use of the software at the latest at the time of installation.
1.6 At the customer's request or by special agreement, the supplier shall install the software or instruct him or his employees in the use of the components installed by us. Unless expressly agreed otherwise, instruction and training are not included in the price for the installation, but shall be remunerated separately by the customer. The customer shall confirm the installation in writing.
2 Contact person
2.1 The Provider shall appoint a project manager, the Customer a responsible contact person. These can make decisions or bring them about immediately.
2.2 The project manager shall record decisions in writing.
2.3 The contact person shall be available to the provider for necessary information. The provider is obliged to involve the contact person insofar as the execution of the order requires this.
3 Service change
3.1 If the customer wishes to change his requirements, the provider is obliged to agree to this, insofar as it is reasonable for the provider, in particular with regard to the effort and scheduling.
3.2 Insofar as the realisation of a change request affects the contractual conditions, the Provider may demand an appropriate adjustment of the contractual conditions, in particular the increase of the remuneration or the postponement of the deadlines.
3.3 At the Provider's request, the Client shall detail its change request to the extent that the task is detailed in the contract. The Provider shall undertake this task at the request of the Customer against remuneration according to time and effort.
3.4 Agreements on changes must be set out in writing.
3.5 The Provider shall immediately assert the request for adjustment of the contract. The customer shall immediately object if he does not agree with the requested contract adjustments.
4 Place of work, duties of the client to cooperate
4.1 The work shall be carried out at the customer's premises as required.
4.2 The Customer shall be obliged to support the Provider - as far as necessary - and to create in its sphere of operation all conditions necessary for the proper execution of the order. At the request of the Provider, the Customer shall provide sufficient workplaces and work equipment free of charge.
5 Acceptance
5.1 The customer undertakes to check the contractual conformity of the software including the documentation with regard to the essential functions. The customer shall carry out this functional test within 20 working days of delivery. The content and procedure of the functional test are set out in the specification of services.
5.2 If the customer discovers any defects, he shall notify the supplier immediately in writing (letter, fax, e-mail).
5.3 Even without formal acceptance, the software shall be deemed to have been accepted as soon as its usability is not significantly restricted due to reported defects after expiry of the test period.
5.4 Acceptance may not be refused due to insignificant defects.
5.5 Insofar as partial deliveries are agreed, these shall each be accepted separately. The interaction of all parts is the subject of the acceptance test for the last partial delivery.
6 Rights of use
6.1 The software is protected by the German Copyright Act (UrhG).
6.2 The customer is entitled to use the software including documentation for the contractually stipulated purpose as desired.
6.3 All other rights of use shall remain with the Provider. The supplier may use the software for other purposes, insofar as paragraph 7 of the GTC does not require secrecy.
6.4 Insofar as we provide the customer with software, the customer shall receive the non-exclusive right to use the software on only one machine (central processing unit) at a time upon payment of the remuneration in accordance with para. 3 of our GTC, unless multiple use or network use have been agreed separately. The customer is prohibited from transferring the system to network operation or from making any other parallel use.
6.5 The customer may not resell software or parts thereof supplied by us, transfer it to third parties or grant sub-licenses.
6.6 The customer may reproduce software supplied by us to the extent that the respective reproduction is necessary for the contractual use of the programme. Necessary copies are the installation of the programme from the original data carrier on the hardware used. In addition, the customer may make a backup copy which may not be passed on.
6.7 The customer may only make changes to the software with our prior written consent.
7 Warranty
7.1 The customer shall only have warranty claims if reported defects are reproducible or can be shown by machine-generated output. The customer shall report defects in writing in a reproducible form, stating the information useful for identifying the defect.
7.2 The Customer shall support the Provider - to the extent necessary - in the elimination of defects, in particular by sending a data carrier with the programme in question and providing working materials at the Provider's request.
7.3 The Provider shall remedy defects within a reasonable period of time.
7.5 The warranty shall expire for such programmes which the Customer modifies or otherwise interferes with, unless the Customer proves in connection with the notification of defects that the interference is not the cause of the defect.
7.6 The Provider may demand reimbursement of its expenses insofar as it has become active on the basis of a defect report without a defect being present or without the Customer having created the prerequisites in accordance with para.
7.8 The Provider has pointed this out, the Customer has nevertheless requested a defect search, but the Provider does not find a defect.