§ 1 Scope of application
1. the following General Terms and Conditions of Business shall apply exclusively to all initial, current and future transactions concluded with MID Technologien GmbH (hereinafter referred to as “MID”).
2. the contractual partner’s terms and conditions of purchase are hereby rejected. They shall not be recognized even if we do not expressly object to them.
3. amendments or additions to the contract must be made in writing to be legally effective. No verbal collateral agreements have been made.
§ 2 Offer and conclusion of contract
1. offers from MID are subject to change and non-binding. A contract between the company and the client is concluded either by a written order confirmation by letter, fax or e-mail or by fulfillment of the order.
2. orders placed verbally by the Contractual Partner and changes to orders that have already been confirmed shall only become effective if they have been confirmed in writing by MID.
§ 3 Delivery and activation
1. software shall be supplied on commercially available data carriers or by means of a download option on the MID website.
2. the software or software modules are activated on the basis of the licenses purchased.
§ 4 Scope of services
1. installation: The Contractual Partner shall be responsible for the proper installation of the software supplied by MID. Both the installation by MID and the training and instruction of the Contractual Partner and any end users in the operation of the delivered software shall not be part of the scope of services, unless they are agreed and invoiced on the basis of a corresponding separate agreement. If such an agreement has been made, the Contractual Partner shall ensure that the necessary conditions are created, that the technical requirements for the installation are met and, in particular, that the necessary hardware configuration is available.
2. we develop individual software or special adaptations on the basis of a specification to be drawn up by the contractual partner before conclusion of the contract. The exclusive responsibility of the contractual partner for the requirements description/specification and his specifications shall not be affected by the fact that we support him in its creation. If the specification proves to be incorrect, incomplete, contradictory, impracticable or contains other defects, the contractual partner must ensure that it is amended or adapted. Subsequent amendments or additions to the specification must be agreed in writing and are subject to separate remuneration – we are entitled to refuse acceptance or amendment. As long as no change or addition has been agreed in writing, we may continue the work unchanged.
3. software updates are supplied promptly by the manufacturer in accordance with legal requirements and availability. The purchase is regulated separately in a software maintenance contract.
4. hotline or support is provided in accordance with the service description. The service description, scope and conditions are regulated in a separate hotline service contract.
5. services such as consulting services, error analyses, installations, individual adaptations, software development, support, training or the installation of software updates that take place outside of an existing contract shall be invoiced separately. This also applies in particular to services provided by telephone or via the Internet/remote maintenance. A service day consists of 8 hours.
6. data center services are provided in accordance with the service description. The service description, scope and conditions are regulated in a separate contract.
7 Third-party products (hardware, software or other merchandise) shall be delivered in accordance with the performance specifications and the delivery or license conditions of the manufacturer or licensor.
8 Data backup: Proper data backup is the sole responsibility of the contractual partner.
9. we are entitled at any time to have agreed services or partial services performed by third parties.
§ 5 Rights of use
1. upon full payment of the license fees, the Contractual Partner shall not acquire ownership of the software created by MID (MID products), but rather a software license in the sense of a non-exclusive, non-transferable, perpetual right to use the software for the Contractual Partner’s internal business purposes. This right of use is tied to the licensee of the program. The right of use is never transferred to the purchaser, even if the licensee sells the hardware.
2. the contractual partner only acquires a right of use to third-party products if he accepts the manufacturer’s license conditions. The right of use shall be governed exclusively by the manufacturer’s terms and conditions of delivery and license.
3. for the purpose of checking correct licensing, customer support and product optimization, MID is entitled to obtain and store license-relevant information about the installed software, including the IP addresses of the servers used for operation. The transmitted data will not be used for other purposes and neither personal data nor data on business transactions will be recorded.
§ 6 Copyrights
1. the software distributed by MID is the intellectual property of MID. All copyrights to the software and the associated documentation shall remain with MID or our licensor (in the case of third-party products). The rights derived therefrom are not transferable.
2. the license fee due upon sale entitles the user to use exactly one copy of the software. The license fee entitles the end user to install the software on exactly one single server instance (also virtual). The license does not entitle the user to use the software on other systems such as test systems or staging systems, which must be licensed separately.
3. the contractual partner undertakes to refer to the rights, in particular our copyright and our program designations, in the context of any business advertising and on all documents in which reference is made to our programs. The same shall apply in favor of our licensors if the contractual partner uses or markets licensed programs of our licensors.
4. in any case in which it is proven that the Contractual Partner has intentionally or grossly negligently used more than one paid copy or made it available to third parties for use, the Contractual Partner undertakes to pay MID a contractual penalty in the amount of ten times the license fee. The contractual penalty shall be independent of any claims for damages.
5 These provisions shall apply indefinitely, i.e. even after the end of the contract.
§ 7 Retention of title
1. all delivery items shall remain our property until all existing claims and claims arising in the future in connection with the object of our services have been fulfilled.
2. if the contractual partner fails to meet its obligations, we shall be entitled to take back the goods as security at the contractual partner’s expense or to discontinue support, without this already constituting a withdrawal from the contract, unless we expressly declare our withdrawal.
3. the contractual partner may not dispose of the reserved goods delivered by us without our consent. Pledging or transfer by way of security of the goods in our ownership is not permitted.
§ 8 Terms of delivery and payment
1 Unless otherwise agreed, our prices are net, i.e. plus the statutory value added tax applicable at the time of delivery. The MID price list at the time of the respective order shall apply.
2. unless otherwise agreed, all invoices are due for payment immediately without deduction.
3 Unless otherwise agreed, the following terms of delivery and payment shall apply:
(a) Standard software: Billing 100% upon delivery of the software or the software license.
(b) Individual software: billing 50% upon order placement, 40% upon delivery or notification of completion, 10% upon acceptance or commissioning.
(c) Services are provided within our business hours. Billing is based on actual expenditure per 0.25 hour. Surcharges: For assignments on weekdays before 08:00 and after 18:00: 25%, on Saturdays: 50%, on Sundays and public holidays: 100%.
(d) Service quota: In advance immediately after invoicing.
(e) Software maintenance contracts: Initial term for the current and the following full calendar year, automatic renewal for a further calendar year if not terminated with 3 months’ notice to the end of a calendar year. A later start will be charged at a 50% surcharge for retroactive subsequent purchases. Billing takes place annually in advance by invoice or monthly by direct debit with a 5% surcharge.
4. the contractual partner may only offset undisputed or legally established counterclaims. The same applies to a right of retention.
§ 9 Acceptance for individual software or special adaptations
1. software products are delivered in accordance with the product and service descriptions of the software manufacturer. Acceptance is not required.
2. individual software or special adaptations are created and delivered in accordance with the specification or requirements specification. In the case of customized software developed in stages, notification of completion shall be given. Acceptance shall be carried out by the contractual partner within 14 days of delivery or notification of completion. If the contractual partner does not comply with the request for acceptance, the individual software shall be deemed to have been accepted after 14 days.
3. the individual software shall also be deemed to have been accepted if the contractual partner uses the software or puts it into operation, in particular also in the case of only partial use.
4. on request, MID can support the Contractual Partner with the installation on a test system and with the functional test for a fee.
5. if there are minor or insignificant defects that do not impair commissioning, the contractual partner may not refuse acceptance. These defects shall be recorded and rectified in accordance with the statutory provisions.
§ 10 Warranty and liability
1 MID warrants to the Contractual Partner that the program functions described in the documentation are correct, provided that the user has received sufficient training. We do not guarantee that the products meet the requirements of the Contractual Partner or that they will work together in the selection made, for which the Contractual Partner is solely responsible.
2. the warranty period is 12 months and begins on the day of delivery of the software or software license. The warranty period for defects in supplementary performance shall also end upon expiry of the warranty period.
3. the Contractual Partner is aware that it is not possible according to the state of the art to create software in such a way that it works completely error-free in all applications and combinations. In the event of errors in the software logic that lead to processing errors occurring after correct application of the instructions for use, which significantly impair the usability of the software for the end user, the respective software may, at MID’s discretion, either be exchanged for an error-free version within a reasonable period of time or be taken back against reimbursement of the license fee.
4. in the event of errors in the program logic which lead to processing errors occurring after correct application of the operating instructions, which significantly impair the usability of the programs for the end user, the respective program can, at our discretion, either be exchanged for an error-free version within a reasonable period of time or taken back against reimbursement of the license fee.
5. MID shall be released from the obligation to rectify errors free of charge if changes have been made to the affected software by the MID specialist retail partner, intermediate seller, end user or a third party – without the consent of MID – or if the version declared by MID as the latest valid version has not been used, unless the contractual partner (specialist retail partner or end user) can prove that the defect was not caused by these changes.
6. MID shall be liable without limitation in the event of intent or gross negligence, for injury to life, limb or health, in accordance with the provisions of the Product Liability Act and to the extent of any guarantee assumed. In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (so-called “cardinal obligation”), MID’s liability shall be limited to the amount of damage that is foreseeable and typical for the type of contract concluded. In the event of loss of data, we shall only be liable for the expenditure required to restore the data in the event of proper data backup by the Contractual Partner.
7. any further liability beyond the above provisions, regardless of the legal basis, is excluded in all cases, in particular any compensation for damages and any compensation for consequential damages, unless there is intent or gross negligence. This also applies to direct claims against our legal representatives or vicarious agents.
8. the warranty and liability conditions of the manufacturer apply to third-party products. We assume no product liability for third-party products. Within the warranty period for third-party products, we represent the interests of the contractual partner, thereafter only if a valid update and hotline service contract has been concluded with us. The contractual partner can have the warranty rights that we have against the manufacturers assigned to us.
§ 11 Notification of defects
1. as soon as defects occur in the software supplied by MID, the contractual partner shall inform us of these immediately in writing with a precise description of the defect. The Contractual Partner shall be obliged to retain all documents required to describe the defects, to keep records of the circumstances under which the defects occurred, to make a copy of the database and to provide further information for analysis on request.
2. if notified defects cannot be detected during an inspection or cannot be reproduced in a test environment or if the defects that have occurred are due to incorrect operation, problems in the IT infrastructure used by the contractual partner, product defects in third-party products or other faults for which we are not responsible, the costs of the analysis and inspection shall be borne by the contractual partner.
3. the conditions of the manufacturer apply to third-party products. For third-party products, we only undertake analyses or inspections if a valid update software contract has been concluded with us or by individual contract.
§ 12 Advance performance obligation, right of withdrawal, cancellation and conversion
1. if orders cannot be carried out or can only be carried out in part for reasons that lie within the sphere of risk of the contractual partner, we are entitled to charge cancellation fees.
2. if ordered services are not called up within a reasonable period of time for reasons within the contractual partner’s sphere of risk, we shall be entitled to convert them into a service quota and invoice them in advance. A maximum of 6 months after placing the order is agreed as a reasonable time.
3. in the case of rescheduling of services by the contractual partner, no fees shall be charged up to 2 weeks before the start of the order, 5% up to 1 week before the start of the order and 10% thereafter up to the start of the order. The contractual partner is at liberty to provide evidence of lower damages.
§ 13 Special regulations for software rental (SaaS, Software-as-a-Service)
1. if the Contractual Partner has not purchased the contractual software from MID in accordance with its order, but has merely rented it from MID, the rights of use shall not be granted permanently, but only for a limited period of time, as long as the rental invoices are paid.
2 The contract may be terminated by either party in writing with one month’s notice to the end of the month. The right to extraordinary termination for good cause remains unaffected.
3. all rights of use of the contractual partner shall expire at the end of the termination period.
§ 14 Data protection
1. the Contractual Partner is informed that MID will process, store and evaluate the data received about it in connection with the business relationship (such as name, company, address, telephone and fax number, e-mail address and the basic data of the contract concluded with it), insofar as this is necessary for the proper processing of the contractual services.
§ 15 Final provisions
1. place of performance and sole place of jurisdiction is Augsburg.
2. the law of the Federal Republic of Germany shall apply exclusively.
3 Should individual provisions of our GTC be or become invalid, this shall not affect the validity of the remaining provisions. In the event of ineffectiveness or invalidity, the ineffective or invalid provision shall be replaced by a provision that comes closest to the economic purpose of the ineffective or invalid provision.