General Terms and Conditions of Business - CODEWARE GmbH, Neue Weinsteige 16, 70180 Stuttgart

1.   Scope and conclusion of contract

1.1.   The following general terms and conditions and the respective applicable price list apply for all business relationships of CODEWARE GmbH, Neue Weinsteige 16, 70180 Stuttgart (hereinafter referred to as CODEWARE) with its Customers. Differing terms and conditions on the part of the Customer may not be applied unless the parties have explicitly agreed to them.

1.2.   A contract is concluded upon receipt of the written order confirmation from CODEWARE. The content of the contract is derived from the order confirmation. CODEWARE is bound by unlimited quotations for one month from the day the offer was sent.

1.3.   Separate respective contracts independent from one another shall be concluded for the development and/or adaption of software, the conducting of training courses, the updating or servicing of software or other services.

2.    Special provisions for products and services

2.1     Subject matter of the software agreement and terms of licence

2.1.1    The licenced software shall be deliveredin executable form (object code). For the fee specified in the order confirmation CODEWARE shall offer the Customer a copy of the licenced software and an accompanying handbook, which are intended exclusively for the Customer’s own use. CODEWARE grants the Customer the single (non-exclusive) right to use the licenced software permanently for the fee mentioned in the order confirmation.

2.1.2    Unless otherwise agreed, the installation of software supplied by CODEWARE is not an integral part of the contract.

2.1.3    The Customer is entitled to use the licenced software, i.e. to install, load and run it, simultaneously on a maximum of the number of workstations named in the order confirmation, reduced in proportion to the volume of the sale in cases of network and volume licences. The contractually agreed scope of use of the licenced CODEWARE software can be ascertained during the installation process or during the initial start of the installed software if the Customer enters a licence certificate, adds CODEWARE as a file or enters a registration code by means of which the software will load the complete licence certificate from the CODEWARE licence server (product activation).

2.1.4    The Customer may neither let nor lend out the software purchased. This includes transferring the licence to another legal entity in the office community. A sale of licenced software as used software requires the Customer as the initial purchaser to completely cease from using the software.

2.1.5    The Customer can produce a copy at the Customer’s own expense for backup or archive purposes, as a replacement or for error searches. If originals bear a copyright notice then the Customer must also apply these to the copies. The Customer may not reproduce records or documents.

2.1.6    The Customer is only entitled to decompile the software within the boundaries of Section 69e of the UrhG [German Copyright Act] if CODEWARE has not provided the data and/or information required to produce interoperability with other hard- and software within an appropriate time period after receiving a written request to do so.

2.1.7    Cost estimates, diagrams and other documents shall remain the property of CODEWARE and may not be made available to third parties.

2.1.8    CODEWARE has the right to examine the records on the scope of use of the Customer’s licenced software or to carry out an on-site inspection using an independent assessor. The costs of the inspection shall be borne by CODEWARE insofar as it does not uncover a significant failure to fulfil obligations.
Provided that CODEWARE gives prior written notice 45 days in advance, it may examine (or ‘audit’) use of the Customer’s licenced software qualitatively and quantitatively.
Insofar as the Customer does not produce evidence of substantially lower damages on the part of CODEWARE, the Customer shall be obligated to pay fees incurred for the Customer’s use of the programs not covered by licence rights within 30 days upon written request. Further claims for loss or damage shall remain unaffected.

2.1.9    CODEWARE prosecutes copyright violations according to both civil as well as criminal law.

2.2     Maintenance and upkeep

2.2.1    Maintenance includes the services named explicitly in the order conformation. At a minimum, it consists of the provision of a hotline, the automatic sending of medium-sized and large updates, remote diagnosis and servicing as well as an Internet service through which interim releases are provided.

2.2.2    The maintenance refers solely to software manufactured by CODEWARE.

2.2.3    In case of default on payment on the part of the Customer, CODEWARE can postpone the performance of further maintenance until payment has been received in full and can demand advance payment.

2.2.4    Should CODEWARE provide supplements to the Customer within the context of subsequent improvements or maintenance (e.g. patches, amendments to the user manual) or a new edition of the subject matter of the contract (e.g. update, upgrade) that replace the subject matter of the contract provided at an earlier date (‘old software’) then these shall be subject to the provisions of the general terms and conditions.

2.3     Duties to cooperate

2.3.1    The Customer shall cooperate by providing test data and test cases that are suitable for the planned data processing and a prompt acceptance of the program as well as certain work equipment. The Customer shall adhere to the necessary operating requirements for the period in which the functionality of the programs is procured.
The Customer shall be personally present during required test runs and the acceptance test or shall assign colleagues for this purpose who are authorised to give an opinion and to make decisions regarding faults, functional enhancements, functional reductions and changes to the program structure. The Customer’s cooperation shall be free of charge.

2.4     Acceptance

2.4.1     CODEWARE shall, insofar as required, give written notice of the provision of the software it has produced for acceptance two (2) weeks in advance.

During acceptance, the Customer shall assess the performance of CODEWARE in terms of the Customer’s contractual conformity. The performance shall be deemed to conform to the contract if it is free from material defects and defects of title in the sense of Section 633 of the BGB [German Civil Code].

Unless the parties agree to other arrangements in the specific individual case, the period for the acceptance of software shall be twenty (20) weeks from its provision for acceptance.

Insignificant deviations from the agreed performance characteristics and acceptance criteria do not authorise the Customer to decline the acceptance.

The acceptance is to be declared in writing.

CODEWARE can set an appropriate deadline for the submission of the declaration of acceptance, after whose expiry the software shall be deemed as accepted.

2.5     Further services

2.5.1     CODEWARE shall perform further services for the Customer, insofar as these are agreed in writing.

2.5.2     The Customer shall pay for further services and/or amendments and supplements (e.g. additional services) to the contract in accordance with the respective applicable price list of CODEWARE.

3.   Prices and payment conditions, delivery and shipping

3.1     Prices and payment terms

3.1.1     The respective applicable price list of CODEWARE shall apply. The prices on the price list shall apply plus costs incurred for postage, packing, insurance, travel and the applicable statutory sales tax.

3.1.2     Amounts due to CODEWARE are payable with immediate effect.

3.1.3     The Customer shall pay default interest at the rate of 8% above the base interest rate in accordance with Section 247 of the BGB [German Civil Code] in cases of default on payment.

3.1.4     Customers can only settle claims against CODEWARE that are undisputed, are disputed but ready for decision or are legally binding. Rights of retention are excluded, insofar as they are not based on the same contractual relationship. The Customer can exercise a right of retention only up to the amount of the Customer’s claim. 

3.2     Delivery and shipping

3.2.1     An agreed delivery period commences upon the Customer’s receipt of the order confirmation.

3.2.2     CODEWARE is only bound by the delivery deadline if the Customer fulfils the Customer’s duties of cooperation. In cases of non-fulfilment of the Customer’s duties of cooperation the delivery deadline shall be extended for the length of the disturbance unless the disturbance has no influence on the delay. The delivery deadline will have been adhered to if CODEWARE has despatched the goods.

3.2.3     Should a delivery deadline be exceeded for reasons for which CODEWARE is responsible, the Customer can set an appropriate extended delivery deadline and, if it expires fruitlessly, withdraw from the contract.

3.2.4     The risk shall pass to the Customer as soon as the goods from CODEWARE are transferred to the parcel/postal or forwarding agent.

4.   Reservation of title, third-party

4.1     CODEWARE shall retain the title to the delivered data carriers, the software and other goods until payment in full of all amounts due at the time of delivery arising from the contractual relationship between CODEWARE and the Customer. The Customer is obligated to keep the products belonging to CODEWARE safe with professional due diligence and to insure them sufficiently.

4.2     CODEWARE assumes that the software does not impair any third-party proprietary rights for the area of the Federal Republic of Germany. Should a third party assert a claim against the Customer for infringement of industrial property rights in regard to the software delivered, the Customer shall be obligated to inform CODEWARE of this immediately. The Customer shall give CODEWARE the opportunity to join in the proceedings. The Customer shall take legal action regarding the issue of the infringement of proprietary rights only in coordination with CODEWARE. The legal defence measures and settlement negotiations shall be decided upon by CODEWARE with due consideration of the Customer’s needs. Should the third party be entitled to justified claims on the grounds of industrial propriety rights arising from the contractual use of software supplied by CODEWARE, CODEWARE shall have the choice of whether to acquire a licence or to change the software free of charge under special consideration the Customer’s circumstances.

4.3     Insofar as CODEWARE develops software according to the designs and instructions of the Customer, the Customer shall release CODEWARE from all claims and costs arising from the infringement of third-party propriety rights attributable to designs and instructions of the Customer. The Customer shall make an appropriate advance payment of court costs at the request of CODEWARE.

5.   Claims for defects

5.1     Should the Customer not immediately inform CODEWARE of any defects occurring in writing, the defect claims shall expire for the defect for which no notice of defect was given.

5.2     Should a defect occur as part of work or services supplied by CODEWARE, CODEWARE shall either rectify this within an appropriate time at its discretion or perform the service that was the subject of the complaint again without defect (altogether subsequent performance).

5.3     Should the subsequent performance fail, particularly because the defect is not rectified in spite of attempts at rectification, the subsequent performance because it is delayed in an unreasonable manner or because it is refused without justification, the Customer can withdraw from the contract or reduce its scope at the Customer’s discretion.

5.4     The Customer has no entitlement to claims for defects due to errors caused by damage, incorrect connections or incorrect use by the Customer. Likewise, the Customer shall have no entitlement to claims for defects if the Customer personally or by means of third parties alters the work or services supplied, unless the Customer provides evidence that the alteration has not substantially hinder the analytical or processing expenditure of CODEWARE and that the defect was present at the time of the acceptance of the software.

5.5     Should the Customer withdraw from the contract, the Customer shall pay CODEWARE an appropriate user fee for the period up to the time of the withdrawal. The user fee shall be calculated based on a linear four-year depreciation.

5.6     Defect claims lapse within one year of delivery. This does not apply in cases of fraudulent intent or in cases where a guarantee has been provided by CODEWARE. 

6.   Limitation of liability

6.1     The Customer’s claims to compensation for damages or compensation of futile expenses shall be based upon this provision.

6.2     CODEWARE is fully liable for damages arising from injury to life, body or health resulting from a negligent breach of obligation by CODEWARE or an intentional or negligent breach of obligation by a legal representative or vicarious agent of CODEWARE.

6.3     In terms of the remaining liability claims, CODEWARE is fully liable solely in the case of the absence of the guaranteed condition as well as for the intent and gross negligence of its legal representatives and executive staff in addition. CODEWARE is liable for the culpability of other vicarious agents solely within the scope of the liability for minor negligence in accordance with point 6.4.

6.4     CODEWARE is liable for slight negligence only insofar as a duty has been breached whose performance is of particular importance for the achievement of the contractual aim (major obligation). In the event of a slightly negligent breach of a major obligation, the liability shall be limited to EUR 500,000.

6.5     The liability for data loss shall be limited to the typical restoration costs which would have resulted in the case of regular creation of backup copies according to the risk involved, unless there is a condition in accordance with point 6.2.

6.6     Liability under the Product Liability Act shall remain unaffected.

7.   Final provisions

7.1     Supplements or subsequent amendments to the contract must be made in writing. Amendments and supplements must as such be expressly indicated and signed by the Customer and CODEWARE. There are no verbal side agreements.

7.2     The Customer’s data shall be stored in compliance with statutory provisions.

7.3     The place of performance and place of jurisdiction is the registered office of CODEWARE.

7.4     Solely the laws of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.