General Terms and Conditions of C.K. Solution – Software engineer office Chris Kroos (hereinafter: C.K. Solution)
§ 1. Scope of Validity
(1) These general terms and conditions (GTCs) apply to all services provided by C.K. Solution and orders given insofar as the commercial recipient or contracting entity of C.K. Solution is an enterprise, a public legal entity or special fund under public law, as specified in § 310 paragraph 1 of the German Civil Code (BGB).
(2) Contradictory terms or requirements of the contractual partner that deviate from these terms and conditions will be valid only if and when C.K. Solution confirms them in writing.
(3) These terms of business are also valid for all future transactions or orders with the contractual partner insofar as it concerns legal transactions of related kind.
§ 2. Offer and Conclusion of Agreement
(1) If an order can be considered an offer pursuant to § 145 of the German Civil Code (BGB), C.K. Solution can accept it within two weeks.
(2) Contractual services will be commissioned and described in individual contracts or order confirmations from C.K. Solution along with associated attachments.
(3) The subject matter of the contract is determined essentially by the stipulations of the written agreements along with attachments and specifications. In view of this, the subject matter of the contract can include consultation services during the planning of the software, the creation of the software, the transfer and installation/implementation of the software along with operating instructions and training in the use of the software.
(4) The specification created by the contractual partner – possibly under consultation from C.K. Solution – shall form an integral part of the contract and will form the basis of the contract. It will lay down the requirements of the contractual partner in as much detail as possible.
(5) Permission to use the source code and surrender of the source code will occur only by separate agreement. This does not apply if C.K. Solution or a third party cannot provide updating and troubleshooting services without surrendering the source code for an appropriate fee
(6) If a contractual partner has further requests or wants to make changes to the original agreement, C.K. Solution will inform them in writing of the expected additional expenses. The changes or additions confirmed in writing by the contracting entity or a separate contract supplement will become an integral part of the contract.
§ 3. Surrendered Documents
(1) C.K. Solution shall retain the property rights and copyrights of any documents surrendered to the contractual partner for the purpose of placing the order provided that there is no written derogation in the individual contract that stipulates otherwise.
(2) Documents that have been surrendered to the contractual partner for the purpose of placing the order shall not be made available to third parties unless C.K. Solution has given the contractual partner specific written agreement.
(3) If C.K. Solution does not accept the customer’s offer within the time period in § 2, surrendered documents are to be returned to C.K. Solution without delay.
§ 4. Remuneration and Payment
(1) The remuneration amount depends upon the agreement in the individual contract.
(2) If a flat-rate price / fixed price has been agreed for the contract, C.K. Solution is entitled to demand reasonable instalment payments. When the order is placed, 30% of the agreed total remuneration amount will be invoiced, provided no written agreement that stipulates otherwise exists.
(3) Only upon full payment of the remuneration amount will transfer of ownership and granting of rights become effective
§ 5. Set-off and Right of Retention
The contractual partner has the right to set-off with counter claims only if these counter claims are legally valid or undisputed. The contractual partner is authorised to exercise a right of retention in so far as their counter claim is based on the same contractual relationship.
§ 6. Completion Dates / Delay
(1) The dates for completion / provision of individual contractual services are determined by the agreements in the respective individual contract, especially the regulations in the specification.
(2) If C.K. Solutions exceeds a completion deadline, the contractual partner has fully fulfilled their obligations to co-operate and the reason for the deadline being exceeded cannot be attributed to subsequent requests for changes or other circumstances that are due to the contractual partner, the contractual partner must firstly remind C.K. Solution in writing of completion and specify a period of grace of at least four weeks for provision of services or subsequent fulfilment. The contractual partner is permitted to cancel the contract only after this period has expired without a satisfactory result.
(3) If the contractual partner comes into default of acceptance or violates other obligations to co-operate, then C.K. Solution shall be entitled to demand compensation for the damage arising thereby, inclusive of any additional expenses. The right to further claims shall remain reserved.
7. The Duty to Co-operate of our Contractual Partner
(1) The contractual partner is obliged to co-operate appropriately and reasonably with C.K. Solution during contract fulfilment. Provided that it is not specified otherwise in writing, the contractual partner must make available the necessary systems as well as technical and organizational information that are needed for contract fulfilment. The term “systems” applies to hardware, software, databases and (existing) interfaces.
(2) Unless it has been agreed otherwise in writing, the contractual partner must ensure that the “systems” they provide, as defined by paragraph 1, are working properly.
(3) The contractual partner must ensure that they have the necessary licenses for the “systems” they are using as defined in paragraph 1.
(4) During test runs or acceptance tests the legal representative of the contractual partner must be present in person or the contractual partner must provide competent members of staff who have the power to judge and determine authoritatively with regard to errors, expansion of features, reduction of features or changes in the programme structure.
(5) The contractual partner must ensure that C.K. Solution has necessary access to the system on which the software is to be installed. Depending on the contract, the availability of the system or individual components may be limited during works. If such restrictions are foreseeable, C.K. Solution will inform the contractual partner in as far advance as possible.
(6) To prevent data loss the contractual partner shall back up their data regularly. The extent and frequency of the backups will be determined by the importance of each system and database.
§ 8. Rights of Use
The extent of the rights of use for software created by C.K. Solution is determined by the individual contract. Use of rights that go beyond the original contractual agreement – for example, an increase in the number of work stations or its use in other locations – depends on the agreement of C.K. Solution.
§ 9. Acceptance
(1) Insofar as the creation of software and the adjustment or customization of standard software by C.K. Solution is subject matter of the contract, acceptance shall occur after completion of all works.
(2) If service is being delivered by previously defined milestones (subservices), acceptance of each service shall occur after completion of the corresponding subservice.
(3) After notification of completion, C.K. Solution shall perform acceptance tests to prove the existence of the agreed quality and the agreed programme functions. The contractual partner has a duty of co-operation during these tests – see §7 para. 4.
(4) If the acceptance tests are successful, the contractual partner shall give a written acceptance declaration when requested to do so by C.K. Solution. Acceptance must not be refused on account of insignificant defects. Any minor defects that are detected are to be recorded in the acceptance declaration.
(5) C.K. Solution can specify a reasonable period of time for delivery of the acceptance declaration and after expiry of this the product will be deemed to have been accepted.
§ 10. Warranty, Notice of Defects, Recourse, Manufacturer's Recourse
(1) The contractual partner – when buying standard software from C.K. Solution - is under the obligation to examine the delivered goods for obvious defects which would easily attract the attention of the average customer. Obvious defects also include missing handbooks. This also includes cases when a different item has been delivered or too small a quantity has been delivered. Such obvious defects are to be notified to in writing to C.K. Solution within four weeks of delivery. C.K. Solution must be notified of defects which only later become obvious within four weeks after they were first noticed by the user. If there is an infringement of the examination and notice of non-conformity, the goods are deemed as approved in view of the defect concerned.
(2) Claims come under the statute of limitations 12 months after acceptance of the service by the contractual partner or after purchase when we have delivered the goods to the contractual partner.
(3) If the goods delivered or manufactured by C.K. Solution, including the handbooks and other documents, exhibit a defect that already existed at the time of acceptance or transfer of risk, C.K. Solution will, at their discretion, either repair the goods free of charge or supply replacement goods, provided that the notice of defects was given in due time. C.K. Solution must always be given the opportunity to render subsequent fulfilment within a reasonable time. Services shall be rendered in accordance with the “the general codes of practice” for technical objects in German law.
(4) If the defect cannot be rectified within a reasonable period, or if rectification or replacement delivery is to be regarded as having failed for other reasons, the customer can, at his discretion, demand a reduction of the purchase price (mitigation) or withdraw from the contract. Rectification shall not be considered to have failed until C.K. Solution have been given sufficient opportunity (three attempts) for rectification or replacement delivery without the desired success being achieved, if rectification or replacement delivery from C.K. Solution is no longer possible, if it is refused or unreasonably delayed by the customer, if there are justified doubts as regards the prospects of success, or if it is unreasonable on other grounds.
(5) There will be no claims for defects in the case of only slight variation from the agreed quality and in the case of only slight impairment of serviceability. If the contractual partner or a third party performs improper modifications or repairs, claims of defects for these components and liability for any resulting consequences shall be void.
(6) The contractual partner cannot assert any claims based on the expenditure required for rectification, in particular the cost of transportation, travelling, labour and material if the expenditure increases because the goods delivered by C.K. Solution have been subsequently transported to a place other than the contractual partner’s premises, unless such transportation complies with the intended use of the goods.
§ 11. Liability
(1) C.K. Solution excludes liability for the negligent breach of duty unless they relate to contractual obligations, damages resulting from loss of life, limb or health or guarantees, or claims under the German Product Liability Act.
(2) In cases of gross negligence and the lack of features for which C.K. Solution has given a guarantee, C.K. Solution’s liability shall be limited to € 5000, provided that this amount covers the foreseeable, contract-typical damages that the guarantee or breach of obligation was intended to prevent. If, in an individual case, the foreseeable, contract-typical damages exceed an amount of € 5000, liability will be limited to the foreseeable damages that the guarantee or breach of obligation was intended to prevent. These limitations of liability do not apply to liability for personal injury (life, limb or health) or liability under the German Product Liability Act.
(3) The above limits and exclusions of contractual liability also apply in parallel to delict liability and the liability of subcontractors and legal representatives of C.K. Solution.
(4) C.K. Solution will not accept liability for damages that are a result of unauthorised modifications made by the contractual partner or a third party, improper use or use contrary to the terms of the contract, use that goes beyond the designated function of the contractual services, or unauthorized distribution to third parties.
(5) In the event of loss of data, liability will be restricted to the typical costs and efforts of recovery, which are necessary if regular backups have been made (see § 7 para. 6 of these General Terms and Conditions).
§ 12. Miscellaneous
(1) This contract and all legal relations subsisting between the parties are subject to the law prevailing in the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of fulfilment and sole court of jurisdiction for all disputes arising from this contract is the place of business of C.K. Solution, unless agreed otherwise in the order confirmation.
(3) All agreements that are made between the parties for the purpose of the execution of this contract are stipulated in this contract in writing.
(4) If individual provisions of this agreement are invalid or become invalid, or if they contain loopholes, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision by agreeing on a legally permissible regulation which comes closest to the commercial purpose of the invalid provision or which closes the loophole.