(1) These general terms and conditions of sale (hereafter referred to as “Terms”) of the company MesserSoft GmbH (hereafter referred to as “MesserSoft”) whose registered office is in Dortmund/Germany shall apply for all contractual and supply relationships between MesserSoft and its customers.
(2) These terms shall apply exclusively. Conflicting or varying business conditions of the customer are not recognized by MesserSoft unless MesserSoft has confirmed acceptance of their validity in writing.
(3) For existing business relationships, these terms shall apply from the first time they are referred to for all subsequent business between MesserSoft and the customer, even if MesserSoft has not explicitly referred to these terms in subsequent business deals.
§2 CONTRACT CREATION, SUPPLY, PRICES, PAYMENT CONDITIONS
(1) Offers from MesserSoft are non binding and without obligation until the final confirmation of the order in so far as no validity date is mentioned in the offer. The order from the customer, whether verbal or written, is a binding offer to MesserSoft. The contract between MesserSoft and the customer comes into existence with the written order confirmation from MesserSoft. Special agreements, side letters or changes always require written confirmation from MesserSoft.
(2) All dates for supplies and performance are non-binding unless explicitly firm dates are confirmed in writing. Deadlines for supply or performance shall commence from the date given in the order confirmation, but not before the complete and proper fulfillment of all duties of the customer, especially the achievement of the technical prerequisites and fulfillment of the duties under the following regulations of these terms as well as the receipt in full of all agreed payments or prepayments in our bank account.
(3) In the case of force majeure or other unforeseeable, unusual events which are not the fault of MesserSoft (including but not limited to production disruptions, strikes, lock-outs, breach of sovereignty, natural catastrophe et al.) the dates and deadlines for execution shall be extended for the duration of the interruption and an appropriate restart time. MesserSoft will inform the customer about the occurrence and end of such conditions without delay. Should it become totally or partially impossible for MesserSoft to perform its obligations because of such events then MesserSoft shall be relieved of such obligations to the extent affected. Any pre-payments from the customer will be returned promptly. Apart from such refunds, the customer shall not be entitled to any further compensation.
(4) The current price list of MesserSoft shall apply in so far as no other price agreement exists in writing. All prices are understood to be net and ex works MesserSoft. Dispatch costs, packing, transport costs, transport insurance, travel costs for employees of MesserSoft and the applicable rate of Value Added Tax shall all be for the customer’s account.
(5) In so far as no other payment terms have been agreed in writing, all invoices from MesserSoft shall be due for payment at once. For services charged by time, MesserSoft will invoice the sums due monthly. If a fixed price has been agreed then MesserSoft can invoice a lump sum of 40% of the agreed price when work commences, 30% after completing half of the agreed scope of performance and the remaining 30% on completion. Reductions for prompt payment by the customer are explicitly excluded in all cases.
(6) After 14 days from the receipt of the invoice and its falling due for payment, the customer shall be deemed to be in default without the need for any reminder. Delayed payments shall incur 8 percent points above the current base interest rate and shall be invoiced accordingly.
§3 COOPERATION OBLIGATION OF THE CUSTOMER
(1) The customer has to make available to MesserSoft all information and documentation necessary to perform its obligations, complete and without errors, before work commences. This applies in particular with respect to equipment, plant, programs and parts of programs which have to work with the software to be supplied or created or have an effect on, or are effected by, the results of the consultancy or programming services of MesserSoft. Should, in the opinion of MesserSoft, a need for further information arise in the course of executing the order, then the customer has to provide such information upon a simple request from MesserSoft without causing any delay of such further documents or information. If the customer does not meet this obligation punctually then the customer shall be liable to recompense MesserSoft for the resulting extra work.
(2) Changes to the technical requirements originally existing when the order was placed or notified by the customer in the time between the contract coming into existence and the beginning of the performance by MesserSoft or during the execution of the order shall be for the customer’s account. The customer shall be liable to recompense MesserSoft for the resulting extra work.
(3) The customer is obliged within the framework of the contractual relationship with MesserSoft, to undertake the usual protection measures for the customer’s EDP systems to prevent system damage or data loss, in particular through the use of a suitable anti-virus program and regular data back-ups. Any responsibility from MesserSoft for loss of data is thus legally excluded.
§4 SCOPE OF PERFORMANCE, USAGE RIGHTS
(1) The description of the scope of supply or performance in the order confirmation shall determine the scope of the obligations of MesserSoft. In as much as the scope of performance of MesserSoft is not limited to the supply and, if necessary, adjustment of standard software, MesserSoft and the customer shall produce an exact description of the intentions of the duty of supply owed by MesserSoft and a specific description of the project and list of obligations including details of the working time involved, the place of operation and other special conditions which must be fulfilled when completing the order.
(2) The cooperation and support of MesserSoft in the creation of the above description and obligations list is payable by the customer to MesserSoft.
(3) Data carriers on which software or other program output is stored or defined which are supplied by MesserSoft within the scope of fulfilling the order, as well as the associated manuals, remain the property of MesserSoft until all payments have been made in full. In as much as data carriers become the property of the customer, MesserSoft retains the copyright and all other use and protection rights for the software stored on the or other stored contents unless the customer has been granted certain rights explicitly.
(4) The scope of supply of MesserSoft involves Software, which is protected by copyright or other commercial protection rights, such as patents, for example. The same applies to other services of MesserSoft, especially individual programming operations. MesserSoft allocates to the customer a non-exclusive, non transferrable right with no time limit for the exclusive own use. With the exception of the rights in the last sentence, all remaining rights for the software and for all results of the services performed for the customer and the services on which they are based as well as all other protected achievements remain with MesserSoft.
(5) MesserSoft allows the use of its software on one computer or the number of computers specified in the order confirmation. If the customer exceeds the set number of computers even once, then the customer is obliged to pay MesserSoft compensation damages. The rate of compensation damages is calculated as double the cost of usage rights according to the currently valid price list of MesserSoft.
(6) In as much as the services and supply of MesserSoft also includes third party software or other protected supplies of third parties, the rights of such third parties shall not be affected. The customer is obliged to pay due respect to the rights of such third parties and any applicable usage restrictions. Should the customer be in breech of this obligation then damages resulting shall be for the sole account of the customer. The customer indemnifies MesserSoft against all possible third party claims.
(7) In the case of a breach of the protected rights of third parties, due payments being delayed or other breaches of contract, MesserSoft can revoke the customer’s usage rights with effect at any time. The customer shall not be relieved of their obligations by this. MesserSoft will restore the revoked rights when all obligations of the customer have been met in full. Should MesserSoft incur costs through this, then these costs must be bourn in full by the customer and must be paid in full by the customer.
(8) The customer is not entitled to copy, duplicate or pass on directly or indirectly to any third party software or other protected material produced or created by MesserSoft without the permission of MesserSoft, nor may the customer reverse engineer, decompile, disassemble, edit, modify, alter or integrate any protected products received from MesserSoft into software or other products in part or in whole.
(9) MesserSoft is not obliged to make available to the customer the source code of software or program work supplied nor to give the results of preliminary work on which such software or programming results are based unless this is promised in the order confirmation from MesserSoft.
(10) If MesserSoft develops new versions of the software supplied, the customer shall have no right to the new version without a special agreement.
(1) Standard software shall be regarded as having been accepted from MesserSoft by the customer when it is delivered to the customer or on installation at the customer’s premises. No specific function test nor any specific acceptance shall be required.
(2) In as much as it is not standard software, the acceptance of all services shall take effect after a function test in accordance with the details in the order confirmation from MesserSoft or a separately agreed description of the scope of supply. If the function test is completed successfully then the customer is obliged to declare acceptance.
(3) If no specific acceptance is declared and if the customer uses the product for 14 days without complaint then the product shall be regarded as having been accepted, even if no joint function test has taken place.
(4) If different timings have been agreed for reaching functionality of different parts of the total scope of supply, then the function test shall be restricted on each occasion to the corresponding partial supply. The acceptance of the last partial supply counts as the acceptance of the complete supply from MesserSoft.
(5) The customer cannot refuse acceptance on the basis that during the course of the work different requirements for the performance specification have arisen, unless these variations during the course of execution of the project were agreed in writing.
§6 GUARANTEE, LIABILITY
(1) The customer is aware that the state of the art makes it impossible to create absolutely fault-free software.
(2) MesserSoft guarantees that the software or product produced by MesserSoft does not infringe any third party rights. If the use of the software by the customer in accordance with the contract is nevertheless restricted or prevented because of the infringements of valid third party rights then MesserSoft shall have the free choice either to change the supply in such a way that the third party rights are no longer infringed or to replace the software so that such rights are no longer infringed, but that in either case the agreed performance target is still met, or to arrange a license agreement with that third party at its own costs. In the event of disputes between the customer and third parties about infringements of rights or of intellectual property, MesserSoft shall have the lead role and the right to take decisions. Should the customer reach an agreement with the third party or conduct a legal dispute with such parties without the involvement of MesserSoft, then no liability upon MesserSoft can arise out of the total process.
(3) Any undertakings or guarantees for the technical details of the supplied software or other scope of supply beyond the details in any documentation or the contractual agreements are not accepted by MesserSoft.
(4) In the event of possible defects MesserSoft is entitled to make two attempts at rectification within an appropriate timescale before the customer can make any further valid claims. A guarantee is excluded if the problem results from circumstances or conditions which are the customer’s responsibility, especially if the customer has failed in his obligation to provide cooperation and support.
(5) Any claims under guarantee for defects shall no longer be valid if made later than twelve months form the date of supply.
(6) MesserSoft shall be responsible for damages which do not apply to the scope of supply itself, regardless of the legal basis, only in the case of gross negligence or deliberate wrongdoing on the part of its organs or senior staff or for faults whose absence was guaranteed by MesserSoft or which MesserSoft deceitfully failed to notify. In the case of culpable default of essential contract obligations, MesserSoft shall also be liable even for gross negligence of non-senior staff. Liability according to product liability regulations is not affected. All other liabilities on the part of MesserSoft are excluded.
§7 DATA PROTECTION, SECRECY
(1) The customer is notified under §33 BDSG (Federal German Data Protection Regulations) that MesserSoft stores user data in machine readable form and processes such data within the scope of fulfilling the purposes of the contract. The meeting of the contract purposes includes releasing such data and registration for a Hotline. All data will be treated as confidential, it will not be passed on to third parties.
(2) Passwords notified by MesserSoft to the customer or its employees are to be kept secret and may not be made accessible to, nor revealed to, third parties. This also applies for the time after the contractual relationship has ended.
§8 FINAL AGREEMENTS
(1) Offsetting or the application of any right of retention by the customer against MesserSoft are explicitly excluded. Any transfer of rights and legal claims arising from the contract by the customer shall only be valid with the written agreement in advance from MesserSoft.
(2) The requirement for a written form in the above conditions is also fulfilled by the electronic communication by fax or e-mail.
(3) The seat of jurisdiction and the place where the contract is deemed to be carried out shall both be Dortmund.
(4) The contractual relationship between MesserSoft and the customer shall be subject to the laws if the Federal Republic of Germany.