a) The subject matter of these General Terms and Conditions is the regulation of the contractual conditions for all contracts for services and the provision of software concluded between AvenDATA and the customer. These Terms and Conditions do not apply to training courses conducted by AvenDATA.
b) Terms and conditions of the customer contrary to or deviating from these terms and conditions shall not be recognised by AvenDATA unless express written approval has been given.
c) Individual agreements remain unaffected by the above regulation. An actual acceptance of the service provided by AvenDATA by the customer despite an order with reference to the customer's general terms and conditions of purchase, which deviate from or conflict with these general terms and conditions, shall be deemed to be an acceptance under the conditions described in these general terms and conditions.
d) Employees and representatives of AvenDATA are not authorized to give oral assurances or make oral agreements that go beyond the content of these General Terms and Conditions.
a) AvenDATA's offers are made exclusively in writing. They are non-binding offers and therefore merely a request to submit offers with reference to these General Terms and Conditions.
b) Properties of the products which you can expect according to the public statements of AvenDATA or its agents, in particular in advertising or in the labelling of the goods, or on the basis of commercial usage, only belong to the agreed quality if they are reproduced in writing in an offer or an order confirmation. Guarantees shall only be binding for AvenDATA if and to the extent that they are designated as such in an offer or an order confirmation or if AvenDATA's obligations under the guarantee are set out in detail therein.
c) Orders may be placed by the customer in writing, by Internet, by telephone or by fax. After checking, AvenDATA will send the customer a written order confirmation for order values of 5000,- EURO or more. Otherwise, silence on the offer shall be deemed acceptance by AvenDATA if the customer's offer does not deviate from the request for an offer.
d) If an order confirmation is issued, deviations in the order confirmation from the order must be notified to AvenDATA immediately in writing. AvenDATA may change products at any time, as long as the changed products do not have lower functionality and performance.
a) Invoices are due within 14 days unless otherwise agreed. They are payable without cash discount and other deductions. Work services shall also be invoiced monthly according to the time spent, without the need for partial acceptance, unless otherwise agreed in writing between the customer and AvenDATA.
b) Cheques and bills of exchange shall not be considered as payment until they have been honoured. The acceptance of bills of exchange always requires a prior written agreement with AvenDATA. When bills of exchange are accepted, the bank discount and collection charges will be charged. They are to be paid immediately in cash.
c) The customer shall only have the right to offset if his counterclaims have been legally established or acknowledged by us.
d) The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
Indicated delivery times are only approximate. There is no entitlement to punctual delivery if this has not been expressly agreed in writing. AvenDATA is entitled to make partial deliveries. The delivery period does not begin before receipt of an agreed down payment. If the delivery is made by shipment, the customer bears the risk of loss. In the case of delivery and commissioning by AvenDATA, the risk shall pass to the customer upon transfer or commissioning by AvenDATA. This also applies to partial deliveries. AvenDATA is free to choose the shipping route to the exclusion of any liability. The goods shall only be insured against transport damage at the express request and expense of the customer.
a) AvenDATA reserves the ownership and rights to the acquired software until all payments arising from the contract have been received in full. The customer must immediately notify AvenDATA in writing of any third party access to the reserved goods and inform the third party of AvenDATA's rights. The customer shall respect AvenDATA's copyrights. The customer is not permitted to create liens on the software or the data carriers on which they are distributed and to assign these as security.
b) The customer shall be entitled to resell the acquired software in the ordinary course of business (§ 6, para. 10-13 shall apply mutatis mutandis); however, the customer hereby assigns to AvenDATA all claims in the amount of the final invoice amount (including the applicable VAT) for the duration of the retention of title to which it is entitled from the resale against its customers or against third parties. The customer is authorised to collect this claim even after it has been assigned. AvenDATA's authority to collect the claim itself shall remain unaffected thereby. However, AvenDATA is obliged not to collect the claim as long as the customer duly meets his payment obligations and is not in default of payment. If payment default has occurred, AvenDATA may demand that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.
c) The retention of title shall then also extend to the recognised balance insofar as claims against the purchaser are booked in current account (current account retention). In dealings with entrepreneurs, the buyer must insure the goods owned by us for the duration of the retention of title against fire, water, theft and burglary. The rights from these insurances are assigned to us.
Rights of use and reproduction rights
a) The customer receives a non-exclusive and unlimited transferable right to use the software for an agreed number of users. The software is protected by copyright and is made available for use. All other rights associated with the copyright remain with AvenDATA.
b) The customer may reproduce the delivered software to the extent that the respective reproduction is necessary for the use of the software. The necessary duplications include the installation of the software from the original data carrier to the mass memory of the hardware used as well as the loading of the software into the working memory.
c) The customer may also make a duplication for backup purposes. However, only one backup copy may be made and stored. This backup copy shall be marked as such of the software provided.
d) If, for reasons of data security or to ensure a rapid reactivation of the computer system after a total failure, the regular backup of the entire database including the software used is essential, the customer may make backup copies in the absolutely necessary number. The data carriers concerned shall be marked accordingly. The backup copies may only be used for archival purposes.
e) The customer is obliged to take appropriate precautions to prevent unauthorised access by third parties to the software and the documentation. The delivered original data carriers as well as the backup copies shall be stored at a location secured against unauthorized access by third parties. The customer's employees must be expressly informed of compliance with these contractual conditions and the provisions of copyright law.
f) The customer may not make any further copies, including the output of the program code to a printer or the photocopying of the manual. Any additional manuals required by employees must be obtained from AvenDATA.
g) The customer may use the software on hardware available to him. If the customer changes the hardware, he must delete the software from the previously used hardware.
h) Simultaneous storage, stocking or use on more than one hardware device is not permitted. If the buyer wishes to use the software on several hardware configurations at the same time, for example by several employees, he must purchase a corresponding number of program packages.
i) The customer is entitled to deliver software in its original state and as a whole together with a copy of this contract to a subsequent user. This right does not extend to the passing on of copies or partial copies of software.
j) With the delivery of software, the right to use is transferred to the subsequent user, who thereby takes the place of the customer within the meaning of this contract. At the same time the right of the customer to use the software expires.
k) Upon transfer, the customer must immediately and completely delete or otherwise destroy all copies and partial copies of the software as well as modified or edited versions and copies and partial copies thereof. This also applies to all backup copies.
l) Numbers 10 to 12 shall also apply if the transfer consists of a temporary transfer. The rental / licensing of software or parts thereof without the prior written consent of AvenDATA is excluded.
m) For the transfer of software by the respective user to a subsequent user, the latter shall take the place of the preceding user.
n) The software may not be modified, re-developed or further developed, unless this is necessary for error correction or within the scope of the intended use.
o) All further rights to use and exploit the contractual objects are reserved. In particular, neither the customer nor subsequent users have the right to distribute copies of software in the original version or in modified or edited versions.
p) After the availability of a new version of the software, the customer has the right to exchange the software for corresponding contractual items of the new version at an update price listed by AvenDATA. The software as a whole, as purchased by the customer, is subject to exchange. On the day of the exchange, the customer's right to use the respective old program versions of the software expires.
q) In addition, the respective General Terms and Conditions of Business or Contract of the manufacturers or suppliers of software and hardware shall apply to the delivery of third-party software.
a) If AvenDATA carries out the installation of software on the basis of a separate order, operational acceptance tests will be carried out after the installation. This includes an examination and completeness check of the software and documentation, average quality, performance tests for standard and adaptation software as well as tests for the trouble-free restart of the programs after a termination.
b) A waiver of the tests or of individual test phases by the customer falls within his area of risk and does not entitle him to refuse acceptance or acceptance.
c) If the buyer delays the operational acceptance tests, AvenDATA may set the customer a period of 5 days within which the tests are to be carried out. If the customer does not respond to this request, this shall be deemed as approval of the installation of the software.
a) The customer must ensure that AvenDATA is only granted read access to existing data in order to exclude the risk of data loss.
b) The customer shall take appropriate precautions in the event that the software does not work properly in whole or in part (e.g. data backup). In the absence of express written notification in individual cases, the employees of AvenDATA can always assume that all data with which they may come into contact are secured.
a) AvenDATA warrants that the services will be provided by professionally qualified consultants who meet the respective due diligence requirements.
b) The quality of the products is finally described in the order confirmation. If the delivery item or the service is defective, the defect shall be remedied at AvenDATA's discretion by means of subsequent performance, either by remedying the defect or by supplying a defect-free product. As long as AvenDATA complies with its obligation to remedy the defect, the customer shall have no right to demand a reduction of the price or rescission of the contract as long as no failed remedy has been made. Failure to remedy the defect shall not be deemed to have occurred until AvenDATA has been given sufficient opportunity to remedy the defect or to deliver a defect-free product without the agreed quality of the product having been achieved. These claims of the customer due to defects of the goods shall become statute-barred after one year.
c) The duties of examination and notification of defects applicable to merchants pursuant to § 377 HGB (German Commercial Code) shall remain unaffected by this, whereby even in this ratio the notification of a possible defect within 7 days of delivery shall be deemed to have been made without delay within the meaning of § 377 HGB (German Commercial Code).
d) The customer is obliged to allow us to inspect the delivery item designated by him as defective. Within the scope of the remedy of defects/replacement delivery, AvenDATA uses spare parts or components which are new or as good as new in accordance with the respective customary industry standard.
a) AvenDATA is unrestrictedly liable for damages resulting from intent and gross negligence.
b) In the event of slight negligence, AvenDATA shall also have unlimited liability in the event of injury to life, limb or health.
c) In the event of damage caused by slight negligence, regardless of the legal basis, AvenDATA shall be liable to the extent of the foreseeable damage typical for the contract. The sales volume of the order shall be used to determine the foreseeable damage typical for the contract and liability shall be limited to the amount of the order value. AvenDATA shall not be liable for indirect damages and consequential damages to the extent permissible, in particular not for data losses or hardware malfunctions caused by the incompatibility of components existing on the customer's PC system with the new software and for system malfunctions that may arise due to existing misconfigurations or older, disruptive, incompletely removed drivers.
d) The strict liability according to the product liability law remains unaffected by this.
AvenDATA is not liable for the non-fulfilment of contractual obligations insofar as this is due to an obstacle outside its sphere of influence. In this case, the agreed delivery times shall be deemed extended accordingly. If the impediment lasts longer than two months, each party shall be entitled to terminate the contract without notice. Further claims are excluded.
a) It is agreed that the place of jurisdiction shall be Berlin, subject to the proviso that AvenDATA is also entitled to sue at the customer's place of business or a branch office.
b) Should individual provisions be ineffective or unenforceable or become ineffective or unenforceable after conclusion of the contract, the effectiveness of the remaining provisions shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective.
c) The law of the Federal Republic of Germany shall apply.