General Terms and Conditions of ck.solution GmbH (hereinafter referred to as ck.solution)
§ 1 . Scope
(1) These General Terms and Conditions (GTC) apply to all offers made by ck.solution and orders placed with ck.solution, provided that the recipient of the offer from ck.solution or the client of ck.solution is an entrepreneur. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
(2) Terms and conditions of the contractual partner that are contrary to or deviate from these terms and conditions shall only be recognised if ck.solution expressly agrees to their validity in writing.
(3) These terms and conditions shall also apply to all future transactions with the contractual partner, insofar as they are legal transactions of a related nature.
§ 2. Offer and conclusion of contract
(1) Insofar as an order is to be regarded as an offer pursuant to § 145 BGB, ck.solution may accept this offer within two weeks.
(2) The commissioning as well as the description of the contractual services shall be effected by individual contracts or by order confirmations of ck.solution together with the corresponding annexes.
(3) The subject matter of the contract shall generally be determined in accordance with the written agreements together with the annexes and specifications. Against this background, the subject matter of the contract may include, in particular, consulting services in the planning of the software, the creation of the software, the transfer and installation/implementation of the software together with operating instructions and training in the use of the software.
(4) As a matter of principle, the contract shall be based on a specification drawn up by the contractual partner – if necessary with the advice of ck.solution – as an integral part of the contract. The requirements of the contractual partner are to be specified in as much detail as possible.
(5) Both the granting of rights to the source code and its transfer shall only be made by separate agreement. This does not apply if the updating and error correction cannot be provided by ck.solution or a third party provider without transfer of the source code in return for reasonable remuneration.
(6) If the contractual partner requests changes and additions deviating from the original agreement, ck.solution will inform the contractual partner in writing about the expected additional expenditure. The amendments or supplements shall subsequently also become part of the contract by written confirmation of the client or separate written amendment to the contract.
§ 3. Documents provided
(1) ck.solution reserves the property rights and copyrights to all documents provided to the contractual partner in connection with the placing of the order, unless otherwise agreed in writing in the individual contract.
(2) Documents provided to the contractual partner in connection with the placing of the order may not be made accessible to third parties unless ck.solution gives the contractual partner its express written consent to do so.
(3) If ck.solution does not accept the offer of the purchaser within the period of § 2, the documents provided shall be returned to ck.solution without delay.
§ 4. Remuneration and payment
(1) The amount of remuneration shall be based on the agreement in the respective individual contract.
(2) If a lump sum/fixed price is agreed for the respective order, ck.solution is entitled to demand reasonable down payments. Unless otherwise agreed in writing, 30% of the agreed total remuneration shall be invoiced as a rule when the order is placed.
(3) The granting of rights and transfer of ownership shall only become effective upon full payment of the remuneration.
(4) Prices are in euros plus the statutory value added tax.
§ 5. Offsetting and rights of retention
The contractual partner shall only have the right to offset if its counterclaims have been legally established or are undisputed. The contractual partner is only entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
§ 6. Completion dates / delay
(1) The deadlines for the completion/performance of the individual contractual services shall be based on the agreements in the respective individual contract, in particular the provisions in the specifications.
(2) If ck.solution exceeds a completion date, if the contractual partner has fully complied with his duties to cooperate and if the exceeding of the completion date is not due to subsequent change requests of the contractual partner or other circumstances for which the contractual partner is responsible, then the contractual partner is obliged to first give written notice to ck.solution of the completion and to set a reasonable deadline for performance or subsequent performance. Withdrawal from the contract by the contractual partner shall be permissible at the earliest after the fruitless expiry of this period.
(3) If the contractual partner is in default of acceptance or culpably violates other duties to cooperate, ck.solution is entitled to demand compensation for the damage it has incurred in this respect, including any additional expenses. We reserve the right to assert further claims.
§ 7. Duty of cooperation of the contractual partner
(1) The contractual partner is obliged to cooperate with ck.solution in an appropriate and reasonable manner in the fulfilment of the contract. Unless otherwise agreed in writing, the contractual partner shall in particular provide the systems required for the performance of the contract as well as the necessary information of a technical and organisational nature. The term "systems" includes hardware, software, databases as well as (existing) interfaces.
(2) Unless otherwise agreed in writing, the contractual partner shall be obliged to ensure that the "systems" provided by it are functional within the meaning of para. 1.
(3) The contractual partner guarantees that it has the necessary licences for the "systems" it uses within the meaning of para. 1.
(4) In the case of test runs or acceptance tests, the legal representative of the contractual partner shall be present in person or shall assign expert employees for this purpose who are authorised to be able to assess defects, function extensions, function reductions or changes in the structure of the programme and to make a binding statement.
(5) The contractual partner shall ensure that ck.solution has the necessary access to the system on which the software is to be installed. Depending on the order, the availability of the system or individual components may be limited during the work. Insofar as such restrictions are foreseeable, ck.solution will inform the contractual partner of such restrictions as soon as possible in advance.
(6) It shall be incumbent upon the contractual partner to take reasonable precautions for data backup in accordance with the due diligence of a prudent businessman so that the data from the data files held in machine-readable form can be reproduced with reasonable effort. The scope and frequency of the file backups depend on the respective importance of the systems and data stocks.
§ 8. Rights of use
The scope of the rights of use to software created by ck.solution is governed by the individual contractual provisions. Rights of use shall generally only be granted to the extent necessary to achieve the purpose of the contract. An extension of the originally contractually agreed scope of use, e.g. by increasing the number of workstations or use at additional locations, requires the consent of ck.solution.
§ 9. Acceptance
(1) Insofar as the creation of software, the adaptation or individualisation of standard software by ck.solution is the subject matter of the contract, acceptance shall take place after completion of the overall performance.
(2) If the service is provided at previously defined milestones (partial services), an acceptance of the respective service shall take place after completion of the respective partial services. (3) After notification of completion, acceptance tests are carried out by ck.solution in order to prove the existence of the agreed quality and the agreed programme functions. With regard to the contractual partner's duty to cooperate in these tests, reference is made in particular to §7 para. 4.
(4) If the acceptance tests were successful, the contractual partner is obliged to submit a written declaration of acceptance at the request of ck.solution. Acceptance may not be refused due to insignificant defects. Any minor defects found shall be recorded in the acceptance declaration.
(5) ck.solution can set a reasonable deadline for the submission of the acceptance declaration, after the expiry of which the product is deemed to have been accepted.
§ 10. Warranty
(1) The contractual partner is obliged – in the case of a purchase of standard software from ck.solution – to examine the delivered goods immediately for obvious defects. The lack of manuals is also regarded as an obvious defect. This also includes cases where a different item or too small a quantity is delivered. Such obvious defects are to be notified to ck.solution in writing without delay. In the event of a breach of the duty to inspect and give notice of defects, the goods shall be deemed to have been approved in view of the defect in question.
(2) Claims for defects become statute-barred 12 months after acceptance of the service by the contractual partner or, in case of purchase, after delivery of the goods delivered by ck.solution to the contractual partner. However, the limitation period pursuant to sentence 1 shall apply subject to the following proviso:
(a) The limitation period generally does not apply in case of intent or fraudulent concealment of a defect or as far as ck.solution has assumed a guarantee for the quality of the services. The statutory time limits shall apply in their place.
(b) The limitation period shall also not apply to works or a work the success of which consists in the provision of planning or supervision services therefor. The statutory time limits shall apply in their place.
(c) Furthermore, the limitation period shall not apply to claims for damages in the event of a grossly negligent breach of duty, in the event of a culpable breach of cardinal obligations (cardinal obligations are obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner may regularly rely on), in the event of culpably caused injury to life, limb or health or in the event of claims under the Product Liability Act. The statutory time limits shall apply in their place.
(3) Unless expressly stipulated otherwise, the statutory provisions on the commencement of the limitation period, the suspension of the running of the limitation period, the suspension and the recommencement of limitation periods shall remain unaffected.
(4) The above provisions shall apply accordingly to claims for damages that are not related to a defect.
(5) A change in the burden of proof to the detriment of the client is not associated with the above provisions.
(6) Should the product manufactured or delivered by ck.solution, including the manuals and other documents, have defects which were already present at the time of acceptance or transfer of risk, ck.solution shall, subject to timely notification of defects, at ck.solution's discretion either repair the product free of charge or deliver replacement goods. The contractual partner must always give ck.solution the opportunity to remedy the defect within a reasonable period of time. The services shall be provided in accordance with the "Generally Accepted Rules of Technology".
(7) If the defect cannot be rectified within the reasonable period of time or if the rectification or subsequent delivery is to be regarded as having failed for other reasons, the contractual partner may, at its discretion, demand a reduction of the remuneration (abatement) or withdraw from the contract. A failure of the rectification is to be assumed if ck.solution has been given sufficient opportunity for rectification (two attempts) or replacement delivery without achieving the desired success, if the rectification or replacement delivery is made possible, if the rectification or replacement delivery is refused or unreasonably delayed by ck.solution, if there are reasonable doubts regarding the prospects of success or if there is unreasonableness for other reasons.
(8) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality and in the case of only insignificant impairment of usability. If the contractual partner or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences, unless the contractual partner proves that the repair work and modifications carried out by him were not causal for the defect.
(9) Claims of the contractual partner due to expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by ck.solution have subsequently been taken to a place other than the contractual partner's branch office, unless the transfer corresponds to their intended use.
§ 11. Liability
(1) ck.solution is liable for damages or compensation of futile expenses without limitation in case of intent and gross negligence, for injury to life, limb or health, according to the provisions of the Product Liability Act as well as to the extent of a guarantee assumed by ck.solution and fraudulent intent of ck.solution. The same applies in case of a debtor's default by ck.solution for claims to default interest, to the default lump sum according to § 288 para. 5 BGB (German Civil Code) as well as to compensation for the damage caused by default, which is based on the legal costs. This provision does not imply a change in the burden of proof to the detriment of the contractual partner.
(2) In case of a slightly negligent breach of an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation), the liability of ck.solution per damage event is limited to the amount of the contract-typical, foreseeable damage. The same applies in case of debtor's default by ck.solution or an impossibility of performance for which ck.solution is responsible.
(3) ck.solution is neither liable for the operability of the telecommunication connection to servers of ck.solution, nor for failures of servers which are not within the sphere of influence of ck.solution; furthermore, ck.solution is not liable for damages caused by force majeure or comparable events. Comparable events are in particular strikes, official orders, pandemics, epidemics, disruptions in the area of other telecommunications or service providers.
(4) Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk, unless one of the conditions under § 11 paragraphs (1) or (2) applies.
(5) In the case of contracts that are subject to tenancy law regulations, the liability of § 536 a para. 2 BGB (tenant's right of self-remedy) is excluded. Also excluded is the liability of ck.solution for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract, insofar as the norm provides for liability without fault. The liability according to § 11 paragraph (1) and (2) remains unaffected.
(6) There is no further liability on the part of ck.solution. The objection of contributory negligence remains unaffected.
(7) The above limitation of liability also applies to the personal liability of the employees, representatives, organs, vicarious agents and assistants of ck.solution.
§ 12. Terms / terminations
(1) Unless otherwise agreed by the parties, contracts authorising the contractual partner to distribute or sub-licence software shall enter into force upon signature and shall be valid for an unlimited period. They may be terminated by either contractual party with three calendar months' notice to the end of any calendar year.
(2) Individual user licences which entitle the respective user to use software shall always have a minimum term of 12 months, unless otherwise agreed. They end on 31.12. of a calendar year, at the earliest, however, after the expiry of 12 months, and are each extended by 1 further calendar year (from 01.01.-31.12.) if and insofar as one of the two parties does not terminate the respective licence with three calendar months' notice to 31.12.
(3) The right of termination for an important reason remains unaffected.
(4) Any termination must be in text form (e.g. email).
(5) Any use of software after termination of a use licence is not permitted.
§ 13. Data protection
(1) The contractual partner shall comply with all relevant data protection regulations, in particular the German Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). The contractual partner is obliged to take all measures required in accordance with Art. 32 GDPR.
(2) The contractual parties are mutually entitled to process personal data insofar as this is necessary for the performance of a contract or for the implementation of pre-contractual measures (Art. 6 para. 1 lit. b) GDPR).
(3) The contractual parties shall conclude the necessary agreements in accordance with Art. 26-28 GDPR to the extent necessary.
§ 14. Miscellaneous / final provisions
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Mandatory provisions of the state in which the contractual partner has its habitual residence shall remain unaffected.
(2) The registered office of ck.solution is the place of performance and jurisdiction, unless there is an exclusive place of jurisdiction. In the cases of sentence 1, the place of jurisdiction is deemed to be agreed in the sense of a special place of jurisdiction, which consequently leaves other statutory places of jurisdiction unaffected.
(3) If any provision of this framework agreement or of any individual agreement concluded or any provision incorporated herein in the future is wholly or partly invalid or unenforceable or subsequently loses its validity or enforceability, the validity of the remaining provisions shall not be affected thereby. The same applies if it turns out that there is a loophole. The parties are aware of the case law of the Federal Court of Justice according to which a severability clause merely reverses the burden of proof. However, it is the express intention of the parties to maintain the validity of the remaining provisions of the contract under all circumstances and thus to waive § 139 BGB altogether.