§ 1 Subject of the contract
The subject of the contract is the transfer of software programs by FeRox Management Consulting GmbH & Co. KG (FeRox) to the buyer. The designation of the provided Software, its scope and configuration as well as the fee to be paid is determined by the license granted to the Buyer. Details in brochures, on websites and other advertising material are only non-binding information about the quality of the Software.
Software programs in the above sense are data processing programs stored on data carriers. The application description also belongs to the software programs. For the application description it is sufficient if it is stored on data carriers or can be accessed online via the FeRox website.
The offers of FeRox are directed exclusively to entrepreneurs in the sense of § 14 of the German Civil Code and thus to natural or legal persons or partnerships with legal capacity, which act in exercise of their commercial or independent activity when concluding a legal transaction, further to legal persons under public law as well as to special funds under public law.
§ 2 Conclusion of contract
These general terms and conditions apply to all contracts concluded between FeRox and the Buyer as well as to all other agreements made in the course of the business relationship.
FeRox will be bound by an offer for a period of 14 days from the date of issue.
All agreements, in particular changes, additions or concretisations, as well as special assurances and arrangements, must be made in writing. If such agreements are made by FeRox\'s representatives or agents, they are only binding if FeRox gives its written consent. The written form requirement also applies to the cancellation of this written form clause.
FeRox reserves the right to make the conclusion of the agreement dependent on an advance payment, deposit or security.
§ 3 Scope of delivery and delivery time
The written order confirmation of FeRox is decisive for the scope of delivery. FeRox is also entitled to make partial deliveries.
Delivery dates stated by FeRox are not binding, unless a delivery date is expressly agreed in writing as binding.
Delivery dates quoted by FeRox shall not be binding unless a delivery date is expressly agreed in writing to be binding; the date on which FeRox hands over the Software and application documentation to the carrier in the case of physical shipment and the date on which the Software and application documentation is made available on the network and FeRox notifies the Buyer thereof shall be decisive for compliance with delivery dates and transfer of risk.
As long as FeRox is hindered in its services by strikes or lock-outs in third party companies or in its own company - in the latter case only if the industrial action is legal - or by official intervention or legal prohibitions or other circumstances beyond its control ("force majeure"), delivery and service periods are considered extended by the duration of the hindrance and by a reasonable start-up period after the end of the hindrance and there is no breach of duty for the duration of the hindrance and the start-up period.
§ 4 Terms of payment and prices
All prices are ex warehouse Passau. The prices stated in the order confirmation apply. All prices are exclusive of the legally prescribed value added tax.
In the case of physical shipment, the prices include the costs for normal packaging. If the buyer demands a special type of packaging, the additional costs shall be borne by the buyer. The packaging costs for the delivery of spare parts, accessories and consumables will be invoiced separately. The buyer shall bear all transport costs ex warehouse Passau.
If the Software is made available for retrieval via a network, FeRox shall bear the costs for making the Software available for retrieval via the network. The Buyer shall bear the costs for the retrieval.
Any taxes, customs duties, fees, import and export duties incurred shall be borne by the purchaser.
The installation of the software by FeRox as well as the instruction of operating personnel is at the expense of the Buyer and on the basis of separate agreements.
FeRox does not accept payment by cheque or bill of exchange.
FeRox is entitled to withhold further deliveries and services if the Buyer is in default of payment.
The buyer is entitled to have freight insurance taken out at his own expense.
§ 5 Transfer of use
FeRox grants Buyer a perpetual, non-exclusive right to use the Software Programs designated in the License under applicable copyright laws. The scope of the use permitted in each individual case, in particular the scope of use of the provided Software or individual components within a network or other multi-station computer system, shall be determined by the respective license agreement.
The buyer may use the software on any hardware available to him. However, if the buyer changes the hardware, he must delete the software from the hardware previously used. Unless otherwise agreed by the parties, any simultaneous storage, retention or use on more than one piece of hardware is not permitted. Similarly, the use of the provided software within a network or any other multi-station computer system is not permitted if this creates the possibility of simultaneous multiple use of the program.
With the exception of the expressly granted rights of use, all present and future rights to the Software Program, of whatever nature, remain with FeRox. The same applies to the Buyer\'s documentation, whether on data carriers or embodied in later copies.
§ 6 Reproduction rights and access protection
The buyer is entitled to duplicate the delivered program as far as this is necessary to use the program. A necessary duplication is the installation of the program from the original data carrier to the mass memory of the hardware used, as well as loading the program into the working memory.
The buyer is also entitled to copy the program for backup purposes. In principle, only one single backup copy may be made and stored. This backup copy must be clearly marked as such.
Furthermore, the buyer is entitled to make backup copies in the number absolutely necessary, insofar as a regular backup of the entire data stock including the computer programs is indispensable for reasons of data security or to ensure a quick reactivation of the computer system after a total breakdown. The data carriers used for this purpose shall be clearly marked. The data carriers may only be used for purely archival purposes. The buyer is not entitled to make further copies of the software programs provided, in particular also to output the program code on a printer.
The buyer is obliged to prevent unauthorised access to the program and the documentation by third parties by taking suitable precautions. The original data carriers made available to him as well as the backup copies must be kept in a place secured against unauthorized access by third parties. The buyer is obliged to expressly inform his employees of the compliance with these contractual conditions as well as the provisions of copyright law.
§ 7 Decompilation and program changes
The buyer is entitled to retranslate the program code provided to him into other code forms for his own use for the purpose of eliminating errors or extending the range of functions. He is also entitled to reconstruct the various production stages of the software in any other way. This also includes the right to make changes to the program. For the purposes of this provision, own use in particular includes the private use of the purchaser. In addition, own use shall include use for professional or commercial purposes, provided that it is limited to the Buyer\'s own use by the Buyer or his employees. Any commercial exploitation to the outside is not permitted.
The buyer is entitled to remove a copy protection or similar protection routines, provided that this protection impairs or prevents trouble-free use. The buyer bears the burden of proof for these requirements. The Buyer may only leave these actions to a commercially operating third party that is in a potential competitive relationship with FeRox, if FeRox does not want to carry out the desired program changes itself for an appropriate fee. The Buyer shall grant FeRox a reasonable period of time to review the acceptance of the order and shall inform FeRox of the name of the third party.
The buyer shall only be entitled to perform the aforementioned actions for commercial reasons if they are indispensable to create, maintain or make operational an independently created interoperable program. In this case it is also a condition that the necessary information has not yet been published, can be provided by FeRox or is otherwise accessible.
Copyright notices, serial number or other features serving to identify the program may under no circumstances be removed or changed.
§ 8 Resale and subleasing
The buyer is entitled to sell or give away the software including the accompanying material made available to him for this purpose on a permanent basis to third parties, provided that the acquiring third party agrees to the continued validity of these contractual terms and conditions, also towards the buyer. In the event of a transfer, the purchaser must hand over to the third party all copies of the program, including existing backup copies, or destroy the copies not handed over. The buyer loses his right to use the program with the transfer.
The buyer is not entitled to transfer the software to third parties if there is a justified suspicion that the latter will violate the terms of the contract, in particular by making unauthorized copies. This prohibition shall also apply with regard to employees of the Buyer.
§ 9 Warranty
For the quality of the software delivered by FeRox, the performance specification valid at the time of shipment of the subject matter of the agreement and available to the Buyer before conclusion of the agreement is conclusively decisive. FeRox does not owe any further quality of the Software. In particular, Buyer cannot derive such an obligation from other representations of the Software in public statements or in advertising of FeRox, its employees or its distributors.
Where FeRox employees provide warranties prior to entering into the Agreement, such warranties shall be effective only if confirmed in writing by the management of FeRox.
FeRox warrants according to the rules of the law of purchase for the agreed quality of the subjects of the contract according to § 1 No. 1 and 2 and for the fact that the use of the subjects of the contract within the contractual scope by the Buyer does not conflict with any rights of third parties. However, the warranty that the subject matter of the Contract is free from third party rights shall only apply to the country of destination agreed between the Parties in which the subject matter of the Contract is to be used. In the absence of an express agreement, the warranty shall apply to the country in which the Buyer has its registered office.
The Buyer is obliged to provide FeRox with all data and information necessary to investigate the defect and, if necessary, to provide the licensed software for investigation. The Buyer shall bear the transport costs incurred for this.
FeRox first provides warranty for material defects by subsequent performance. For this purpose FeRox shall, at its option, provide the Buyer with a new, defect-free software version or remedy the defect. The removal of the defect is also considered to be the removal of the defect if FeRox shows the Buyer reasonable possibilities to avoid the effects of the defect.
In case of defects of title FeRox first provides warranty by supplementary performance. For this purpose, FeRox shall, at its option, provide the Buyer with a legally unobjectionable possibility to use the delivered subject matter of the Agreement or exchanged or modified equivalent subject matter of the Agreement.
FeRox is entitled to make the supplementary performance dependent on the Buyer having paid at least a reasonable part of the remuneration.
The buyer is obliged to take over a new software version if the contractual scope of functions is maintained and the takeover does not lead to significant disadvantages.
If two attempts at subsequent performance fail, the purchaser shall be entitled to set a reasonable period of grace to remedy the defect. In doing so, he must expressly point out that he reserves the right to withdraw from the contract if it fails again and/or to claim damages.
If the rectification of defects also fails within the period of grace, the purchaser may withdraw from the contract or reduce the remuneration, unless there is an insignificant defect. FeRox shall pay damages or compensation for futile expenses due to a defect within the limits set out in § 10. FeRox may, upon expiration of a time limit set in accordance with the first sentence above, demand that Buyer exercises its rights resulting from the expiration of the time limit within two weeks after receipt of the demand. After the expiration of this period the right to choose passes to FeRox.
If FeRox provides services in the event of troubleshooting or removal of defects without being obliged to do so, FeRox may demand compensation for this in accordance with its usual rates. This applies in particular if a defect cannot be proven or is not attributable to FeRox. In addition, FeRox shall be reimbursed for any additional expenses incurred by FeRox due to Buyer\'s failure to properly perform its obligations under § 9 clause 4.
In the event that a third party asserts claims that prevent the Buyer from exercising the rights of use granted to it under the contract, the Buyer shall immediately and fully notify FeRox. Buyer hereby authorizes FeRox to handle the dispute with the third party in and out of court on its own.
FeRox is obliged to defend the claims at its own expense and to indemnify the Buyer from all costs and damages associated with the defence against the claims, unless they are based on the Buyer\'s conduct in breach of its duties.
The Buyer may only derive rights from other breaches of obligations by FeRox if the Buyer has notified FeRox of such breaches and granted FeRox a period of grace to remedy them. This does not apply if the nature of the breach of duty does not allow for a remedy. The limits set out in § 10 shall apply to damages or compensation for futile expenses.
The Buyer is obliged to notify FeRox by letter, fax or e-mail of his declarations and notifications required under § 9.
The limitation period for all warranty claims is one year and begins with the delivery or provision of the contractual objects. The same period applies to other claims, of whatever nature, against FeRox. In case of intent or gross negligence on the part of FeRox, in case of fraudulent concealment of the defect, in case of personal injury or defects of title within the meaning of § 438 para. 1 No. 1 a BGB, as well as in case of guarantees (§ 444 BGB) the statutory limitation periods shall apply, as well as in case of claims under the Product Liability Act.
§ 10 Liability
The buyer\'s claims for damages or compensation for futile expenditure shall be governed by the present clause, irrespective of the legal nature of the claim.
FeRox shall have unlimited liability for damages to life, body or health resulting from a negligent breach of duty by FeRox or an intentional or negligent breach of duty by a legal representative or vicarious agent of FeRox.
For other liability claims FeRox is only liable without limitation in the absence of the guaranteed quality and for intent and gross negligence also of its legal representatives and executives. For the fault of other vicarious agents FeRox is only liable to the extent of the liability for slight negligence according to § 10 clause 4 of this liability clause.
FeRox is only liable for slight negligence if an obligation is violated, the observance of which is of particular importance for the achievement of the purpose of the agreement (cardinal obligation). In case of breach of the cardinal obligation, the liability is limited to five times the amount of the fee for the provision of the Software as well as to such damages that are typically to be expected within the scope of the provision of the Software.
Liability for loss of data is limited to the typical restoration effort that would have been required if back-up copies had been made regularly and at risk.
The above provisions shall also apply in favour of our employees.
The liability according to the product liability law remains unaffected (§ 14 ProdHG).
For the limitation period, § 9 No. 16 shall apply accordingly, with the proviso that the statutory limitation period shall apply to claims under § 10 Nos. 2 and 9. The limitation period pursuant to sentence 1 shall commence at the time specified in § 199 para. 1 BGB. It shall commence at the latest upon expiry of the maximum periods specified in § 199 (3) and (4) BGB.
§ 11 Duty of inspection and notification of defects
The buyer is obliged to examine the delivered software including the documentation within 8 working days after delivery, in particular with regard to the completeness of the data carriers and the functionality of basic program functions. The Buyer is further obliged to notify FeRox within 8 working days of any defects found. The Buyer is obliged to attach a description of the defects as detailed as possible to the notice of defects.
The buyer is obliged to give notice of defects discovered at a later date within 8 days of their discovery, in compliance with the requirements for giving notice of defects set out in clause 1.
If the buyer violates his obligation to inspect the software and give notice of defects, the software shall be deemed approved with regard to the defect in question.
The Buyer is obliged to inform FeRox immediately of any distraint or seizure if the retention of title continues. The Buyer is also obliged to inform the garnisher or seizure creditor of FeRox\'s retention of title in a suitable manner.
The Buyer is obliged to notify FeRox by letter, fax or e-mail of his declarations and notifications required under § 11.
§ 12 Program maintenance
FeRox owes a program maintenance only if an additional software maintenance agreement was concluded with the Buyer. This also applies to the adaptation of the software to legal and other basic conditions not yet foreseeable at the time of conclusion of the contract.
§ 13 Retention of ownership
FeRox reserves the right of ownership of the software delivered to the Buyer as well as all documents made available for this purpose until full payment has been made.
The Buyer is obliged to insure the items covered by FeRox\'s retention of title by taking out proper theft, fire, water and weak current insurance. The Buyer shall provide FeRox with evidence of such insurance upon request. The insurance claim of the Buyer shall be deemed assigned to FeRox in case of damage.
If the Buyer is in arrears and FeRox is in material breach of its duty of care or custody, FeRox\'s assertion of the retention of title shall not be deemed a rescission of the Agreement, unless FeRox expressly notifies the Buyer.
If FeRox asserts the retention of title, the right of the Buyer to continue to use the Software provided to it shall expire. In this case the Buyer is obliged to delete all copies of the program made by him.
§ 14 Duty to inform
The Buyer is obliged to inform FeRox in writing of the name and full address of the Buyer in case of resale of the Software.
The buyer is obliged to notify the manufacturer of a hardware change in writing.
The Buyer is obliged to notify FeRox in writing of the removal of a copy protection or similar protection routine from the Program Code. The Buyer is also obliged to describe the necessary disruption of the program use as precisely as possible. The obligation to describe the malfunction includes a detailed description of the symptoms of the malfunction, the presumed cause of the malfunction as well as a detailed description of the program change.
§ 15 Closing provisions
If the buyer also uses general terms and conditions of business, the contract is also concluded without express agreement on the inclusion of general terms and conditions of business. If the various general terms and conditions of business are identical in content, they are deemed to be agreed. In place of conflicting individual provisions, the provisions of dispositive law shall apply. This shall also apply in the event that the Buyer\'s terms and conditions contain provisions that are not included in FeRox\'s terms and conditions. If FeRox\'s terms and conditions contain provisions not included in Buyer\'s terms and conditions, FeRox\'s terms and conditions shall apply.
The Buyer is aware of FeRox\'s use of these general terms and conditions. He had the opportunity to take note of their contents in a reasonable way.
With regard to all legal relationships arising from this contractual relationship, the parties agree to the application of the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
If the buyer is a merchant in the sense of the German Commercial Code, a legal entity under public law or a special fund under public law, Passau is agreed to be the place of jurisdiction for all disputes arising in connection with the execution of this contractual relationship.
Should individual contractual provisions be or become invalid in whole or in part, the remainder of the contract shall remain valid. The same applies if there is a gap in this contract. This loophole is then to be closed by way of supplementary interpretation of the contract.