General Terms and Conditions
§ 1 Services
- Where ISBE acts as agent for the sale of third party software, ISBE will handle the correspondence with the vendor or manufacturer of the said software. ISBE will then submit to the customer an offer in the name of the vendor or manufacturer, so that the customer may then directly notify ISBE, as representative of the vendor or manufacturer, of its acceptance.
- In the case of the sale of standard software by ISBE, ISBE will grant to the customer the agreed rights of use. This does not involve any adaptation or linkage of the software to the customer’s own software environment.
- If the development of software forms the object of the contract, the software will be developed on the basis of the agreed requirements. The customer shall be obliged to make available to ISBE the necessary information and documents for this purpose.
- Within the scope agreed, ISBE will link in the software with the customer’s hardware and software environment, test it and put it into operation. The customer shall accordingly inform ISBE punctually and completely of the hardware and software that is currently in use.
- So far as agreed, ISBE will train the customer / the customer’s employees in the scope defined above.
- The customer shall ensure that the cooperation required for the installation of the software and training in the use of the software shall be made available when needed. This shall comprise, in particular, the making available of access data and premises, as well as the required infrastructure and access to the customer’s workstations. The costs of these activities of cooperation shall be borne by the customer directly.
- Dates, including in particular the installation dates referred to in the offer or confirmation of the order, are only to be regarded as binding when this has been expressly agreed in writing between the parties. In case of delay on the part of ISBE, the customer may only withdraw from the contract or claim indemnification in place of the service agreed if explicit warning has first been given, with an appropriate deadline set for the supply of the agreed services.
- The compensation specified in the offer covers only the installation of the software products on a computer and the training of up to 5 customer employees to the extent stated. This compensation does not include travel expenses and other incidental expenses. These are to be remunerated additionally as defined in § 4 below.
- All additional services supplied shall be remunerated by the customer at an hourly rate of EUR 250,00 with the addition of VAT for each ISBE employee. If work is carried out at the customer’s request at weekends (Saturday or Sunday) or on statutory public holidays (in the federal state of Baden-Württemberg), the hourly rate shall be increased by 50 %.
§ 2 Property rights, rights of use, copyright
- After payment in full of the compensation agreed for the software and installation of the software, the customer shall receive a non-exclusive right of use unrestricted in terms of time or place. In other respects all rights connected with the software and any incidental services that may be supplied shall remain with ISBE and its licensees.
- The customer may temporarily hand over the software to third parties for commercial purposes (e.g. for hiring or leasing) only with the prior written consent of ISBE. In case the software should be sold to a third party, ISBE must be notified and the purchaser shall be placed under an obligation to declare himself in agreement with the present terms and conditions continuing to be in force. The customer may not hand over the software to third parties when there are grounds for suspecting that the third party will violate the terms and conditions of the contract. As a result of the software’s being passed and sold on to third parties, all rights of use vested in the customer shall expire. Any copies of the software not handed over must be destroyed by the customer immediately.
- ISBE shall be entitled to develop, either on its own initiative or for third parties, further software modules based on the software or parts thereof and to market these, even if competitors of the customer are involved in this connection.
- So far as not otherwise agreed, the customer shall only have the right to make use of the software in a single workstation version. If a multiple workstation license shall be acquired, the right of use shall apply only to the agreed number of different computers accessing the software simultaneously. Simultaneous use of the software that goes beyond the scope agreed is not permitted. The use of the software on a server shall be permissible only when steps are taken to ensure that simultaneous use of the software by more than the agreed number of users has been excluded. If the customer replaces his hardware, he must delete the software on the hardware hitherto in use.
- The customer shall not be entitled to make changes or interfere with the software, either directly or through third parties, not even with a view to the rectification of any program errors. Rectification of program errors by the customer, either directly or through third parties, shall be permissible in exceptional cases only when ISBE has definitely declined to rectify the error directly. ISBE will admit no liability for errors in the software which are attributable either in whole or in part to subsequent intervention by the customer.
- After the successful installation of the software, the customer shall have no claim to program extensions or program modifications free of charge, even if these become necessary as a result of statutory changes.
- The customer is not permitted to search for the source code of the software, or to read out, to reproduce or modify it. Violation of any copy protection that ISBE may have installed is likewise forbidden.
- In so far as third party software may be handed over to the customer on the basis of this agreement, or in so far as third party software may be linked in with the software that forms the object of the agreement, the terms and conditions of use and licensing conditions of the manufacturer of the third party software shall apply in addition. ISBE will make these available to the customer on request.
- The right of use that forms the object of the contract shall be conditional on the software being used in accordance with the terms of the contract. The customer’s right of use shall expire automatically and without any need of notice being given if the customer violates the conditions of use detailed in this agreement. The customer shall then be obliged to return the software and all copies that have been made of the software to ISBE or to annihilate the same. The customer must confirm in writing that the annihilation or deletion has been carried out.
§ 3 Rights of the customer in case of defects
- The services supplied by ISBE shall be considered free from defects if they answer to the agreed specifications. The customer is aware that, based on the current state of the art, it is not possible to develop software that is completely free from errors. Thus no guarantee claims shall apply in the case of regular software errors such as do not impair the usefulness of the software or affect it only to an inconsiderable degree.
- The customer shall be obliged to check the software delivered by ISBE immediately for errors and to ensure its functional effectiveness, and in case of defects to notify ISBE at once. The software shall be considered to be in accordance with the terms of the agreement and thus authorized, provided that evident defects be not complained of in a written communication to ISBE within seven days from the time of installation, or in the case of concealed defects within seven days from the time they are discovered.
- ISBE shall have the right to scrutinize the defects complained of. If the customer’s complaints prove unfounded, the customer shall be obliged to indemnify ISBE for the additional labor involved.
- The customer must describe the defects complained of as exactly as possible, and shall be obliged, so far as is possible and as may reasonably be expected, to make available to ISBE the documents and information required for scrutiny of the defect.
- All customer claims based on defects in the software or installation of the software shall lapse one year after the conclusion of the work of installation. This shall not apply in cases where ISBE has brought about the defect of deliberate intent, or where ISBE in exceptional cases has issued an express guarantee that the software is free from errors.
- The parties are agreed that ISBE admits no liability for third party software, so that claims under guarantee in connection with this third party software shall only apply in relation to the manufacturer of the said software.
§4 Software maintenance and support
- Within the framework of a contract for software maintenance, ISBE regularly provides new major versions of the software developed by ISBE at the latest state of development. If required, ISBE provides customers with service and/or maintenance versions to the current major version. Customers will be informed about this update service by newsletter and, if applicable, by notification of the individual access data.
- Software maintenance includes:
- Access to the ISBE software portal with download options
- In case of customer-specific software, access to the password-protected area of the ISBE software-portal with possibilities for downloading
- Access to older versions of the software
- Free provision of software adaptations due to changes in legal regulations and small software enhancements (updates, not upgrades).
- Services not included are e.g. hotline service, on-site service, assistance with software configuration, consulting when using the software on other hardware or under another operating system, maintenance or consulting services after the customer has interfered with the program code (e.g. add-ins) or maintenance or consulting services regarding the cooperation of the contractual software with other programs which are not subject of the contract with ISBE.
- To use the ISBE software maintenance and care services an internet connection is necessary. This has to be provided and secured by the customer at his own expense.
- Upon request, the customer shall provide ISBE with complete information on the configuration and topology of his computer systems and networks.
- The customer is liable for the use and possible misuse of access data received from ISBE.
- The remuneration of ISBE for the software maintenance and support services is to be paid by the customer annually in advance. As long as the customer has not paid the remuneration for the current year, ISBE is entitled to withhold the contractual services.
- The adaptation, saving or changing of third party software after the import of new program versions or changes or enhancements of the supported programs, is the sole responsibility of the customer. ISBE assumes no responsibility for the maintenance or backup of the customer's individual data. The customer is responsible for regularly backing up his own individually created data, especially before any changes or additions to the provided programs. ISBE recommends its customers to backup their data at least every 24 hours. ISBE is not liable for any loss of data.
- The contract for software maintenance and support has a term of one year and is extended by one year at a time if it is not terminated through written cancellation by one of the contracting parties three months before the end of the contract year.
- Neither party is entitled to assign the rights and obligations resulting from the contract for software maintenance and servicing to third parties without the consent of the other party, which may not be withheld against good faith. ISBE is, however, entitled to involve a subcontractor in the provision of the software maintenance and care services.
§ 5 Due date of payment
- Compensation amounts that have been invoiced for shall fall due for payment without deductions immediately, i.e. within six working days from the receipt of the invoice. Statutory VAT will be added to the payment for all services supplied.
§ 6 Liability of ISBE
- Any liability on the part of ISBE for violation of inessential contractual obligations based on minor negligence is hereby excluded. In case of the violation of cardinal contractual obligations based on minor negligence, including cases where statutory representatives, subcontractors or vicarious agents are responsible, ISBE’s liability shall be restricted to the foreseeable damages typical of such agreements, to a maximum amount however of EUR 50,000 per incident of damages. ISBE shall however admit liability without restriction for damages suffered by the customer to life, limb or health and brought about by ISBE’s employees, statutory representatives, subcontractors or vicarious agents, as well as for any damage occasioned of deliberate intent or as a result of gross negligence.
- ISBE admits no liability for purely financial damages, indirect damages or consequential damages, such as e.g. loss of profit, failed economies, loss of production or unexercised rights of use.
- Liability for the loss of data shall be restricted to the typical cost of recovery which would have arisen in case of the regular creation of suitable data backups in keeping with the risk.
- Any other indemnification claims on the part of the customer, or claims over and above those expressly referred to in this agreement, on whatever legal grounds, are hereby excluded.
- Indemnification claims on the part of the customer shall lapse one year from the time at which the claim comes into existence, at latest however one year after the termination of this contract, except in cases where the indemnification claims are based on deliberate intent or malice aforethought.
§ 7 Obligation of secrecy
- Both parties shall treat as confidential any information about the other contracting partner that they may become aware of in connection with the fulfillment of the contract. Such information shall not be disclosed to third parties unless this shall be required for purposes connected with the fulfillment of the contract. This shall apply in particular to the methods and procedures used by ISBE, as well as the documentation, materials and other documents relating to the software. Both parties shall lay their employees under the same obligation.
- ISBE shall be entitled to include the name of the customer for marketing purposes in a list of references, and to let it be known that it has a business relationship with the customer and that the present contract has been concluded with the customer. Any other disclosures for publicity purposes shall be subject to the prior consent of the customer.
§ 8 Other matters
- This agreement between the parties shall be subject exclusively to the terms and conditions of contractual agreements defined here. Any general terms and conditions of business on the part of the customer are hereby expressly excluded.
- If individual clauses of this contract should be or become ineffective or impossible to execute, the validity of the remaining stipulations shall not be affected thereby. The parties to the contract shall then be obliged to agree upon an admissible clause that approximates as closely as possible to the ineffective stipulation.
- All claims based on this agreement shall be subject to the law of the Federal Republic of Germany. Any application of the UN Sales Law is hereby excluded. The court of law responsible for any litigation connected with this contractual agreement shall be that of Stuttgart. ISBE shall however also be entitled to bring suit at the customer’s place of business.