General Terms and Conditions (GTC) for tangro software components gmbh, Heidelberg
as of 01.01.2015
§ 1 Validity of AGB and Contents of Contract
1.1 These GTC apply to all business relationships entered into by tangro software components gmbH (hereinafter: tangro) with contractors within the meaning of § 14 of the BGB (German Civil Code) (hereinafter: Client) in relation to the creation, assignment, leasing and/or maintenance of standard and customised software and in the performance of services in the area of information technology.
1.2 The contractual terms set by tangro will apply exclusively. Other terms will not form part of the contract, even if tangro does not expressly object to them.
1.3 Any amendments and changes to the contract must always be made in writing. This also applies to any waiver of the written form clause.
1.4 Descriptions in test programmes, product descriptions and brochures do not constitute guarantees. Guarantees require express written confirmation from tangro.
1.5 The Client will bear the risk that the specification of the contractual items conforms to its desires and requirements. In case of doubt, it must seek expert advice prior to conclusion of the contract.
§ 2 Copyright and Intellectual Property
2.1 The software (programme and manual) is protected by copyright. tangro is exclusively entitled to the copyright powers over the software and all rights to all software assigned within the context of initiating and implementing the contract, including the guarantee, maintenance and advice, and any other documents, in the relationship between the contracting parties. This also applies to any changes and enhancements made to the software and to any other work results generated by tangro, which are capable of protection, within the framework of implementing the contract (e.g. through customising), even if these are made at the suggestion of, or in cooperation with, the Client.
2.2 The Client will receive authorisation, defined in detail in an individual contract (software transfer contract; software leasing contract), although not exclusively and transferable solely within the scope of § 2.3 of the GTC, to use the software transferred to it by tangro for its own internal purposes through duplication. Any other duplication and any other types of use, and any other possible types of use, of the software are prohibited, in particular the translation, processing (unless absolutely required for use in accordance with the intended purpose, including the removal of errors, and tangro fails to perform its contractual obligations in this regard within a reasonable period of time), adaptation and other reworking of the software, as well as the right to make it publicly available. Distribution of the software is prohibited.
2.3 The software may be used by companies affiliated with the end client within the meaning of §§ 15 ff. AktG (German Stock Corporation Act) if the Client informs tangro beforehand in writing regarding this use, specifying the company name and the address of the affiliated company, and tangro does not object in writing to the affiliated company starting to use it, within a month; tangro reserves the right to object in cases in which its use by the affiliated company concerned is opposed to tangro's creditable operational interests (e.g. obstacles to the performance of contractually stipulated services by tangro). In the event that the software is used by an affiliated company, the Client is liable for ensuring that the agreed usage restrictions are collectively observed. Any other use of the software by third parties or for the purposes of third parties (e.g. computer centre operations, online services) is not permitted.
2.4 Any widening of its potential area of use will require a separate contractual agreement.
2.5 The decompiling of the software is permitted within the statutory framework of copyright law, if tangro fails, within a reasonable period of time, to provide the information and/or documents required for preparing the interoperability of the software with other programmes despite a written request from the Client.
§ 3 The Client's Participation
3.1 The Client will support tangro in the implementation of the contract.
3.2 Unless otherwise stipulated in an individual contract, it will take responsibility itself for the required hardware, the operating system and the basic software. On request, tangro will inform the Client if specific types of hardware, operating systems or basic software are not suitable for use in conjunction with tangro software.
3.3 The Client will make telecommunications facilities available and will give tangro all of the information required for the performance of the contract.
3.4 The Client will arrange the required hard and software for remote maintenance, at its own expense, after consultation with tangro.
§ 4 Delivery and Delays
4.1. Binding delivery dates require written acceptance from tangro. Partial deliveries are permitted.
4.2 Deadlines for deliveries and services will be extended for the period in which tangro is prevented, through no fault of its own, from performing the delivery or service and for an appropriate period required for restart after the interruption has ended. The same will apply if tangro is waiting for information or acts of cooperation on the part of the Client.
4.3 In the event that tangro defaults in the provision of a delivery or service, the Client will initially be obliged to establish a grace period, in writing, for tangro, which must amount to at least 12 working days. The Client will only be entitled to assert further rights once the deadline has expired. In addition, § 12 of the GTC will apply to any compensation and reimbursement of expenses.
§ 5 Transfer of Risk
5.1 If tangro sends service objects physically to the Client, the risk will be transferred to the Client when the service object is consigned to the transport agent concerned.
5.2 If tangro transfers service objects to the Client electronically, the risk is transferred to the Client at the moment at which tangro makes the service object available in a network and informs the Client of this.
§ 6 Remuneration
6.1 Remuneration for deliveries and services provided by tangro is determined in individual contracts. VAT is always added to the prices specified there.
6.2 Travel periods, travel expenses and allowances are invoiced separately.
§ 7 Payment, Compensation, Assignment
7.1 In the absence of any individual contracts stipulating the contrary, the following regulations apply to payments owed by the Client: The Client must make payment within 14 days following receipt of the invoice without any deductions. tangro is entitled to invoice following delivery or performance of the service. Invoicing for software maintenance is made yearly in advance. In the case of any other services performed over a period of more than a month, tangro is entitled to invoice on a monthly basis.
7.2 In the event of delayed payment by the Client, tangro will be entitled to charge late payment interest at the legally determined rate. tangro will retain the right to claim for further damages caused by delays.
7.3 The Client will only be entitled to offset in the case of undisputed or legally established claims. It may not assign claims made against tangro without the prior consent of tangro. The Client may only support a right of retention for claims arising from the same contractual relationship.
§ 8 Revocation proviso
8.1 The Client is entitled to use the software in accordance with the contract even before full payment has been made. tangro may, however, revoke this power in the event of a delay in payment after a written extension period of 30 days has expired with appropriate warning or final refusal or inability to pay on the part of the Client.
8.2 tangro may revoke the usage rights for good cause. A good cause will be deemed to exist, in particular, if the Client does not observe the restrictive covenant of the software transfer contract or § 2 of the GTC, or violates the confidentiality obligation of § 13 of the GTC and does not end this behaviour even after receiving a written warning with the threat of revocation.
8.3 In the event that the usage rights are revoked, the Client must surrender all delivery objects and copies and delete any saved programmes. It must provide written assurance to tangro that this surrender and deletion has been performed.
§ 9 Examination and Notification Requirement
9.1 The Client is obliged to examine the deliveries and services performed by tangro immediately and to provide notification in writing of any defects identified or performance deficit with a precise description of the claim. This obligation is based on the ability of the Client to identify and name defects or performance deficits. Notification must be provided immediately in writing of any defects or performance deficits that are not obvious once they have been identified.
9.2 In the event of any legal defects, the Client will inform tangro immediately in writing of any property rights asserted against it by third parties.
§ 10 Defects of Quality and Title; other Defaults in Performance
10.1 The precondition for the obligations incumbent on tangro in the event of any defects of quality and title appearing is always notification of the defect, or notification in the event of a defect of title in accordance with § 9 of the GTC. In the event of any delayed, insufficient and unsubstantiated complaints or notifications, tangro will be released from its performance obligations. In the event that tangro nevertheless takes action, tangro will invoice for the costs incurred.
10.2 tangro is entitled and obliged, in the event of any defects of quality and title, to undertake supplementary performance. tangro will provide supplementary performance at its own discretion in the case of defective software by rectifying any errors or transferring a new version of the programme or by indicating the means of avoiding the effects of the error. A new version of the programme must be accepted by the Client if this leads to reasonable adjustment or rearrangement costs.
10.3 In the event that usage in accordance with the contract is restricted due to defects of title (e.g. due to third parties asserting claims to the software), tangro will, in the course of supplementary performance and at its own discretion, ensure that the software is used in accordance with the contract, by defending or satisfying those rights or by modifying the contractual items accordingly. tangro may also, at its own discretion, lead the legal or extra-judicial dispute against the third parties itself on behalf of the Client. The Client will support tangro in this to a reasonable extent.
10.4 The Client will support tangro in remedying any defects, in particular by surrendering error descriptions and test data and real data, by providing information from employees, access to the installation etc. The Client will take reasonable precautions in case the software does not function correctly (data backup, fault diagnosis, continual monitoring).
10.5 The Client retains the right to reduce the remuneration or to withdraw from the contract, once an appropriate deadline for remedying any defects, set in writing and allowing several attempts at supplementary performance, has expired without success. § 12 of the AGB will apply to any compensation and reimbursement of expenses. tangro will not be liable for the remedying of defects by third parties or contractual costs. Any further claims are excluded.
10.6 If tangro takes action and it cannot be demonstrated that the defects are caused by the services performed by tangro, tangro will invoice the Client for the expenses incurred.
10.7 The duties pertaining in the event of any defects of quality and title cease if the contractual items have been altered and the Client fails to prove that the defect has not occurred as a result of this.
10.8 The limitation period for any defects of quality and title is 24 months. The limitation period begins on the day on which the contractual object is delivered, and in the case of acceptance of subject services, on the day of acceptance.
10.9 In the event that tangro fails to perform services outside the scope of liability for defects of quality and title, or fails to perform them correctly, or if tangro commits any other violation of its duties, the Client must always grant tangro, in writing, an extension period of appropriate length, during which tangro will perform the service correctly without any additional costs or provide redress in any other way.
§ 11 Acceptance
11.1 In the event that tangro performs services additional to acceptance, the Client will be obliged to check the service within 14 days when requested by tangro and – if the check does not reveal any substantial defects – to declare acceptance in writing. If no written notification of any substantial defects is made during the said period, the service is deemed to have been accepted.
11.2 Insignificant defects are recorded in an acceptance report and remedied within the scope of liability for defects of quality and title (§ 10).
11.3 Acceptance will also be deemed to have been declared if the Client expresses its approval of the delivery and service by other means e.g. through initiating operation without reservation, or payment for a completed area.
§ 12 Liability 12.1 tangro will accept liability for any type of violation of duty, irrespective of the legal grounds (e.g. non-performance, impossibility, delay, defects of quality and title, other violations of duty or unlawful acts) only
- in the case of intent, gross negligence and based on the guarantee for the full amount;
- in the event that a duty, which is essential for the performance of the contract, is violated, and whose completion facilitates the proper implementation of the contract in the first instance and on the fulfilment of which the contracting party regularly relies (known as the 'cardinal duty'), due to ordinary negligence for compensation for typical and foreseeable damage;
- in the event of damage resulting from delays due to ordinary negligence up to the amount of the contractually agreed remuneration for delivery or service, in the event of damage resulting from delays due to a continuing obligation limited to the amount of the agreed annual compensation;
- tangro will not accept liability for any other cases of ordinary negligence.
12.2 tangro will only accept liability for the replacement of data if the Client has ensured through the proper backup of data that these data can be reproduced at reasonable expense from databases maintained in machine-readable form.
12.3 Legal liability in the event of personal injuries and under the German Product Liability Act (ProdHaftG) remains unaffected.
§ 13 Non-disclosure and Safekeeping
13.1 The contracting parties undertake that they will treat all information, documents and data that is made known to them during the performance of the contractual services confidentially and neither make them available to third parties nor use them in any other manner. The contracting parties will inform their employees, who have official access to the contractual items, in writing of the non-disclosure obligation. The Client will store and secure the contractual items in such a way that they cannot be misused by third parties.
13.2 tangro will process the Client's data electronically and will comply with the provisions of the Data Protection Act. It is nevertheless the responsibility of the Client to secure personal data prior to initiation of the services so that tangro is unable to access the data unintentionally (when not required for the performance of the contract). It is also the responsibility of the Client to obtain authorisations required under data protection law from affected employees, clients and business partners of the Client and any other affected persons. It will exempt tangro from any claims that these persons might bring against tangro for noncompliance with these duties.
§ 14 Final Provisions
14.1 The place of jurisdiction for all disputes arising in relation to this contract is Karlsruhe, if the Client is a merchant, a legal person under public law or a special fund under public law.
14.2 The law of the Federal Republic of Germany applies exclusively, with the exception of UN purchase law (CISG).