Terms and conditions
Terms and conditions of contract for the provision and maintenance of application programs and the provision of customer-specific hardware of Schleißheimer GmbH, Nieder-Wöllstadt.
I. Provision of application programs (standard)
§ 1 Delivery of standard programs
The properties of the software products (hereinafter referred to as "Programs") are set out in the respective product description, supplemented by the user documentation. The user documentation may describe properties which the customer has not acquired. Legal regulations or similar mandatory requirements for the programs shall be complied with.
Schleißheimer supplies the customer with the programs in executable form (as object programs) on data carriers or makes them available for download from the Internet. Unless otherwise agreed, Schleißheimer may also send the programs by e-mail. Schleißheimer shall make the user documentation available in electronic or printed form.
Insofar as interfaces to other programs exist in the programs of Schleißheimer, Schleißheimer shall provide the customer with the necessary information about the interfaces upon request against payment of the expenses incurred by Schleißheimer. If required, the customer may disclose this information to other contractors.
Insofar as Schleißheimer has identified programs as products of sub-suppliers in the contract, Schleißheimer shall only be liable for their properties insofar as these are essential for the use of Schleißheimer's application programs. In all other respects Schleißheimer shall neither expressly nor tacitly vouch for the information in the product descriptions of the respective manufacturers.
Schleißheimer does not assume any obligation to remedy defects and provide care for these programs. Schleißheimer will, however, endeavour to remedy serious defects at the manufacturer's, provided the latter is prepared to do so in accordance with its business policy.
The customer shall only be entitled to use these programs together with Schleißheimer's programs.
§ 2 Rights of use of the customer
Schleißheimer grants the customer the right to use the acquired programs to the extent stipulated in the contract, namely for its own purposes and for the purposes of the companies belonging to the customer's group of companies (in accordance with §§ 15 et seq. of the German Stock Corporation Act).
The amount of the transfer fee shall depend on the agreed scope of use. If the customer wishes to change the agreed scope of use, this must be agreed in advance with Schleißheimer and remunerated accordingly.
The customer may only use programs on configurations for which Schleißheimer has released them. The customer shall inform Schleißheimer immediately about the change of a configuration.
The customer may resell the acquired right of use per program to another user if he waives the use of the program and the other party undertakes in writing to Schleißheimer to protect the program and to use the program only to the extent agreed between Schleißheimer and the customer of Schleißheimer.
If Schleißheimer has granted the customer an unlimited right of use, this right of use shall not be transferable.
The customer may change or extend the programs and the associated documents only to the extent that this is possible within the scope of the supplied administrator functions and administrator rights.
§ 3 Implementation
It is the customer's responsibility to install the programs on his IT system. At the customer's request Schleißheimer shall install the programs against remuneration of the expenses incurred by Schleißheimer and carry out a brief introduction. In this case, the customer shall confirm the successful installation in writing.
If it has been agreed that Schleißheimer shall install the programs, the customer shall ensure that Schleißheimer's competent operating personnel is available to the customer at the latest at the time of installation.
Schleißheimer recommends that the customer's employees who are to work with the programs are trained in a Schleißheimer training course.
It is the responsibility of the customer to put the programs into operation. This also includes that the customer checks these under his operating conditions before using them productively. Schleißheimer is prepared to support the customer in this process on request against payment of the expenses incurred by Schleißheimer.
The customer shall immediately examine all services provided by Schleißheimer for freedom from defects, insofar as this is appropriate in the ordinary course of business. This shall also apply to those parts of the programs which the customer uses only occasionally.
Schleißheimer shall designate a customer advisor, the customer a contact person. They may make decisions or bring about decisions without delay. The client advisor shall record decisions in writing. The contact person is available to Schleißheimer for all necessary information. Schleißheimer shall be obliged to involve this contact person insofar as the execution of the contract requires this.
Upon termination of the use of the programs by the customer, for whatever reason, the customer shall be obliged to return the programs including the associated documentation to Schleißheimer and to assure Schleißheimer in writing that the customer has deleted all copies of the programs on its IT systems. The customer has no claim to reimbursement of costs for support services already provided by Schleißheimer.
§ 4 Obligations of the customer to program protection
The customer acknowledges that the programs including user documentation and other documents, also in future versions, are protected by copyright and represent trade secrets of Schleißheimer or the respective manufacturer. The customer shall ensure that the programs are protected against misuse for an unlimited period of time.
If Schleißheimer makes source programs available to the customer, the customer may only make these available to third parties with the prior written consent of Schleißheimer. Schleißheimer may not refuse such consent contrary to good faith. Schleißheimer does not need to give its consent for a third party to take over the maintenance of the programs.
The customer may make copies only for backup purposes, as a replacement or - in the case of the delivery of source programs - for troubleshooting.
The customer is prohibited from creating programs derived from the programs.
The customer may only use the user documentation for internal purposes and may only reproduce it within the scope of his own permissible use. The customer may not translate, modify or extend the user documentation or create derivative works based thereon.
§ 5 Special Conditions for the Rental or Hire Purchase of Programs
If rent or hire purchase is agreed in the contract, the remuneration shall be paid monthly in advance. Schleißheimer shall be entitled and obliged to adjust the monthly remuneration to the extent that Schleißheimer changes the list price for the nursing care in return for a one-off payment. Increases shall be announced three (3) months in advance. The customer may terminate the contract at any time until an increase takes effect.
In all other respects the conditions of §§ 1-4 shall apply. The conditions contained in § 2.4 regarding the resale by the customer and the designation of the customer as the owner (§ 1.3) shall not apply.
The limitation of the limitation period for claims due to defects in accordance with § 17.2 shall not apply. The right to rescind the contract pursuant to § 18.1 shall be replaced by the right to terminate the contract without notice. The contract value pursuant to § 15.2 and § 18.3 shall be the annual rent at the time of the breach of contract.
In the case of rent or hire purchase, the care services are covered by the rent, details are regulated in the contract. In addition, the conditions of §§ 9 to 12 shall apply to care in the case of hire or hire purchase.
II. Customer-specific programming
§ 6 Subject
Schleißheimer grants the customer the same right of use for modifications and extensions as for the standard programs to which they belong.
Modifications shall only be supplied in executable form. Insofar as this is expressly agreed in the contract, extensions and other additional programs shall also be supplied in source code, but without technical system documentation, unless this has been expressly commissioned.
User documentation shall only be supplied if this has been expressly agreed. In the latter case, the following shall apply: If modifications/extensions have an effect on the user documentation of the standard programs, these shall not be integrated in them but shall be presented separately.
§ 7 Implementation
Insofar as it is necessary to detail the customer's requirements stipulated in the contract or required in accordance with § 8.1, Schleißheimer shall do so with the support of the customer, draw up a detailed concept and submit it to the customer for approval. The customer shall submit his comments in writing within 14 days. Unless otherwise agreed, this service shall be remunerated on a time and material basis.
The approved detailed concept is a binding specification for the programming owed. If necessary Schleißheimer will refine it in the course of the programming in coordination with the customer.
Otherwise, § 3 shall apply accordingly.
§ 8 Changes to the requirements
If the customer wishes to change his requirements (which includes extensions), Schleißheimer is obliged to agree to this insofar as this is reasonable for Schleißheimer. Insofar as a request for change has an effect on the contract, Schleißheimer may demand an appropriate adjustment of the contract, in particular an increase in the remuneration and/or a postponement of the deadlines.
Agreements on changes to the requirements must be made in writing. If the customer orally declares a change request, Schleißheimer may demand that the customer formulate this in writing or confirm it in writing. In the second case, Schleißheimer's formulation shall be binding if the customer does not object to it immediately.
Schleißheimer shall immediately assert claims according to § 8.1. The customer shall immediately object if he does not agree with such claims of Schleißheimer.
III. Program maintenance
§ 9 Subject
If care is agreed in the contract, Schleißheimer shall provide the transmission of further developed versions of the standard programs, the elimination of program errors and telephone support during Schleißheimer's normal business hours against a lump-sum payment as care services.
Maintenance is provided from the installation of the programs.
The amount of the maintenance lump sum shall be agreed in the contract. All other services shall be remunerated separately, in particular the installation of further developed versions by Schleißheimer, the transfer of customer-specific modifications into further developed standard versions by Schleißheimer, as well as the adaptation of customer-specific programming to further developed standard versions by Schleißheimer.
The care agreement runs for an indefinite period of time. It may be terminated by either contractual partner with three (3) months' notice to the end of a care year.
Schleißheimer shall terminate nursing care before the end of the third nursing year only for good cause. Schleißheimer shall be entitled to terminate the contract prior to this date for objective reasons, in particular if the maintenance of system software or other software required for Schleißheimer's programs is restricted by its suppliers.
§ 10 Troubleshooting
Program errors are defined as deviations from the properties which Schleißheimer specifies for the programs to have for the current version or for their normal use.
The obligation to eliminate errors and to provide telephone support refers to the latest released standard version of the programs. It ends for the previous version six (6) months after release of the newest version. However, the obligation to eliminate errors shall continue as long as it is unreasonable for the customer to accept the latest released version, but only to the extent that Schleißheimer is in a position to provide these services. In this case Schleißheimer shall be entitled to remuneration of the additional expenditure incurred by Schleißheimer and the additional costs including those incurred for the provision of the maintenance environment required for the maintenance of the old version.
§ 17 shall apply mutatis mutandis to the performance of troubleshooting.
§ 11 Further development of the standard programs to be maintained
Schleißheimer shall make available to the customer further developed standard versions including the documentation belonging to these according to § 1.2 after their release by Schleißheimer. This shall not apply to extensions which Schleißheimer offers separately as new programs in Schleißheimer's price list.
The customer shall test further developed versions before using them productively.
11.2 If a manufacturer who releases a further developed version of the system software required for the use of the programs releases system software necessary for the use of the programs, and if this manufacturer has concluded a maintenance agreement with Schleißheimer for the maintenance of this system software, Schleißheimer shall, after the availability of the further developed version for Schleißheimer, check whether this version cooperates properly with the standard programs for which the customer has concluded a maintenance agreement with Schleißheimer. If this is the case, Schleißheimer will release Schleißheimer's programs for use with the further developed version of the system software (cf. § 2.3). Otherwise Schleißheimer shall adapt the standard programs to be maintained for the customer to the further developed version of the system software within a reasonable period of time. The reasonable period begins with the availability of the further developed version of the system software for Schleißheimer.
For system software for which the manufacturer does not offer new versions under maintenance contracts with customers but from time to time offers new generations for sale, the following shall apply: If the manufacturer provides improvements (e.g. service packs) Schleißheimer shall proceed in accordance with § 11.2.
If the manufacturer offers a new generation of the system software, Schleißheimer will examine whether Schleißheimer adapts its own programs to this new generation, taking due account of the interests of all users. If Schleißheimer adapts its own programs to the new generation, Schleißheimer only has to further develop the programs on this basis.
The customer shall ensure that its IT system, in particular its system software, has the state of the art required by the programs to be maintained within the framework of further development pursuant to § 11.2 and § 11.3. Schleißheimer shall inform the customer in each case at an early stage from when which technical status is required for the maintenance services.
The customer may only introduce a new version of the system software after Schleißheimer has released the programs for this (cf. § 2.3).
The customer shall inform Schleißheimer in advance if he wishes to install a new version of the required system software.
§ 11.2 to 11.4 shall apply mutatis mutandis to other third-party programs with which Schleißheimer's programs are to interact. § 11.3 and 11.4 shall also apply to third-party programs which are freeware or which are in the public domain (e.g. Linux).
Schleißheimer undertakes to further develop the current version if this is required by changes to statutory regulations or other regulations applicable to the programs.
The maintenance lump sum does not cover the inclusion of changes pursuant to § 11.2 to § 11.6, which can only be implemented through partial or complete reprogramming of the affected programs, nor the inclusion of new statutory provisions or other provisions applicable to the programs. In such cases Schleißheimer may demand payment of an appropriate additional fee for the new version taking into account the interests of all users who require and commission the reprogramming.
Schleißheimer shall keep further developed versions compatible with the previous version insofar as this concerns Schleißheimer's own share in the further developed version. If circumstances for which Schleißheimer is not responsible cause the incompatibility, in particular if a sub-supplier of Schleißheimer changes its programs and if this change causes the incompatibility, Schleißheimer need only pass on to the customer the conversion aids provided by the sub-supplier.
§ 12 Care remuneration
The maintenance fee shall be calculated according to the agreed scope of use (see § 2.1). It will be adjusted as soon as it increases.
The maintenance fee shall be paid by the customer in advance on the basis of the contract.
Schleißheimer shall be entitled, with effect from the next calendar year, to demand the remuneration which Schleißheimer demands when concluding new contracts according to Schleißheimer's price list. Price increases require a notice period of three (3) months. Schleißheimer shall pass on price reductions without notice.
§ 13 Maintenance of customer-specific programming
As long as a care agreement exists for standard programs, Schleißheimer shall also maintain the associated modifications/extensions and individual programs against payment according to expenditure. Troubleshooting shall take place free of charge during the warranty period.
If maintenance is agreed for customer-specific programming against a lump-sum payment, the following shall apply: The maintenance services shall be provided as for standard programs. The lump sum also covers the transfer of modifications/extensions to further developed versions of the standard programs and, if necessary, the adaptation of additional programs to further developed versions. The maintenance can be terminated by the customer with a notice period of three (3) months to the end of a maintenance year within the meaning of § 9.3 independently of the maintenance for the standard programs.
IV. Customer-specific hardware
§ 14 Delivery of customer-specific hardware
The properties of the customer-specific hardware are derived from the respective description in the functional specification or specifications, supplemented by the descriptions and user documentation of the components used. Legal regulations or similar mandatory requirements for the programs are complied with.
Insofar as interfaces to other programs exist in the customer-specific hardware of Schleißheimer, Schleißheimer shall provide the customer with the necessary information about the interfaces on request against payment of the expenses incurred by Schleißheimer. If required, the customer may disclose this information to other contractors.
The customer-specific hardware shall be deemed to be in accordance with the agreement if it corresponds to the specifications laid down in the functional specification or other written specifications and moves within the framework of customary market tolerances.
Insofar as Schleißheimer has identified hardware in the contract as components of sub-suppliers, Schleißheimer shall only be responsible for their properties to the extent that these are essential for the use of Schleißheimer's customer-specific hardware. Otherwise Schleißheimer does not vouch for the information in the product descriptions of the respective manufacturers.
Schleißheimer does not assume any obligation to remedy defects and provide care for these components. Schleißheimer will, however, endeavour to remedy serious defects at the manufacturer's, provided the latter is prepared to do so in accordance with its business policy.
The customer shall only be entitled to use these components within the scope of the customer-specific hardware supplied by Schleißheimer.
§ 15 Rights of use of the customer
Schleißheimer grants the customer the right to use the acquired customer-specific hardware to the extent specified in the contract, namely for its own purposes and for the purposes of the company belonging to the customer's group of companies (in accordance with §§ 15 et seq. of the German Stock Corporation Act).
The customer may only use customer-specific hardware in environments for which Schleißheimer has released it. The customer shall inform Schleißheimer immediately about the change of an environment.
The customer may resell the acquired right of use for each customer-specific hardware to another user if he obliges the other user in writing to protect all rights of Schleißheimer and to use the customer-specific hardware only to the same extent as was agreed between Schleißheimer and the customer of Schleißheimer.
If Schleißheimer has granted the customer an unlimited right of use, this right of use shall not be transferable.
The customer may neither modify nor extend the customer-specific hardware and the associated documents.
§ 16 Implementation
Schleißheimer shall dispatch the customer-specific hardware from its place of business at the risk of the customer irrespective of whether it is a collective order, whether carriage-free delivery has been agreed or Schleißheimer itself assumes carriage. The risk shall pass to the customer when the customer-specific hardware is handed over to the transport representative of the customer.
In the event that shipment is delayed due to circumstances for which Schleißheimer is not responsible, the customer-specific hardware shall be stored at the risk and expense of the customer after notification of readiness for shipment.
It is the customer's responsibility to put the customer-specific hardware into operation. This also includes that the customer checks these after receipt under his conditions of use before using them productively. Obvious, recognizable defects must be reported to Schleißheimer in writing within a period of eight days after receipt. Complaints due to damage shall only be considered if the customer has had the condition of the customer-specific hardware checked by the commissioned carrier or his own employee prior to acceptance. The customer must notify Schleißheimer in writing of any damage and defects that were not externally recognizable immediately after discovery and within eight days at the latest.
Schleißheimer is prepared to support the customer also in this respect on request against payment of the expenses incurred by Schleißheimer.
Schleißheimer shall designate a customer advisor, the customer a contact person. They may make decisions or bring about decisions without delay. The client advisor shall record decisions in writing. The contact person shall be available to Schleißheimer for all necessary information. Schleißheimer shall be obliged to involve this contact person insofar as the execution of the contract requires this.
§ 17 Obligations of the customer to protect customer-specific hardware
The customer acknowledges that customer-specific hardware including user documentation and other technical documents, also in future versions, is protected by copyright and constitutes trade secrets of Schleißheimer or the respective manufacturer. The customer shall ensure that the systems are protected against improper use for an unlimited period of time.
The customer is prohibited from creating hardware derived from the customer-specific hardware. The customer may only use the user documentation for internal purposes and may only reproduce it within the scope of his own permissible use. The customer may not translate, modify or extend the user documentation or create derivative works based thereon.
IV. General regulations
§ 18 Remuneration, payments
The transfer fee shall become due after delivery has taken place. The delivery period shall commence on the date of the order confirmation.
All support services (in particular application preparation, installation and demonstration of operational readiness, conversion of old data, instruction, training or consulting) shall be remunerated on a time and material basis, unless otherwise agreed. Hourly rates, travel expenses and incidental costs shall be based on the rates agreed in the contract. Schleißheimer can invoice monthly.
Payments shall be made within 30 days of receipt of invoice without deduction.
All prices are exclusive of statutory value added tax.
The customer's right to use the programs or the customer-specific hardware shall be suspended if the customer is in default of payment.
§ 19 Disturbances in the provision of services, default
Insofar as a cause for which Schleißheimer is not responsible, including strike or lockout, impairs compliance with the deadline, Schleißheimer may demand an appropriate postponement of the deadlines. If the expenditure increases due to a cause within the area of responsibility of the customer, Schleißheimer may also demand the remuneration of the additional expenditure incurred by Schleißheimer.
If Schleißheimer is more than 30 days in default, the customer may demand a contractual penalty of 0.5% of the value of those services or delivery items which cannot be used for their intended purpose for each additional week from this point in time, but not more than 5% of the order value or purchase price. In the event of delay in delivery of a further developed version within the scope of maintenance (§ 8), the then owed annual maintenance lump sum shall be recognised as the order value.
§ 20 Remote support
Upon request, the customer shall enable Schleißheimer to provide remote support (remote diagnosis and correction, transfer of new versions) as far as this is technically feasible. In agreement with Schleißheimer, the customer will provide a connection to the telecommunications network at the customer's expense so that the systems of both sides can be coupled with each other. Unless otherwise agreed, the customer shall bear the line costs incurred.
Schleißheimer shall log on to the customer's system by means of a user profile/password controlled by the customer. For reasons of data protection, the customer releases the line. Schleißheimer shall inform the customer of the measures taken.
If the customer does not enable remote support, he shall reimburse Schleißheimer for the additional expenditure caused thereby, in any case travel times and additional costs for the removal of defects or errors.
If data is transferred to Schleißheimer for the purpose of troubleshooting or restoration, Schleißheimer shall comply with all technical and organizational measures in its own area which the customer is obliged to take pursuant to § 9 of the Federal Data Protection Act. Details shall be agreed separately at the customer's request.
§ 21 Agreements for the rectification of defects
If defects occur during the contractual use of the programs or customer-specific hardware, the customer must report these in a comprehensible form, stating the information useful for defect recognition, in writing at Schleißheimer's request.
The prerequisite for all claims for programs against Schleißheimer is that the defect is reproducible or can be demonstrated by machine-generated output. Requirements for all claims for customer-specific hardware must be agreed in writing in the specifications.
The customer shall support Schleißheimer within reasonable limits in remedying defects, in particular at Schleißheimer's request to send the program as it was used when the defect occurred and to make machine time available as well as to import corrective measures or replacement deliveries which Schleißheimer makes available.
Schleißheimer shall remedy defects both in programs and in customer-specific hardware at its own discretion by remedying the defect, by replacement or by replacement delivery (hereinafter referred to collectively as "subsequent performance"). Schleißheimer shall provide subsequent performance within a reasonable period of time.
In the case of defects which seriously impair the contractual use of a program or customer-specific hardware, Schleißheimer shall, if necessary, provide a workaround solution before the final subsequent performance, so that the defect no longer has a serious effect.
Schleißheimer only needs to remedy defects which do not seriously impair the contractual use of a program at the point in time at which Schleißheimer plans the appropriate version maintenance. Schleißheimer will also provide circumvention solutions for such defects, as far as this is reasonable for Schleißheimer.
In the case of programs which are expressly marked as such by sub-suppliers, Schleißheimer can and must fulfil the obligation of subsequent performance and/or the provision of workarounds in accordance with the preceding paragraphs only to the extent that this is possible and reasonable for Schleißheimer. In the event that subsequent performance and/or the provision of circumventing solutions is not possible and/or reasonable for Schleißheimer, Schleißheimer shall endeavour to remedy defects and/or provide circumventing solutions with its upstream supplier.
The warranty claim shall lapse if the defect has arisen because the customer or his customer has used the customer-specific hardware for unsuitable purposes or otherwise treated it improperly. The same shall apply in the event that the subject matter of the contract has been modified or repaired by third parties without Schleißheimer's consent.
The obligation to subsequent performance expires for such programs and customer-specific hardware which the customer changes or otherwise interferes with, unless the customer proves that the interruption is not the cause of the defect.
Schleißheimer may demand payment of the expenses incurred by Schleißheimer beyond the telephone support within the scope of care pursuant to § 9.1 in accordance with the price list for support services of Schleißheimer, if Schleißheimer has acted beyond the telephone support pursuant to § 9.1 due to the notification of a defect by the customer at the customer's request and if the customer has not been able to prove the existence of a defect.
§ 22 Liability of Schleißheimer
If Schleißheimer is in default with performance (by delivery) or subsequent performance (by removal of defects, replacement or replacement delivery), the customer may set a reasonable deadline for performance/retrospective performance. If the period expires without success or if the performance/subsequent performance finally fails, the customer may assert his statutory claims, damages within the scope of § 22.3. Schleißheimer may set the customer a reasonable deadline for declaring whether the customer still demands performance/subsequent performance. After the unsuccessful expiry of this declaration period, the customer's claim to performance/subsequent performance shall be excluded.
The limitation period for claims due to defects ("warranty period") shall be twelve (12) months. The extension of the scope of use (§ 2.2, 2.1) or the delivery of a further developed version within the scope of maintenance (§ 11) shall not lead to a new limitation period.
Claims for damages - for whatever legal reason - against Schleißheimer (including its vicarious agents) which presuppose slight negligence shall only exist if an essential contractual obligation/cardinal obligation has been breached.
In this case, claims for damages shall be limited to the higher of the following values:
- EUR 50,000.00,
- the order value,
- the typical and foreseeable damage.
In the case of claims for damages on the basis of the care agreement, the annual care lump sum in the year in which the damage occurred shall replace the order value.
The customer may demand further liability against payment of a risk surcharge.
The restrictions shall not apply insofar as the damage is covered by Schleißheimer's business liability insurance, provided that the insurer has paid to Schleißheimer. Schleißheimer undertakes to maintain the cover existing at the time of conclusion of the contract.
Claims based on bodily injury as well as claims based on the Product Liability Act shall remain unaffected.
The provisions of §§ 22.1 to 22.3 shall apply mutatis mutandis to the case of the free provision of goods and services by Schleißheimer.
§ 23 Confidentiality
Schleißheimer undertakes to use all knowledge of trade secrets acquired within the scope of the contractual relationship and of information designated as confidential in writing only for the execution of the contract and to treat it as confidential for an unlimited period of time. The obligation to treat as confidential shall not apply to (i) data which Schleißheimer was already aware of at the time the contract was concluded, (ii) data which Schleißheimer independently compiled and (iii) data which were or become known outside the contract.
Schleißheimer shall not be obliged to keep secret Schleißheimer's ideas, concepts, know-how and techniques with regard to program creation; § 23.1 shall remain unaffected.
Schleißheimer obliges its employees to maintain confidentiality.
Schleißheimer may include the name of the customer and a brief description of the service rendered in a reference list. All other advertising references to the customer shall be agreed with the customer in advance.
§ 24 Final provisions
The contract and its amendments must be made in writing.
German law shall apply to the exclusion of conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
The place of jurisdiction in relation to merchants shall be the registered office of Schleißheimer.