Note: This contract has been translated for your convenience by google translate. The legally binding version is currently the german one. We are reworking our contract framework and will update this page with a binding english verion soon.
Terms and conditions for individual services on provided or supplied software
1. Validity of the terms and conditions of New Solutions GmbH
1.1. These conditions only apply to contracts with customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB). They include all current and future contracts between the company and the customer, which primarily concern the adaptation or further development of provided or supplied software.
1.2. If the software is provided by us, these conditions only apply if the predominant and determining part of the service is about individual adaptation or further development. If the software supplied by the company is only installed and made ready for operation through settings to be made, our delivery conditions for software without individual adaptation apply.
1.3. General terms and conditions of the customer are expressly not part of the contract, even if they are not expressly contradicted by the company.
2. Conclusion of contract and terms of payment
2.1. All offers are non-binding. A contract with the company is only concluded when the company confirms the customer’s order in writing.
2.2. All prices are exclusive of the respective statutory value added tax. All company invoices are due for payment immediately upon receipt. Any information on the invoice of a payment term is non-binding and does not postpone the due date. However, the customer will not be in default by a possible payment reminder before the specified payment term has expired.
2.3. If the fulfillment of the payment claim is endangered due to a deterioration in the customer’s financial situation that has occurred or has become known after the conclusion of the contract, the company can demand advance payment and immediate payment of all outstanding, deferred or not yet due claims. In these cases, the company can withhold software that has already been ordered but not yet delivered until payment has been made, as well as stop working on ongoing orders from the business relationship. The company is also entitled to these rights if the customer does not make any payment despite a reminder giving reasons for default.
2.4. The customer can only assign his rights from a business relationship with the company with the company’s written consent. Offsetting is only possible with recognized or legally established counterclaims.
3. Delivery and dispatch
3.1. All delivery dates specified by the company are non-binding delivery dates, unless a delivery date is expressly promised as binding by the management or a person authorized in writing. If the customer requests changes or additions to the order after the order has been placed, or if other circumstances arise that make it impossible for the company to meet the delivery date, although the company is not responsible for these circumstances, the delivery date will be postponed by a reasonable period of time.
3.2. The company is entitled to make partial deliveries. If the non-compliance with a binding delivery date can be proven to be due to mobilization, war, riot, strike or lockout or to other circumstances for which the company is not responsible according to general legal principles, the delivery period will be extended appropriately. The customer can withdraw from the contract if he gives the company a reasonable grace period after the extended period has expired. The withdrawal must be made in writing.
3.3. The costs for shipping and transport insurance are generally to be borne by the customer, whereby the choice of the shipping route and the shipping method is at the discretion of the company. The risk passes to the customer as soon as the goods are handed over to the carrier. The customer is obliged to examine the goods as soon as they arrive and to notify the company immediately in writing of any visible transport damage and any damage to the packaging. If the company loses its claims against the insurance company or the transporter due to the failure to comply with this obligation, the customer is liable for all costs resulting from this breach of obligation.
4. Usage Rights
4.1. The company grants the customer a non-exclusive right to use the software along with its documentation, and an exclusive right to use the individual part. The right of use only relates to the software version specified in the order confirmation in the object code, along with the individual adaptation configurations. The customer may only reproduce or copy the software within the framework of the contractual use or if backup copies are required. The written consent of the company is required for the reproduction or copying of the documentation or the source code. In the case of full or partial reproduction or copying, the customer must attach the copyright notice and all other references to property rights in the same way as on the original version of the software. This also applies to the data carriers. The customer may only convert back or convert to another form of expression if this is indispensable due to a legal regulation.
4.3. Upon request by the company, the customer is obliged to inform the company at which location the software is being used, the number of copies made and which employees or agents in accordance with Section 4.2. use the software.
5. Reservation of ownership and rights of use
5.1. The company reserves the right to own the data carriers and all rights of use to the software and documentation until all claims from the delivery have been paid in full.
5.2. The customer is not authorized to dispose of the data carriers subject to retention of title or to transfer the rights of use. In the event of seizure or confiscation, the customer must inform the company immediately in writing and immediately notify third parties of the company’s retention of title in a suitable form.
5.3. In the event of default in payment by the customer, the company is entitled to withdraw from the contract and reclaim the software and to stop using the software after prior notification, provided this is not dispensable according to the statutory provisions. Further claims of the company, in particular claims for damages in addition to the withdrawal, remain unaffected. The customer is obliged to hand over the original version and to hand over or destroy all copies.
6. Elimination of defects
6.1. The company guarantees for a period of 12 months from the day the software is put into operation (test runs not included) that the software supplied by the company is free from material and programming errors and works in accordance with any accompanying product manual. The shortening of the statutory warranty period does not apply in the event that the company or one of its vicarious agents has fraudulently concealed the error.
6.2. The customer is aware that software products are subject to constant further development and that program errors can occur. Program errors do not constitute a defect in the software if they cannot be traced back to a programming error at the time the software was handed over or to a defective data carrier belonging to the company.
6.3. If errors occur during the installation or program operation during the defect period, the company must be informed immediately. Upon receipt of the notification, the latter will investigate the fault immediately and, in the event of a justified complaint, provide a replacement delivery or a subsequent improvement. For the purpose of supplementary performance, the customer must give the company all necessary information about the previous program use and operation and enable it to access the program, on site or via the Internet. Due to the complexity of the software programming, depending on the nature of the defect, the company must be given several, but at least two attempts at subsequent performance. The supplementary performance is only considered to have failed if the software does not work successfully due to the defect despite the attempts at supplementary performance and after the expiry of a reasonable deadline for supplementary performance set by the customer.
6.4. Any further guarantee, in particular that the software is suitable for the purposes of the customer that goes beyond the product description, is expressly excluded, unless the management or a person authorized in writing has expressly assured the special use or the company or one of their vicarious agents has fraudulently concealed the error.
6.5. The delivery of operating instructions in English is generally permitted, unless the subject of the contract has already been fully developed for the respective market.
7. Limitation of Liability
7.1. In cases of injury to life, body or health and in accordance with the Product Liability Act, as well as if we or our vicarious agents or representatives have deliberately violated an obligation, we are liable without limitation in accordance with the statutory provisions.
7.2. In all other cases, our liability is limited to the foreseeable damage typical for the contract. Insofar as we, our vicarious agents or representatives can only be accused of slightly negligent breach of duty, we are only liable for the foreseeable damage typical of the contract in the event of a breach of essential contractual obligations.
7.3. Liability for damage caused by the delivery item to other legal interests of the customer, e.g. damage to other items, is completely excluded, unless section 7.1 applies. or we, our vicarious agents or representatives can be accused of gross negligence.
7.4. In the event of a claim against the company due to liability for defects according to Section 6.1 or due to a breach of duty according to Sections 7.1 to 7.3, contributory negligence on the part of the customer must be reasonably taken into account, especially in the case of insufficient error messages or insufficient data backup. Inadequate data backup occurs in particular if the customer has failed to take precautions against external influences, in particular against computer viruses and other phenomena that can endanger individual data or an entire database, through appropriate, state-of-the-art security measures.
7.5. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
The company and the customer mutually undertake to keep all business and trade secrets of the other party secret for an unlimited period and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information that the other contractual partner receives as a result of the business relationship may only be used within the framework of the respective contractual purpose.
9. Place of fulfillment and jurisdiction
If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our company headquarters (main branch in Burghausen) are agreed as the place of performance and jurisdiction for all disputes arising from the contractual relationship. We are entitled to sue at the customer’s headquarters.
10. Property Rights
Without the express approval of the company, the customer is not permitted to export the goods purchased from the company to countries outside the EU. In addition, the customer must observe all relevant export regulations, in particular those under the Foreign Trade Regulations and, if applicable, regulations under US law.
11.1. German law applies exclusively to the exclusion of the UN sales law.
11.2. Should individual provisions of these general terms and conditions be or become ineffective in whole or in part, this shall not affect the validity of the remaining provisions.
11.3. Ancillary agreements and subsequent additions to the contract can only be made with the management or a person authorized in writing.
New Solutions GmbH
Business Center Burghausen
Marktler Strasse 61
84489 Burghausen, Germany
District court: Altötting, Germany
District court: Traunstein, Germany
Register court: Traunstein, Germany