GENERAL TERMS AND CONDITIONS
1. APPLICATION OF THE GENERAL TERMS AND CONDITIONS OF WEBIPROG
These general terms and conditions of business and delivery shall apply to all contracts concluded between the company WebiProg GmbH and the buyer as well as to all other agreements made within the scope of the business relationship. The customer’s general terms and conditions of business shall expressly not form part of the contract, even if they are not expressly contradicted by WebiProg GmbH. In the event that the customer does not wish to accept the following general terms and conditions of business and delivery, it shall notify WebiProg GmbH of this in writing in advance.
2. TERMS OF PAYMENT AND PRICES
All invoices from WebiProg GmbH are payable within ten days of the invoice date, unless otherwise contractually defined. The date of receipt of payment by WebiProg GmbH shall be decisive. In the event of default, WebiProg GmbH shall be entitled to withhold further deliveries and services. In the event of default in payment on the part of the customer, WebiProg GmbH shall be entitled to charge interest at a rate of 5% above the prime rate applicable at the time.
All prices are exclusive of the respective statutory value added tax.
All offers are subject to change. All delivery dates specified by WebiProg GmbH shall be non-binding delivery dates unless a delivery date is expressly agreed in writing to be binding. If the buyer requests changes or additions to the order after the order has been placed or if other circumstances arise that make it impossible for WebiProg GmbH to meet the delivery date, although WebiProg GmbH is not responsible for these circumstances, the delivery date shall be postponed by a reasonable period of time. If WebiProg GmbH is prevented from fulfilling the contract in a timely manner, e.g. due to a lack of cooperation on the part of the customer, procurement, manufacturing or delivery disruptions on its part or on the part of its suppliers, the general principles of law shall apply with the proviso that the customer may set a grace period of six weeks after the expiration of one month. If non-compliance with a binding delivery date is demonstrably due to mobilization, war, riot, strike or lockout or other circumstances for which WebiProg GmbH is not responsible according to general legal principles, the delivery period shall be extended accordingly. The customer may withdraw from the contract if he grants WebiProg GmbH a reasonable grace period after the extended deadline has expired. The withdrawal must be made in writing if WebiProg GmbH does not fulfill within the grace period. If WebiProg GmbH is unable to fulfill the contract in whole or in part for the aforementioned reasons, it shall be released from its obligation to deliver.
The scope of services is defined in the offer or in a separate specification. It includes, but is not limited to, which problem solution the customer can expect, which functions the software has to fulfill and whether and under which conditions any legacy data of the customer can be taken over by the contractual system.
All of the above items are minimum requirements. The specifications/offer must be sufficiently specific so that acceptance can take place on the basis of the tasks defined therein.
The customer is obligated to work towards ensuring that the specifications meet the above criteria. He shall correct and supplement it if the need becomes apparent.
5. PROJECT PHASES AND SOFTWARE DEVELOPMENT PROCESS
The software development takes place in the following phases:
- Programming phase in terms of scope,
- installable provision of the Software, all adaptations, and in particular adaptations to any standard software cooperating with the Software. This phase ends with the notification of the operability of the software,
- Test phase and functional test.
In the programming phase WebiProg GmbH implements the functions and specifications laid down in the functional specification.
After the end of the programming phase, WebiProg GmbH shall install the software on hardware accessible to the customer in accordance with the manner laid down in the specifications and shall integrate the object code in a functional manner. Immediately after the installation, WebiProg GmbH shall notify the customer of the functional capability of the software.
Subsequently, a functional test by the customer shall commence in accordance with the functions, requirements and modalities laid down in the specifications. WebiProg GmbH shall give the customer the opportunity to test and try out the software that is the subject of the contract for a reasonable period of time under practical operating conditions.
The functional test shall be deemed to have been successfully performed if the software essentially meets the contractually specified requirements. If the customer becomes aware of negative deviations from the contractual requirements or errors in the software during the functional test or in practical operation, it shall notify WebiProg GmbH of this in writing without delay, providing as detailed a description as possible and naming any error messages that may have occurred.
After the successful completion of the functional test, the customer must immediately declare acceptance of the software to WebiProg GmbH in writing. Insignificant deviations from the contractual specifications and insignificant defects shall not entitle the customer to refuse acceptance.
Deviations from the target state and defects shall be recorded by WebiProg GmbH and the customer in a joint protocol. Unless the defects are completely insignificant, they shall be remedied by WebiProg GmbH within the scope of its warranty obligations. The same shall apply to defects that are not insignificant and of which the parties only become aware after acceptance.
If the customer does not declare acceptance immediately, WebiProg GmbH may set him a deadline of 2 weeks to make this declaration. The declaration of acceptance shall be deemed to have been made if the customer does not declare acceptance to WebiProg GmbH within two weeks of receipt of the request letter or if the customer explains the reasons for refusing acceptance to WebiProg GmbH in writing, describing the error symptoms and naming any error messages that have occurred.
WebiProg GmbH shall be at liberty to obtain a certificate of completion in accordance with §641 aBGB. If the certificate of completion is issued, the customer shall reimburse WebiProg GmbH for the costs necessary for its preparation if the customer has either refused acceptance without sufficient grounds or has not declared acceptance within the period set in accordance with clause 3, sentence 1.
Application documentation shall only be supplied upon express request after prior consultation.
The source code as well as the creation documentation shall be handed over to the customer by WebiProg GmbH only after full payment of the remuneration.
The Contractor warrants that the Software does not have any defects which nullify or reduce the value or the suitability for the usual use or the use assumed under the contract. An insignificant reduction in value or suitability shall not be taken into consideration. The Customer is aware that it is not possible to create a program that is completely free of errors according to the state of the art. The Contractor shall not be liable for defects caused by incorrect use by the Customer or due to incorrect information / instructions by the Customer.
The warranty period is 6 months and begins with acceptance.
Until the end of the warranty period, the Contractor shall make any necessary adjustments free of charge, insofar as the changes have been made in the context of fault elimination.
Defects that have not already been listed in the written declaration of acceptance must be reported to the Contractor by the Client in writing immediately after discovery and the individual defect must be described in concrete terms.
The Contractor shall remedy defects without undue delay, at the latest within two weeks after receipt of the written notice of defects by the Contractor. In order to fulfill this rectification of defects, the Contractor may choose between the subsequent delivery of a defect-free program or the rectification of the program already delivered.
The Customer shall lose all warranty rights and claims to which it may be entitled on account of a defect if it modifies programs itself or has them modified by third parties without the Contractor’s consent, unless the Customer proves that a defect was not caused by the program modification made by itself or by the third party.
If the Contractor fails to remedy material defects within two weeks of receipt of the written notice of defect, the Customer may set the Contractor a reasonable grace period with the declaration that it will refuse to remedy the defect after the expiry of this period. After expiry of the deadline, the Customer may withdraw from the contract, demand a corresponding reduction or damages instead of performance.
The same shall apply if two attempts to remedy the defect have failed and further waiting is unreasonable for the Customer.
If the Customer has made a claim against the Contractor for warranty and it turns out that either there is no defect or the claimed defect does not oblige the Contractor to provide warranty, the Customer shall, if it is responsible for the Contractor’s claim due to gross negligence or intent, reimburse all expenses incurred by the Contractor.
Immediately after installation, defect removal work, maintenance work or other interventions on the EDP system, the Customer shall carry out a check to determine whether the data backup is still functional and record the result in writing.
7. THE CUSTOMER’S DUTY TO COOPERATE
The success or failure of the project also depends decisively on whether and to what extent the customer cooperates in the realization of the project within the scope of his capacity. The customer is therefore obliged in particularto provide WebiProg GmbH with the specifications for the duration of the execution of the contract and for the purposes associated therewith, as well as
WebiProg GmbH and its personnel employed under this contract access to the hardware used by the customer and in this regard to grant the access rights necessary for the performance of this contract, to work with suitable personnel within the framework of the execution of the contract itself, to notify WebiProg GmbH of any defects or malfunctions occurring in writing and without delay using the error form provided to him by WebiProg GmbH, to properly coordinate dates and meetings necessary for the execution of the contract with WebiProg GmbH and, in cases of doubt, to consult with WebiProg GmbH in due time, to follow project-related instructions of WebiProg GmbH or its personnel in case of doubt,to ensure that its data is adequately backed up,to instruct the personnel to be named by him in good time and sufficiently or to arrange appropriate training dates with WebiProg GmbH, to ensure the proper and timely execution of the acceptance.
8. RIGHTS OF USE
WebiProg GmbH grants the customer a non-exclusive right of use to the aforementioned components that is limited in terms of time, space and geography. This includes the right of the customer to duplicate the aforementioned components for his own backup purposes, to store them on any data carriers, in particular also on CD-ROM or DVD data carriers or via the Internet or other online services. The customer is not permitted to duplicate the right of use and to use the purchased software for unfair competition with WebiProg GmbH. This applies to both the source code and the object code and all associated documentation and plans.
Any standard software to be provided is protected by copyright. With regard to this software, WebiProg GmbH shall grant the customer a simple non-exclusive right of use in each case. The respective software may be used simultaneously as often as corresponds to the number of contractually agreed workstations. The customer shall ensure by means of appropriate mechanisms or procedures that the number of users of the respective standard software does not exceed the number of workstations specified in §1 in conjunction with the specifications. The customer shall be entitled to make the required number of copies, in particular backup copies, of the standard software to be provided, which is necessary for the performance of this contract, but at least [one] backup copy.
WebiProg GmbH is entitled to make partial deliveries. Delivery will be made only after full payment of the invoice. The completed software remains the property of WebiProg GmbH until the invoices are paid in full.
9. PROPERTY RIGHTS OF THIRD PARTIES
WebiProg GmbH declares that the software created by it within the scope of this contract, as well as the associated runtime modules and language libraries, documentation and plans, are free of third-party rights, or that it is authorized to use the aforementioned components for the performance of this contract or to grant corresponding rights of use. In particular, it shall ensure that it may grant the Customer the rights of use provided for in Section 8 by means of corresponding agreements: with its employees or other persons commissioned by it and with the contractors and suppliers of its development tools and tools.
If the contractual use of the contractual software is impaired by the property rights of third parties, WebiProg GmbH may, at its discretion, either obtain authorization to use the software in accordance with the contract without restriction at its own expense or modify the software at its own expense in such a way that the rights of third parties are no longer infringed. The aforementioned measures may only impair the functionality of the software to an extent that is reasonable for the customer.
WebiProg GmbH shall indemnify the customer against all third-party claims asserted against the customer from the standpoint of infringement of third-party property rights with respect to the software that is the subject matter of the contract, including the associated documentation and plans. It shall assume sole liability vis-à-vis those who assert the infringement of property rights.
If intellectual property rights are asserted against one party to the contract by a third party with respect to the software that is the subject matter of the contract, this party to the contract must notify the other party to the contract of the assertion in writing without undue delay.
10. SECRECY OBLIGATIONS – DATA PROTECTION
WebiProg GmbH shall be prohibited from recording, passing on or otherwise exploiting in any way all contents of the specifications and other company and business secrets of the customer that have become known to it on the basis of the contract.
It shall ensure by means of suitable agreements and technical precautions that employees and vicarious agents employed by it are subject to the same duty of confidentiality.
11. LIMITATIONS OF LIABILITY
The Customer’s claims for damages or reimbursement of futile expenses shall be governed by this clause, irrespective of the legal nature of the claim.
The Contractor shall be liable without limitation for damages resulting from injury to life, body or health due to a negligent breach of duty by the Contractor or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Contractor.
In the case of other liability claims, the Contractor shall be liable without limitation only in the event of non-existence of the guaranteed quality and for intent and gross negligence also of its legal representatives and executive employees. For the fault of other vicarious agents, the Contractor shall only be liable to the extent of the liability for slight negligence according to paragraph 4 of this liability clause.
The Contractor shall only be liable for slight negligence if an obligation is violated, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). In the event of a breach of the cardinal obligation, the liability shall be limited to five times the transfer fee as well as to such damages as may typically be expected to occur within the scope of a software transfer.
Liability for data loss shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.
The above provisions also apply in favor of our employees.
12. EVIDENCE CLAUSE
Data stored in electronic registers or otherwise in electronic form at WebiProg GmbH. shall be considered admissible evidence for proving data transfers, contracts and executed payments between the parties.
13. PROPERTY RIGHTS
The buyer shall not be permitted to export the software purchased from WebiProg GmbH to countries outside the EC without the express permission of WebiProg GmbH. In addition, the buyer must observe all relevant export regulations, in particular those under the Foreign Trade and Payments Ordinance and, if applicable, regulations under UK law.
14 NOTICE OF TERMINATION.
The right to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist in particular in the following cases:
Delay of the client with the payment of the remuneration or a partial remuneration of more than one month.
Failure of the Contractor to provide the services despite a written request by the Client after setting a deadline of two weeks to no avail.
Insolvency of one of the contracting parties (application for insolvency proceedings or rejection of the same for lack of assets, deletion or liquidation of the contracting party applied for or entered in the Commercial Register).
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provisions shall be replaced by the provision that comes closest to the intended purpose.
Subsidiary agreements have not been made. Supplements to the contract shall only be effective if they are confirmed in writing.
The customer may assign its rights arising from a business relationship with WebiProg GmbH only with the written consent WebiProg GmbH. A set-off against the purchase price claim is possible for the customer only with recognized or legally established counterclaims. The place of jurisdiction is Yorkshire.