1. General
1.1. These general terms and conditions (hereinafter “GTC”) of DITAprime® GmbH apply to all contracts that a customer concludes with DITAprime® GmbH. The inclusion of the customer's own conditions is hereby contradicted, unless something else has been agreed in writing. The non-contradictory performance of services by DITAprime® GmbH does not mean recognition of the customer's terms and conditions.
1.2. Customers in the sense of these terms and conditions are exclusively entrepreneurs, therefore natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in their commercial or independent professional activity.
1.3. The following conditions apply to the provision of standard software (own and third-party software), the support of the customer in the maintenance of standard software (hereinafter "software maintenance") by DITAprime® GmbH and for the provision of services such as the adaptation of standard software for the purposes of customers through DITAprime® GmbH.
1.4. In the case of delivery of third-party software (software that was developed by a software supplier independent of DITAprime® GmbH), the special license and other provisions of the manufacturer apply beyond the conditions of DITAprime® GmbH. The customer expressly recognizes their validity.
1.5. All offers from DITAprime® GmbH are non-binding. We reserve the right to make technical changes when reasonable. Information on the website, presentations, data sheets, documentation and similar are for description purposes only and do not represent any assurance of properties. The assurance of a property expressly requires written confirmation by DITAprime® GmbH.
1.6. These terms and conditions also apply to subsequent orders from the customer, regardless of whether or not they are expressly referred to in the individual follow-up business.
2. Customer's Duty to Cooperate
2.1. The customer is obliged to support DITAprime® GmbH appropriately in performing the agreed services. With regard to software maintenance and any agreed provision of services, additional special cooperation obligations apply.
2.2. The customer is obliged to obtain all necessary rights to the hardware and software used by himself from third parties.
2.3. The parties will try to determine the customer's obligations to cooperate in advance of the conclusion of the contract. If this is not possible for the parties, DITAprime® GmbH will request the customer to perform the necessary cooperation obligations within a reasonable period of time. If the customer does not comply with his duty to cooperate in spite of a time schedule or a timely request by DITAprime® GmbH, DITAprime® GmbH is released from its obligations for the time of the customer's delay. All deadlines are automatically extended by the time the customer is late plus a reasonable restart time. Further rights of DITAprime® GmbH due to the customer's default remain unaffected. DITAprime® GmbH can demand further, appropriate cooperation services from the customer, should these be necessary for the provision of the services by DITAprime® GmbH.
3. Rights of Use, Warranty, Third Party Rights on Software
3.1. The customer is granted a non-exclusive and non-transferable right to use software (proprietary software and third-party software) for internal use. All other rights remain with DITAprime® GmbH or the respective software supplier. For third-party software, the transferred right of use is based on the license terms of the respective manufacturer.
3.2. DITAprime® GmbH is liable for the absence of defects in the software within the warranty periods granted by the respective software manufacturer. Third-party software is generally passed on separately on the basis of the conditions between the respective manufacturer and the customer (see also section 1.4). DITAprime® GmbH does not accept any liability for third-party software.
3.3. The following provisions also apply to proprietary software (software developed by DITAprime® GmbH):
3.3.1. The warranty period for proprietary software as well as customer-specific adaptations of software is one year.
3.3.2. The customer may reproduce the software insofar as the respective reproduction is necessary for its intended use. The necessary reproductions include installation on the hardware used and loading into the main memory for the purpose of executing the software. Unless otherwise agreed in individual cases, the customer may make and keep a single backup copy, which is to be marked as a backup copy of the software provided. The type and number of users authorized to access the software depend on the type and scope of the software used in accordance with the respective function and service description and the scope agreed with DITAprime® GmbH. If the number of authorized users is limited compared to the total number of users connected to the computer system, the customer must ensure the limitation through technical and organizational measures and make this credible to DITAprime® GmbH in a suitable manner.
3.3.3. Any use of the software beyond the agreed scope (overuse), in particular use of the software with more than the agreed number of authorized users, is an act contrary to the contract. The customer must inform DITAprime® GmbH immediately in writing of the overuse. If a check (section 3.3.4.) or in another way shows that the use of the contractual software by the customer goes beyond the contractual agreements, the customer has the right to enter into a contract with DITAprime® GmbH to increase the scope of use. DITAprime® GmbH reserves the right not to grant agreed discounts and the volume discounts regulated in the current price list in this case. The right of DITAprime® GmbH to claim damages remains unaffected.
3.3.4. DITAprime® GmbH is entitled to check the use of the contractual software. Among other things, DITAprime® GmbH may check the number of users. Checks take place regularly, initially in the form of self-assessment by the customer. The customer is obliged to explain in writing the method with which he has recorded the communicated number. In addition DITAprime® GmbH may exceptionally check the scope of use. If the software that is the subject of the contract already contains a method for measuring the license DITAprime® GmbH can use this. If necessary the customer has to set up remote access. Otherwise, the customer has to enable the use of a system or application-specific program for the duration of the license measurement and to participate in its execution in an appropriate manner. DITAprime® GmbH may exceptionally carry out on-site inspections if the inspection does not provide any meaningful results or if there are objective indications of a breach of contract by the customer. The customer is obliged to work together appropriately with DITAprime® GmbH when carrying out such checks; in particular, he must grant DITAprime® GmbH the necessary insight into his systems for remote and on-site checks. DITAprime® GmbH will announce on-site inspections with a reasonable period of notice. DITAprime® GmbH adequately takes into account the confidentiality interests of the customer and the protection of his business operations from impairment. The customer bears the costs of the inspection if the inspection reveals that the use is not in accordance with the contract. DITAprime® GmbH may transfer the right to review to third parties.
3.3.5. With except of § 69e UrhG the customer is not entitled to decompile the software. This excludes additions and changes to interfaces of the software insofar as these are intended to be added to and / or changed by the customer. Exceptions to this rule must be formulated in writing.
3.3.6. In all cases of termination of his usage authorization (e.g. by withdrawing from the contract) the customer ceases to use the software and immediately surrenders the software and, if applicable, other contractual items and deletes all copies, unless he is legally required to keep them for a longer period of time. He then confirms the fulfillment of this obligation in writing to DITAprime® GmbH.
3.3.7. DITAprime® GmbH guarantees that the software is free from third party rights and releases the customer from third party claims including the costs of legal defense according to RVG. The exemption presupposes that
3.3.7.1. the customer informs DITAprime® GmbH immediately in writing of a claim,
3.3.7.2. the customer does not undertake any legally relevant acts towards the third party, in particular does not make an out-of-court settlement, give an acknowledgment or undertake acts that are equivalent to such without the written consent of DITAprime® GmbH,
3.3.7.3. the customer supports DITAprime® GmbH in a legal defense against the third party as far as necessary, in particular by providing information and
3.3.7.4. the customer grants DITAprime® GmbH the opportunity to define and implement the strategy of legal defense, in particular through the selection of lawyers and the drafting of briefs. For this purpose the customer will make the necessary declarations and grant powers of attorney. DITAprime® GmbH will appropriately take into account the legitimate interests of the customer in legal defense.
3.3.8. In the event of conflicting third-party rights DITAprime® GmbH will make reasonable efforts at its own expense so that the customer can continue to use the software concerned. DITAprime® GmbH can
3.3.8.1. provide the customer with the necessary rights for further use or
3.3.8.2. modify the respective software in such a way that the rights of third parties are no longer affected without restricting its usability and without changing the performance obligations of DITAprime® GmbH.
4. Deadlines and dates for services
4.1. Deadlines and dates for the implementation of services by DITAprime® GmbH are only binding if they are expressly agreed in writing by the parties.
4.2. The deadlines and dates are automatically extended by the time of the handicap plus an appropriate restart time, if
4.2.1. the customer does not meet his duty to cooperate in a timely manner or
4.2.2. other obstacles occur for which DITAprime® GmbH is not responsible for.
4.3. DITAprime® GmbH will immediately inform the customer of the type of disability and the possible outcome that may arise from it, regardless of the type of disability.
5. Changes to the subject matter of the contract/change requests for services (e.g. adjustments to standard software)
5.1. Each party is entitled to request a change of the scope of services ("change request").
5.2. If the customer requests a change request DITAprime® GmbH will examine the change request with regard to the effects on the agreed scope of services and then make the customer an offer for the implementation of the change request for a separate fee. DITAprime® GmbH is not obliged to submit an offer in response to the customer's change request.
5.3. If DITAprime® GmbH would like to propose a change request to the customer DITAprime® GmbH will submit a corresponding offer to the customer.
5.4. A change request only becomes the subject of this contract if the customer expressly instructs it in writing. When the order is placed, the deadlines agreed between the parties and, if applicable, payment plans change according to the information in the change request.
6. Subcontractors
6.1. DITAprime® GmbH is entitled to use subcontractors in whole or in part for the execution of services.
6.2. On request DITAprime® GmbH will inform the customer about the subcontractors used.
7. Payment terms
7.1. Payments are generally due 14 days after invoicing, strictly net, unless other terms of payment have been agreed.
7.2. All prices are plus the applicable value added tax.
8. Warranty
8.1. For proprietary software from DITAprime® GmbH or customer-specific adaptations of standard software carried out by DITAprime® GmbH the following provisions apply in addition to Section 3.3.1:
8.2. No warranty claims exist if the software is used on non-approved operating systems or if the minimum hardware requirements are not met.
8.3. The warranty claim is also void in the event of improper use of the software.
8.4. In the event of a defect in the contractually agreed services the customer reports this immediately naming the information known to him that is useful for identifying the defect. The supplementary performance takes place at the discretion of DITAprime® GmbH in the form of the removal of the defect or a new deveopment.
8.5. If DITAprime® GmbH is unsuccessful with the supplementary performance more than twice within a reasonable period the customer is entitled to a reduction in price or to withdraw from the contract or to terminate the contract. However, the right to withdraw from the software license agreement or to terminate the software maintenance agreement only exists in the event of significant defects and if DITAprime® GmbH has not shown an appropriate alternative use ("workaround").
8.6. For the duration of the software maintenance contract the removal of defects in the software itself takes place within the framework of software maintenance. This does not apply to defects in any adaptation services provided by DITAprime® GmbH.
8.7. Warranty claims become statute-barred within 1 year starting with the provision of the software or the provision of bug fixes. For services that are subject to acceptance, the statute of limitations begins with the acceptance of the service. In the event of malice and assumption of a guarantee the statutory warranty provisions remain unaffected.
8.8. If adjustments, extensions or changes to the software carried out by the customer or a third party lead to a deviation between the actual and the target functionality of the software this deviation is not to be classified as a defect in the software and the warranty claim is void. The customer carries out these developments on his own responsibility and at his own risk.
9. Limitation of Liability
9.1. DITAprime® GmbH is only liable in the event of a breach of essential contractual obligations limited to the amount of foreseeable damage which would typically have to be expected in contracts of this type but at most to the amount of the agreed price for software provision or service. An essential contractual obligation in the aforementioned sense is to be understood as an obligation that is essential for the achievement of the purpose of the contract or the fulfillment which enables the proper execution of the contract and on which the customer can regularly rely. The foreseeable contract-typical damage is one that is typically to be expected in the normal course of damage.
9.2. Otherwise the liability of DITAprime® GmbH is excluded. In particular, liability for consequential damage and for the recovery of data is excluded.
9.3. Claims for damages generally become statute-barred 12 months after the software has been provided or services have been provided.
9.4. The personal liability of the legal representatives and employees of DITAprime® GmbH is excluded unless the damage was caused intentionally or through gross negligence.
9.5. DITAprime® GmbH is not liable in the event of force majeure. Force majeure are all circumstances and events that are outside the area of responsibility of DITAprime® GmbH, such as strikes, lockouts, natural events, disasters, official intervention, legal prohibitions or other events due to which DITAprime® GmbH is hindered in its services through no fault of its own.
9.6. Contributory negligence on the part of the customer is to be offset against the amount of any claim for damages.
10. Confidentiality and data protection
10.1. The customer and DITAprime® GmbH mutually undertake to treat the information received from the other contractual partner in the context of the initiation and implementation of the contract as strictly confidential. The term “information” is to be understood broadly and includes, in particular, all documents of electronic type and in print form including the terms of the contract as well as the information that became known during a presentation or verbal discussion. Information that is publicly known or that the customer or DITAprime® GmbH has verifiably received from third parties without breaching a confidentiality obligation is excluded from the confidentiality obligation. The confidential information received is only used insofar as it is necessary to fulfill the purpose of the contract. Use for other purposes is not permitted unless the other party has given its prior written consent.
10.2. Any confidential information received will be returned to DITAprime® GmbH or the customer after the end of their services and all remaining copies will be deleted unless the respective party is legally obliged to keep a copy of the information. In this case the destruction takes place immediately after the statutory retention period has expired.
11. Assignment
The assignment or transfer of rights and / or obligations from a contract by the customer requires the written consent of DITAprime® GmbH.
12. Retention of title
12.1. DITAprime® GmbH reserves title to the delivered goods against the customer until all claims from an ongoing business relationship have been settled in full.
12.2. The required declarations of intent for the acquisition of license and usage rights are subject to the condition precedent that the full purchase price is paid. If the customer does not pay the claims DITAprime® GmbH can revoke the license and usage rights to the software. If this occurs the customer is obliged to uninstall all copies of the software and stop using it. The customer must immediately confirm this in writing to DITAprime® GmbH. The revocation of the license and usage rights to the software does not constitute a withdrawal from the contract. DITAprime® GmbH reserves the right to claim damages for non-performance.
13. Final provisions
13.1. All agreements that contain a change, amendment or specification of this contract must be made in writing. This also applies to changes to this written form clause.
13.2. Should individual provisions of this contract be or become invalid or unenforceable in whole or in part this shall not affect the validity of the remaining provisions. The contracting parties will work together to find a regulation that comes as close as possible to the invalid provisions.
13.3. The place of jurisdiction for all disputes arising from this contract is Cologne (Köln).
13.4. The law of the Federal Republic of Germany is applicable.