I. General Terms and Conditions
§ 1 Application of the General Conditions
1.1 Our business conditions apply exclusively; contradictory or customer’s conditions deviating from our terms and conditions are not recognized, unless expressly agreed to them by DREGER IT in writing.
Our conditions also apply in case of unconditionally rendering service to our clients while knowing of contradictory conditions or customer’s conditions deviating from our terms and conditions..
1.2 Even if no special reference is made to the terms stated above when concluding similar contracts, DREGER IT’s standard terms of contract shall apply in the version retrievable from www.dreger.de at the time of submitting the customer’s declaration unless the contracting parties have made a differing agreement in writing.
§ 2 Conclusion of Contract
2.1. All offers are subject to change and non-binding, unless the offer is declared as binding in writing. A legal obligation only becomes effective by means of a contract being signed by all parties involved or by an order confirmation of DREGER IT in writing, and furthermore by DREGER IT commencing the performance according to contract.
2.2. The customer is bound to declarations regarding contract formation (contract offers) for four weeks.
§ 3 Object of a Contract, Scope of Performance
3.1. The customer has ensured prior to the conclusion of the contract that the software and hardware specifications correspond to his wishes and needs. He knows about the major function features and conditions of the hardware and software.
3.2. Advisory activities according to an agreement performed by DREGER IT do not aim at a specific result or the production of assessments or other works.
3.3. The scope, type and quality of deliveries and services shall be determined by the contract signed by all parties involved or by the order confirmation issued by DREGER IT, otherwise the offer of DREGER IT.
Additional specifications or requirements shall only become part of the contract, if the signatory parties agree upon them in written form or if DREGER IT confirms them in written form. Any subsequent changes to the scope of services shall require written agreement or the written confirmation by DREGER IT.
3.4. Product Description, Presentations, Test Programmes etc. are performance descriptions and not any form of guaranty. A guaranty requires a written declaration issued by the management of DREGER IT.
3.5The customer receives the software, comprised of the machine program and the user manual in electronic form. The technique of the software delivery is based on the agreements; unless agreed upon otherwise, the program and user manual are being preinstalled as OEM-software or delivered via download. The customer has no entitlement to be given the source program. Application support can only be requested by the customer for manufacturer support within the manufacturer’s guarantees, unless otherwise agreed upon.
§ 4 The Customer’s Rights on the Software and Contractual Penalties, Compensations
4.1. The software (program and user manual) are legally protected.
The copyright, patent rights, trademark rights and all other rights on services to the software and any other items that DREGER IT renders or makes available to the customer in the scope of preparation of negotiations and execution of contract are within the relationship of the contracting parties in the sole ownership of DREGER IT.
Insofar as third parties are entitled to rights, DREGER IT is in possession of the necessary utilisation and distribution rights.
The customer accepts the license conditions of the entitled software producer.
4.2. The customer is only entitled to use his own data with the program in his own company for his own purposes on one computer at a time. “Use” is understood to include any permanent or temporary duplication (copy) of the program as a result of storing, loading, running or displaying for the purpose of executing the program and processing the data included in the program performed by the computer. The customer is also entitled to perform the aforementioned actions for the purpose of monitoring and examining, as well as testing, the program. Any data processing devices (e.g. hard drives and central units) on which the programs are completely or in part, temporarily or permanently copied or transferred have to be located within the premises of the purchaser and have to be owned directly by the purchaser. Additional contractual rules for use (e.g. the restriction to a specific number of workstations or persons) are to be installed technically and observed practically. DREGER IT hereby grants the customer for this use the necessary authorization as a non-exclusive right of use including the right for error correction. For the duration of the usage rights § 13 applies.
4.3. The customer may produce the number of backup copies that are deemed necessary for a secure operation. The backup copies have to be stored securely and, if technically possible, marked with the copyright notice of the original data carrier. The copyright notice may not be deleted, altered or suppressed.
Copies that are no longer needed are to be deleted or destroyed. The user’s manual and other documents provided by DREGER IT may only be copied for company-intern purposes.
4.4. Passing on the program, parts of the program, altered or adapted versions and parts of such electronically onto computers of third parties and the circulation of program copies to third parties, are strictly forbidden. This also applies to passing on or circulation for the purpose of a temporary transfer. In case of a breach of these rules by the purchaser, he owes DREGER IT a contractual penalty equivalent to the amount that a third party would have to pay for the software according to the current price list if the amount is not retrievable from this third party. Additional compensation or injunctive relief particularly of the software manufacturer are not excluded. Furthermore is the customer obliged to pass on name and address of the third party to DREGER IT.
4.5. The rules of 4.1. to 4.5. also apply if the customer performs an error elimination or (if permitted) any other alteration of the program or uses the software for training purposes.
4.6. The customer may only decompile the program interface information within the limits of § 69 of the German copyright law (UrhG) and then, only after informing DREGER IT in written form about such intent and requesting, with a period of at least two weeks, a transfer of the required information.
§ 14 applies for all knowledge and information that the customer gains through decompiling.
Prior to involving any third parties, the customer shall require a written statement from the third party directly indicating their compliance with the rules of § 4 and § 14.
4.7. All other acts of utilisation, in particular leasing, renting and distribution in physical and non-physical form, use of the software by or for third parties (e.g. outsourcing, data center activities, application service providing, cloud computing) are prohibited without the prior written consent of DREGER IT.
4.8. Subject matters of the contract, documents, proposals, test programs etc. from DREGER IT that are accessible to the customer before or after the contract has been concluded, remain as intellectual property and have to be treated as business and company secrets of DREGER IT. It is not permitted to use them in the same manner without the written consent of DREGER IT and have to be treated confidentially according to § 14.
§ 5 Service period, delays, service location, force majeure
5.1. Information on times of delivery and service are non-binding unless they are designated as binding by DREGER IT in writing. DREGER IT may provide partial performance if the parts supplied can be used genuinely by the customer.
5.2. Periods of delivery and service shall be extended by the period of time in which the customer is in default of payment under the terms of the contract and as long as circumstances exist for which DREGER IT does not bear responsibility, but that prevent the delivery or service; and a reasonable start-up period after the end of the hindrance.
Those circumstances also include force majeure. Force majeure is equivalent to strike, lock-out and similar circumstances that affect DREGER IT indirectly or directly, in case they are not responsible. Periods also shall be extended by any such time in which the customer violates the contract by not meeting his obligations, e.g. by not providing any piece of information, any access, any supply or staff.
5.3 If the contracting parties subsequently agree upon different or additional services that affect any previously agreed upon terms, those terms shall be extended by a reasonable period of time.
5.4. Any reminders and period settings of the customer require to be in written form in order to be valid. A grace period has to be appropriate. A period of less than two weeks shall only be appropriate in cases of special urgency.
5.5. Service location of trainings is the location where the training has to take place. Additionally is the service location for all services from and in the context of this contract the registered office of DREGER IT.
§ 6 Contractual Commitment and Termination of Contract
6.1. Each termination of the further exchange of service (e.g. withdrawal, reduction, cancellation on important grounds, compensation in place of delivery) has to be announced with specification of reasons and allowing a reasonable period of time for settling (normally at least two weeks). In cases required by law (see § 323 (2) BGB), the setting of a deadline can be omitted. Whoever is entirely or predominantly responsible for the disruption can not require the contract to be rescinded.
6.2. Any declarations made in this context, require the written form in order to be effective.
§ 7 Compensation, Payment, Offset
7.1. The agreed remuneration is payable after the hardware and software delivery by DREGER IT and invoicing towards the customer before the delivery to him in advance; for trainings after the execution of trainings and upon the customer’s receipt of the invoice without deduction and within 14 days. The remuneration for maintenance contracts is due in advance on a monthly basis after receipt of an invoice until the third business day of a month.
7.2. Travel costs, expenses, accessories, shipping costs and telecommunication costs are payable additionally on a basis of actuals. Travel times are working times. Additional services requested by the customer (e.g. consulting and support for installing programs, maintenance, servicing) are invoiced according to the corresponding current price list of DREGER IT.
7.3. All prices exclude the, at the time of performance, respective sales tax set by law.
7.4. The customer can only set-off the demands that are indisputable or legally determined by DREGER IT. Excluding § 354 a HGB (German Commercial Code), the customer may only assign claims to a third party based on this contract with the prior written consent of DREGER IT. The customer shall only have a right of retention or the plea of non-performance within this contractual relationship.
§ 8 Obligations of the Customer
8.1. The customer is obliged to have all delivered goods of DREGER IT examined by a competent employee immediately after delivery or upon accessibility according to the regulations under commercial law (§377 HGB) and recognized defects notified in written form with a detailed description of the defect. The customer shall thoroughly test each delivered item for usability in the concrete situation prior to commencing productive use thereof. This also applies to delivered items the customer receives within the scope of warranty and a maintenance- and servicing contract.
8.2. The customer is obliged to make appropriate arrangements for such a case that delivered items do not operate properly as a whole or in part (e.g. data storage, failure analysis, examination of the results on a regular basis, emergency planning). It is within the customer’s responsibility to grant the functionality of the working environment for the delivered items.
§ 9 Latent Defects, Manufacturer Support
9.1. The hard- and software shall be of the agreed characteristics and be suitable for the customary use according to the contract; in case of a non-existing agreement, be suitable for normal use. They satisfy the criteria of practical capability and own the usual quality for soft- and hardware of this type. The contracting parties agree that it is not possible to develop programs of such kind, as they are error-free for all application conditions.
9.2. A functional impairment that results from hardware defects (if the hardware was not delivered in the context of this contract by DREGER IT, environmental conditions, misuse or the like), is not a defect. A minor reduction of the quality shall not be taken into account.
9.3. In cases of material defects, DREGER IT can at first provide supplementary performance. The provision of supplementary performance happens by choice of DREGER IT through removal of the defect, through delivery of hard- and software that does not have this defect, or through DREGER IT showing possibilities of avoiding the effects of the defect. At least three attempts to remedy a defect are to be accepted. An equivalent new program version or the equivalent previous program version which had not contained the defect, is to be accepted by the customer when this is reasonable.
9.4. The customer supports DREGER IT with the error analysis and correction of defects by precisely describing occurring problems, informing DREGER IT in detail and granting it the necessary time and opportunities to remove the defects.
DREGER IT can remove the defect by choice either on location or on its business premises and refer the customer to the manufacturer support. DREGER IT may also provide services by means of remote maintenance.
The customer has to make sure to provide the necessary technical requirements at his own expenses and has to grant access to his IT system after a corresponding previous announcement.
9.5. DREGER IT can demand reimbursement for the additional costs for troubleshooting if the hard- and software has been modified, has been used outside of the specified environment or has been operated inappropriately. It may demand reimbursement of expenses if no defect has been found.
9.6. If DREGER IT definitely refuses to remedy the defect or the supplementary performance definitely fails or can not be reasonably expected from the customer, he can, in accordance with § 6 rescind the contract or reduce compensation adequately and claim damages or reimbursement for expenses in accordance with § 11. All such claims lapse in accordance with § 12.
§ 10 Legal Defects
10.1. DREGER IT grants that no rights of third parties are violated through the use of the software by the customer in accordance with the provisions of the contract. In the case of a legal defect DREGER IT grants warranty by providing, after the customer’s choice of a product, a facility to use the software or a similar software which can be deemed legally unobjectionable.
10.2. The customer shall immediately inform DREGER IT if a third party asserts intellectual property rights (e.g. copyright or patent rights) on the software. The customer authorizes DREGER IT to handle the dispute with the third party on its own at its own costs.
As long as DREGER IT makes use of this authorization, the customer may not accept claims of a third party on its own without the consent of DREGER IT; in that case DREGER IT shall defend the third party claims at its own expense and hold the customer harmless from all costs associated with the defence against such claims, unless these arose from a breach of duty by the customer (e.g. the contractually improper use of the programs).
10.3. The regulations of sections 9.3. to 9.6. apply accordingly. For the termination of the service exchange § 6 applies. For liability § 11 applies, for the limitation § 12.
§ 11 Liability
11.1. DREGER IT shall be liable according to legal conditions, if the customer claims damages that are due to intent or gross negligence, including intent or gross negligence by their representatives or vicarious agents. Insofar as DREGER IT is not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable and typically occurring damages.
11.2. DREGER IT shall be liable according to the legal conditions, if DREGER IT has culpably infringed a material contractual obligation. An important contractual obligation exists if the breach of duty applies to an obligation upon whose fulfilment the customer has
legitimate expectation. In this case, the liability for damages shall be limited to the foreseeable and typically occurring damages, as well.
11.3. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability according to the German product liability act.
11.4. Further liability on the basis of compensation for damages beyond the terms stated above – regardless of the legal nature of the asserted claims - is excluded.
This applies in particular to damage claims from indebtness upon conclusion of contract, because of special breaches of duty or delictually claims to compensation for property damage according to §823 et seq.BGB (German Civil Law).
11.5. If claims for damages against us are excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, staff, representatives and vicarious agents of DREGER IT.
11.6. DREGER IT is not liable for inappropriate use or implementation by the principal of those recommendations, which were provided within the framework of consultation services or in the working documents by the customer.
§ 12 Period of Limitation
The period of limitation for all claims regarding warranty for defects of title and quality shall be twelve months, beginning with the transfer of risks.
§ 13 Begin and End of the Customer’s rights, Reservation of Title
13.1. Ownership of items delivered and the rights pursuant to § 4 shall only pass to the customer after the complete payment of the contractual remuneration.
Prior to this, the customer only has a provisional right of use under the law on obligations which can be revoked according to subsection 2.
13.2. DREGER IT can revoke the rights according to § 4 on good cause to the conditions of § 6. Good cause shall be deemed to exist, if it is not reasonable for DREGER IT to be expected to continue to meet the contractual obligation, especially if the customer does not pay the remuneration or commits a significant breach against § 4.
13.3. If the rights do not arise according to § 4 or if they end, DREGER IT can request that the customer shall return the materials provided or a declaration in written form that they have been destroyed, as well as the deletion or destruction of all copies of the items that have been provided and a confirmation in written from that this has been done.
13.4. Before the transfer of ownership the following applies:
13.4.1. The customer is obliged to treat the item with care; he is especially obliged to insure it sufficiently at his own expense against fire, water and theft damages to the replacement value. In as much as maintenance and inspection work is necessary, the customer has to carry them out at his own expenses.
13.4.2. In the event of attachments or other interventions by third parties, the customer has to inform us immediately and in written form, that we can file suit according to § 771 ZPO.
As far as the third party is in no position to refund our judicial or extrajudicial expenses of a suit according to § 771 ZPO, the customer shall be liable for the resulting loss.
13.4.3. The customer is allowed to resell the purchased objects in the ordinary course of business; however, does he already now transfer to us all claims to the amount of the final invoiced amount (including VAT) of our claims, that arise from the resale to his customers or third parties; this happens independently from whether the goods have been resold without or after further processing. The customer shall continue to be allowed to enforce those claims even after they have been assigned. Our authority to enforce the claims shall remain untouched by this. However, are we obliged not to collect the sum due, as long as the customer fulfils his financial obligations from the earned revenue, is not in payment delay and there is in particular no claim for opening an insolvency proceedings or suspension of payments. However, if that is the case, we can demand the customer to name us the assigned accounts and their obligors, give all the necessary information for the collection, hands over all corresponding documents and informs the debtors (third parties) about the assignment.
13.4.4. The processing or modification of the purchased item by the customer shall always be carried out on our behalf. If the purchased object is processed together with other items not belonging to us, we shall consequently acquire co-ownership of the new object in proportion to the value of the purchased object (final invoiced amount including VAT) to the other processed items at the time the processing takes place. Moreover, the same shall apply for the object created by processing as for the purchased object delivered subject to reservation of proprietary rights.
13.4.5. If the purchased object is mixed with other items not belonging to us, we shall consequently acquire co-ownership of the new object in proportion to the value of the purchased object (final invoiced amount including VAT) to the other mixed items at the time the mixing takes place. If the mixing is performed in such a manner that the item of the customer is to be regarded as the principal item, then it is deemed agreed that the customer transfers a prorate co-ownership. The customer will detain the sole or joint ownership for us that has arisen in this way.
13.4.6. In order to secure our claims against the customer, he shall also assign to us the claims, which are created against a third party by the combination of the purchased goods with real property.
§ 14 Secrecy
14.1 The contracting parties are obliged to treat as confidential, all objects which are provided or made acquainted by the other contracting party (e.g. software, documents, information) prior to or during the contractual performance and that are legally protected or contain commercial- or operational secrets or are marked as confidential, also beyond the term of the contract, unless such objects are already in the public domain without breach of this duty. The contracting parties keep and secure these subject matters in such a manner that access by third parties is excluded.
14.2. The customer shall only make contractual materials available to those employees and third parties who require access to them due to the performance of their job-related duties. He shall inform these persons about the need for these objects to be kept confidential.
14.3. DREGER IT shall process the customer’s data necessary for the conduct of its business adhering to the provisions of the data protection law.
DREGER IT may name the customer as a reference customer following the successful conclusion of service.
§ 15 Written Form and Legal Jurisdiction
15.1. Modifications and amendments to the contract require the written form in order to be effective. The requirement of written form may only be waived in written form.
15.2. The law of the Federal Republic of Germany applies.
15.3. The sole place of legal jurisdiction for all disputes arising from the contract shall be Frankfurt am Main. DREGER IT can, contrary to sentence one, institute proceedings against the customer at his place of residence too.
§ 16 Trainings
16.1. Trainings are executed according to a separate agreement with the customer determining the location. For a training, the customer provides suitable premises and technical equipment.
16.2. DREGER IT may cancel a training event due to important grounds. DREGER IT will notify the customer in a timely manner and offer replacement dates.
II. Special Conditions
§ 17 Consulting
If consulting services are agreed upon, the following conditions apply additionally and in addition to the general terms and conditions of section I, excluding § 13 that does not apply to consulting services.
17.1. Services of DREGER IT are rendered once the necessary appraisals, analyses and resulting conclusions or recommendations have been compiled and explained to the customer. It is irrelevant whether or when the conclusions or recommendations are implemented.
17.2. The customer is obliged to support DREGER IT as actively as possible and to create the necessary prerequisites in his business sphere for the proper execution of the order; in particular, he has to make all the necessary or important documents available in a timely manner.
17.3. If requested by DREGER IT, the customer has to confirm the accuracy and integrity of the documents provided by him and also of his information and oral declarations in written form.
17.4. DREGER IT executes all tasks with greatest diligence and at all times based on the individual situation and needs of the customer.
17.5. Delivered data from third parties or the customer are only checked for plausibility, if any other evidence for incorrectness is absent. The conclusions and recommendations gained in the appraisals are given in best knowledge and in accordance with the recognized standards of practical experience.
17.6. The customer guarantees that the reports, organisation plans, outlines, drawings, lists and calculations made by DREGER IT in the context of the consulting contract are only used for contractually intended purposes and are only copied, processes, translated, reprinted, distributed or published with the explicit permission in individual cases. The use of the rendered consulting services for companies that are connected to the customer or for other third parties, requires an explicit written agreement.
17.7. If the work results are protected by copyright, the customer receives in these cases a simple, unlimited in terms of time and place, irrevocable and non-transferable right of use at those work results.
17.8. Until all claims have been settled, DREGER IT has the right of retention on the documents made available by them, on whose execution they abstain, if the customer proves that the retention will cause a disproportionally high, if both interests have been considered, not justifiable harm.
17.9. DREGER IT has to return all documents that have been forwarded by the customer or third parties due to the execution of the order, after all claims of the consulting contract have been settled. This does not apply to the correspondence between the parties nor for simple copies of reports, organisation plans, drawings, lists, calculations, etc. that have been made in the context of the consulting order if the customer has received the originals.
17.10. The obligation to hold documents after the termination of a job does not exist for DREGER IT.
§ 18 Maintenance
If maintenance services are agreed upon, the following conditions apply additionally and in addition to the general terms and conditions of section I, excluding § 13 that does not apply to maintenance services
18.1. Scope of Services
DREGER IT shall perform all specified and defined services, agreed upon in the maintenance contract, in a proper and professional manner and in compliance with the state of the art technical practice. In individual cases, the service can be performed by third parties ordered by DREGER IT, in particular by partners of DREGER IT, service personnel or corresponding contract partners of the product and software manufacturers. DREGER IT performs all services according to the timeframes defined in the corresponding overview of services. All maintenance work that arises outside the agreed upon timeframes only takes place after prior approval of the customer. The account for that is billed separately according to the general price list of DREGER IT that is available to the customer when concluding the maintenance contract. Shall the installation of replacement equipment be part of the maintenance contract, DREGER IT is not obliged to have those replacement equipment in stock. The ordering of the replacement equipment requires an additional commission by the customer and a separate invoice. Brand-new replacement equipment or replacement equipment that is, without being brand-new, usable or applicable in the same way, is delivered by DREGER IT and is transferred upon the complete payment into the property of the customer. Services that become necessary if hardware or software under conditions or with accessories and consumable material is used, that is not compliant with the specifications of the manufacturer (e.g. soiling, deviations in the power supply, etc.) are not included in the contract. This also applies to services in the context of interface problems with alien devices.
DREGER IT does not carry out maintenance at hardware or software that is used under violation of licensing rights. The customer is obliged to inform DREGER IT about such proceedings.
18.2. The customer notifies DREGER IT if maintenance work has to be done in areas where risks for health or body exist, in particular if x-ray, radioactive or other ionising radiation are present. The customer is obliged to observe the corresponding safety regulations. In addition to that it is a responsibility of the customer to ensure that the hardware and software not delivered by DREGER IT correspond to the provisions of law.
18.3. Limitation of the Maintenance Obligation
Defects and mistakes that have been caused by force majeure, fire, earthquakes, floods and the like or by accidents, misuse or improper operation are excluded from maintenance obligations. This also applies to defects caused by tampering, maintenance and repair work or alterations by third parties or appliances that have not been utilized by DREGER IT and have not been approved by DREGER IT in written form.
18.4. If hardware or software is relocated from the location agreed upon in the maintenance contract to another location, DREGER IT has the right to exclude them from the maintenance or invoice the resulting additional expenses. The customer has to inform DREGER IT about a planned relocation.
18.5. Additional Services and aids
If necessary, DREGER IT shall perform the necessary additional repair work for upholding the readiness for service for the configuration of the hardware and software agreed upon in the maintenance contract. Unless otherwise stipulated, the resulting costs e.g. the material, will be invoiced to the customer. Before beginning with the repair work, DREGER IT will obtain approval form the customer. If the approval is denied, even when the repair work is necessary for the readiness of service, DREGER IT is free of any performances and liability.
Furthermore is DREGER IT entitled to terminate the maintenance contract extraordinarily for good cause.
All aids provided by DREGER IT remain property of DREGER IT even if they are stored by the customer and are to be returned to DREGER IT upon termination of the maintenance contract.
Maintenance contracts can be terminated within a period of three months at the end of the agreed upon term by both parties ordinarily. If the contract is not terminated, it will be respectively extended for one year. The right of both contracting parties to give extraordinary notice of termination of the contract for important cause, remains unaffected.