General Terms and Conditions of science + computing ag
(including licensing and maintenance conditions)
Status: January 2007
§ 1 Binding character of these terms and conditions
(1) All offers, deliveries of hard and software as well as the provision of services – hereinafter collectively referred to as "SERVICE(S) - of science + computing ag – hereinafter referred to as "s+c" – are made exclusively based on these General Business Terms. These shall also apply to all future business relations, even if these are not expressly agreed again. These terms and conditions shall be deemed as accepted in commercial transactions no later than upon recourse to the agreed SERVICE, the request of a permanent license key for the software licensed by s+c or software licensed by a third party ("Licensor"), which s+c justifiably sub-licenses to the CONTRACTUAL PARTNER (hereinafter collectively referred to as "scSoftware") or with the conclusion of a maintenance agreement.
(2) Any existing business terms of the contractual partner which deviate from these business terms are hereby expressly contradicted unless a written agreement exists between the contractual parties with regard to the deviation concerned.
§ 2 Offer and conclusion of contract
The contractual partner receives a service offer from s+c concerning the SERVICE requested by him. If the contractual partner agrees he shall accept this offer.
§ 3 Services
(1) The scope of the individual SERVICE(S) can be derived from the contract itself, the offer as well as from the other specifications, such as e.g. brochures.
(2) Changes in contents and/or organization or deviations from the described SERVICE can be undertaken before or during the execution of the SERVICE(S) insofar as these changes or deviations do not change the essential nature of the SERVICE(S).
(3) Delivery dates are principally non-binding and only to be understood as approx. information insofar as they were not expressly promised in writing as “binding“ by s+c.
(4) s+c is entitled to provide partial services.
(5) s+c is entitled to use the services of sub-contractors when providing the SERVICES.
§ 4 Licensing agreement
(1) s+c grants the contractual partner a simple and non-transferable right to use the scSoftware including possible additional programs and associated material either for a definite or an indefinite period of time for a contractually stipulated number of computers ("License"). The scSoftware may only be installed and used simultaneously on the number of computers for which a license exists.
(2) However, the licensing agreement for scSoftware includes neither upgrades nor updates; these can however be the object of a separate maintenance agreement.
(3) The scSoftware handed-over to the contractual partner including the full documentation and all copies, prepared by the contractual partner, shall remain the property of s+c or of the Licensor. s+c or the Licensor remain holders of all rights to the scSoftware including the respective associated material, even if the contractual partner modifies these or connects these with his own programs or those of a third party unless the contractual partner is granted explicit rights thereto. In case of modifications or connections of the scSoftware as well as with the creation of copies the contractual partner commits himself to affix a corresponding copyright notice.
(4) The contractual partner is not permitted
- to make copies of the scSoftware – with the exception of one (1) back-up copy,
- to sell, lease, lend, sublicense or otherwise transfer the scSoftware to third parties insofar as not expressly otherwise agreed with s+c,
- to modify the scSoftware or create deviating works based thereupon unless otherwise stipulated by law,
- to remove property or copyright notices, labels or marks of s+c or its licensors
from the scSoftware or a part thereof,
- to export or re-export the scSoftware either directly or indirectly without a
corresponding export license from s+c.
(5) If the contractual partner breaches § 4 Par. 4 of these General Business Terms, s+c is entitled to an extraordinary right of termination with immediate effect; the contractual partner must in this case return the scSoftware including all documentation to s+c immediately with the consequence that he may no longer use the scSoftware or must compensate s+c for this as determined by s+c.
(6) s+c indemnifies the contractual partner from all claims of third parties asserted against him from the infringement of property rights to the provided programs in their version as per contract. s+c is entitled to make necessary modifications to the software at the contractual partner at own costs owing to the claims of property rights by third parties.
(7) The risk shall pass to the contractual partner when the license key is handed over (= date of the license key).
§ 5 Maintenance agreement
(1) The object of the maintenance is the scSoftware. s+c shall provide the contractual partner technical support from Monday to Friday at the times stipulated by s+c. The Support Service of s+c can be contacted via the e-mail address stated in the product documentation.
(2) The maintenance comprises the following services of s+c:
- The correction of errors to the scSoftware, insofar as these occurred with proper application of the scSoftware and do not just insignificantly impair the use of the scSoftware as per contract. Depending on the significance of the error the errors shall be corrected through the delivery of an improved software version or through a reference to a possible circumvention of the implications of the error.
- The update of the scSoftware: Further developments and adjustments to new operating system versions as well as the provision of corresponding documentation.
- In addition, s+c shall provide the contractual partner one (1) copy each of the corresponding version of each update and each upgrade of the scSoftware, which is published during the maintenance period, immediately after they appear.
(3) The contractual partner shall make the following information available to s+c with each enquiry:
- scSoftware version number,
- machine type, operating system and version,
- description in order to be able to reproduce the problem,
- specific error number and report as well as the circumstances under which they occur,
- other information, which is useful for identifying the error and
- telephone number as well as contact address for technical queries.
(4) The remedy of interferences and damages which are caused by improper handling by the contractual partner, by the influence of a third party or by force majeure, are not the object of the maintenance agreement, can however be agreed between the contractual parties in an individual case against payment of a separate fee. The same applies to damages and interferences which are caused by environmental conditions at the place of installation, by faults or non-provision of the power supply, faulty hardware or other influences for which s+c is not responsible.
(5) However, the maintenance does not include:
- services on site in conjunction with installation, consulting, training, adjustment, configuration, moves or reconfiguration of the scSoftware,
- maintenance or support of operating systems as well as
- support of software which was developed by the contractual partner or which the contractual partner procured from a third party.
(6) The contractual partner is not entitled to any claim against s+c for delivery of a new software which is not a part of the ordered scSoftware. The contractual partner is on the other hand entitled to all releases of the ordered scSoftware; however should s+c publish another software product with related, however different functions under another product name, the contractual partner is not entitled to this software as an update or upgrade to the ordered software.
(7) s+c shall make the technical support available for the actual version of the scSoftware. Support shall be provided for each previous version up to six (6) months after the date upon which the next successive version is published.
(8) s+c is entitled to discontinue the support of certain platforms through the scSoftware. s+c shall carry this out in the following two steps:
- Initially it shall be determined that the platform is "out-of-date", i.e. s+c shall only make new versions available still at the express request of the contractual partner.
- No less than one year after the platform has been classified as "out-of-date" it shall be deemed as "discontinued", i.e. no new versions shall be made available by s+c for this platform any more.
(9) The classification of platforms as "out-of-date" or "discontinued" (cf. § 5 Par. 8 of the General Business Terms) will be published on the website of s+c under "de.atos.net/sc". The contractual partner is responsible for regularly examining the website of s+c for changes to platforms.
§ 6 Contract for work and services
(1) If a contract for work and services is concluded between the parties s+c shall owe the SERVICE agreed therein and the contractual partner the agreed remuneration for the work.
(2) The SERVICE is to be accepted by the contractual partner. The SERVICE shall be accepted after the full completion and hand-over of the SERVICE to the contractual partner. s+c shall agree a common acceptance date with the contractual partner and prepare a hand-over and acceptance protocol that shall be signed by both parties.
(3) If no common hand-over and acceptance date is carried out despite corresponding information by s+c in a text form (in writing, per e-mail or per fax) and if the SERVICES are put into operation for four weeks by the contractual partner without objection and without complaints, the SERVICES shall be deemed as properly accepted without defects by the contractual partner four weeks after commissioning – no later however than six weeks after the SERVICES were handed over insofar as no justified complaints are made by the customer during this period of time.
§ 7 Remuneration
(1) The contractual partner is obliged to pay the remuneration for the SERVICE or for the scSoftware as stated in the offer or in the contract respectively plus the applicable rate of value added tax.
(2) The prices of s+c shall apply from the registered seat of the respective s+cbranch. Insofar as not otherwise regulated as per contract, payments are also to be made in case of partial deliveries. The terms of payment shown on the invoice shall apply.
(3) If traveling, accommodation expenses or other costs are incurred to the employees of s+c within the framework of carrying out the SERVICES these shall be shown in the offer accordingly and invoiced to the contractual partner. Should the afore-mentioned costs not be included in the offer, they shall be settled in the framework of the maximum fiscal rates for traveling expenses and allowances and shall be assumed by the contractual partner.
(4) Insofar as no concrete term of payment is stated in the invoice all payments are due and payable without deduction no later than on the 14th day after the invoice date. In case the payment date stated in the invoice is not observed or if it is missing after receipt of the reminder interest on default shall be charged in the amount of 8% p.a. – with private persons 5% p.a. – above the base lending rate.
§ 8 Term of the contract and termination
(1) The time stated in the offer or in the contract is decisive for the duration of the contract. Should no certain period of time be envisaged therein, the contractual parties can terminate the contract with a period of notice of six (6) weeks to the end of each calendar quarter. This shall have no effect on the right of both parties to termination without notice for an important reason. In case of dissolution or shutdown of the contractual partner or in the event that an application is filed for judicial or extra-judicial insolvency proceedings over its assets and/or over the assets of its shareholders s+c is entitled to termination without notice for an important reason.
(2) The termination must be made in writing whereby transmission per fax is to be sufficient for safeguarding the form and deadline.
(3) Before commencing the SERVICE s+c can terminate the contract if s+c cannot provide the SERVICE owing to an important reason such as e.g. force majeure. In this case the contractual partner shall immediately receive a corresponding notification. Paid remuneration for SERVICES not yet provided shall be reimbursed by s+c.
(4) s+c is further entitled to cancel the contract without being liable for damages in case of force majeure or with other interfering events which were not foreseeable when the contract was concluded (e.g. interferences to operation of all kinds, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, official measures as well as late self-delivery by suppliers of s+c), for which s+c is not responsible and which make the SERVICES substantially more difficult or impossible insofar as the impediment is not just of a temporary nature. In case of temporary impediments the service dates shall be postponed by the period of the impediment plus a reasonable lead-time.
§ 9 Data entry and data protection
(1) The contractual partner permits s+c to use and save his personal data for the duration of the contractual relationship by observing the applicable provisions under data protection law. Insofar as s+c has to process personal data during the operational support the applicable data protection provisions are to be observed and corresponding measures taken for data protection. s+c shall inform all employees involved in the service about the obligations agreed with the contractual partner.
(2) The contractual partner agrees to receive information material from s+c also after the contractual relationship has ended.
§ 10 Contractual partner’s obligation to provide assistance
(1) Insofar as necessary for providing the SERVICE(S), the contractual partner shall respectively provide assistance in due time, in particular provide the necessary documents and other pre-requisites, make the necessary information available and inform s+c in a text form (in writing, per e-mail or fax) about any circumstances which may be of significance for proper consultancy or processing. If this is not provided in time and/or contrary to the agreements or requirements s+c shall be reimbursed for any additional time or costs incurred. s+c is entitled to provide the SERVICE(S) at a later date or to also charge the additional required time or costs incurred through the delay of the contractual partner with regard to the aforementioned obligation to provide assistance.
(2) Should it be necessary to conduct an on-site analysis within the framework of a maintenance agreement the contractual partner shall grant s+c reasonable access to the systems concerned. Further, he commits himself to make every effort in order to enable a smooth maintenance by s+c and to refrain from doing anything which could make the service more difficult or impossible.
§ 11 Confidentiality
s+c undertakes to treat confidentially all stipulations, data, documents, own or joint development results and other operation-related information reported by the contractual partner – in particular that which is marked as "confidential", and not to reproduce these nor make these accessible to third parties, no matter in which form and manner.
§ 12 Warranty
(1) s+c guarantees that the SERVICES which are provided within the framework of a contract for work and services shall satisfy the agreed functions for a period of twelve (12) months from acceptance of the SERVICES, that the scSoftware functions according to the enclosed manual and that the media upon which the scSoftware or parts thereof are delivered, are free of material and processing faults with the customary use and maintenance.
(2) In case of defects to the SERVICE(S) s+c shall assume warranty to the extent to remedy the defect through subsequent performance. If the subsequent performance fails despite two attempts, the contractual partner is entitled to cancel the contract. s+c is only obliged to subsequent improvement or replacement delivery if the contractual partner on his part has fully satisfied his contractual obligations. Claims for compensation of the contractual partner owing to defects of the SERVICE(S) are excluded.
(3) In case of licensing agreements s+c shall guarantee that the scSoftware functions according to the enclosed manual and that the media upon which the scSoftware or parts thereof are delivered are free of material and processing faults with the customary use and maintenance for a period of twelve (12) months from passing of the risk. The risk shall pass to the contractual partner when the license key is handed over (= date of the licence key).
The warranty of s+c exists in the correction and the replacement of the media which are faulty or, in case this is not possible, in the repayment of the licence fee paid by the contractual partner for a maximum of two (2) months against return of the scSoftware.
(4) s+c assumes no warranty for the fact that all software faults can be corrected and that the functions contained in the scSoftware can be carried out in all combinations selected by the contractual partner or meet his requirements.
(5) The contractual partner shall inform s+c of the defect(s) in writing immediately, no later however than within two (2) weeks after hand-over of the SERVICE(S) or the scSoftware. Defects which cannot be detected within this period of time even with careful examination, are to be reported to s+c in writing immediately after they are discovered.
(6) The warranty shall cease to apply if the failure of the scSoftware or hardware is a result of an accident, improper or faulty use of the SERVICE by the contractual partner or by third parties. The warranty shall further cease to apply with regard to those SERVICES which have been modified or extended by the contractual partner himself, and if the contractual partner does not follow the operating instructions or makes changes to the products.
(7) All warranty claims according to § 11 of these General Business Terms shall become statute-barred within one (1) year from passing of risk or from acceptance unless a longer warranty period is stipulated by law. In this case the longer warranty period which is mandatory by law shall apply.
§ 13 Liability
(1) Insofar as the SERVICES take place on the premises of the contractual partner, the contractual partner is responsible for the equipment of the rooms and the compliance with the safety regulations as well as accident prevention regulations. s+c shall not be liable for objects installed by the contractual partner.
(2) Claims for reimbursement of damages of all kinds, no matter for what legal grounds, including damages as a result of the use of the scSoftware to data, software or hardware of the user are excluded unless s+c or its legal representatives or vicarious agents acted wilfully or grossly negligent or the claims for damages result from the absence of an assumed guarantee. In the latter case the liability is limited to those damages which are covered by the guarantee. The liability is further not excluded in case of an injury to life, body or health for which s+c is responsible.
(3) In case of damages which are due to simple negligence, a liability of s+c shall only exist if essential duties (so-called cardinal duties) were breached when performing under the contract. In this case the liability is limited to the typical and foreseeable damages; the reimbursement of follow-up damages such as missed profits and missed benefits from use is excluded.
(4) The regulations stated under this provision do not apply to claims according to the provisions of the product liability act. Further this shall have no effect on a possible mandatory statutory liability.
(5) s+c assumes no liability for a success intended with the SERVICE or with the licensed scSoftware.
§ 14 Export
Even without any information on the part of s+c the SERVICES as well as the scSoftware may be liable to an export permit. The contractual partner acknowledges German and also overseas export control provisions and restrictions and undertakes not to sell, export or otherwise forward such products or technical information either directly or indirectly to persons, companies or to countries if this infringes German or overseas laws or regulations and if applicable to obtain all necessary export documents at own costs.
§ 15 Offsetting, right of retention and assignment
(1) Offsetting against claims against s+c is excluded, insofar as these have not been declared final and absolut or are undisputed; the same shall apply to the exercising of a right of retention.
(2) No claims, directed against s+c, can be assigned without a written consent and can be exclusively asserted by the contractual partner himself.
§ 16 Written form
All addendums, amendments and collateral agreements are subject to the written form. Verbal collateral agreements are only effective if the form agreement has previously been revoked in writing. Verbal amendments to the contract or collateral agreements do not include any revocation or restriction to the form agreement.
§ 17 Place of performance and place of jurisdiction
(1) Place of performance for all obligation ensuing directly or indirectly from this contractual relationship, including the payment obligation is the respective registered seat of s+c.
(2) Place of jurisdiction – insofar as the contractual partner is a full merchant, legal entity under public law or special assets under public law – is Tübingen. s+c is entitled to file action before a court which has jurisdiction for the registered seat or a branch of the contractual partner.
§ 18 Choice of law
The contractual relations between the parties are subject to German law under the exclusion of the UN law on purchases, even if the company headquarters of the contractual partner are overseas.
§ 19 Severability clause
Should one or several provisions of the contract or these terms and conditions be or become invalid and/or unenforceable this shall have no effect on the validity of the remaining provisions. The invalid or unenforceable clause shall be replaced by a regulation which shall as far as possible satisfy the intended objective of the provision in legal and commercial terms insofar as this does not result in a significant change to the contents of the contract, the same shall apply in case a fact which requires regulation is not expressly regulated.