These contractual conditions are part of the initial contract as well as any supplementary and subsequent agreements.
I. General provisions
1. Conclusion of contract
A valid contract is only concluded through an order confirmation from Gäu-Software. Additional and change agreements must always be in writing and must be confirmed in writing by Gäu-Software.
2. Deliveries and services
2.1 Delivery dates are non-binding unless expressly agreed otherwise.
2.2 Gäu-Software is entitled to make partial deliveries or partial services.
2.3 Gäu-Software is entitled to commission third parties to carry out the deliveries and services in whole or in part.
3. Limitation of liability in the event of default in performance
3.1 If Gäu-Software is prevented from delivering the products on time in accordance with the contract or providing services in accordance with the contract on time due to external influences (e.g. due to force majeure, infrastructure failure, traffic disruptions, strikes, lockouts, mobilization, war or delivery disruptions at the manufacturer, supplier or subcontractor), the contract is extended the delivery period changes accordingly.
3.2 If it is entirely or partially impossible for Gäu-Software to fulfill the contract for the reasons stated in Section 3.1, Gäu-Software will be released from its delivery obligation and the customer will be released from its payment obligation.
3.3 If the customer has suffered damage due to a delay in service caused by Gäu-Software, he can claim compensation. This is limited to 1% for each completed week of delay, but a maximum of 5% of the agreed remuneration for the service.
3.4 The customer can withdraw from the contract or terminate the contract if Gäu-Software is in default, the customer has given Gäu-Software a reasonable grace period in writing and under threat of withdrawal or termination and Gäu-Software does not fulfill the grace period has. If Gäu-Software is in default with the delivery of part of the products and the customer can use the other products independently, the customer is only entitled to a corresponding partial withdrawal from the contract.
4. Retention and offsetting
4.1. The customer can only assert a right of retention if it is based on claims from this contract. He is only entitled to offset claims from Gäu-Software if Gäu-Software has acknowledged the claim.
4.2. If the customer is in arrears with the payment of a delivery or service arising from the business relationship, Gäu-Software is entitled to withhold deliveries or services without being obliged to compensate for any damage that may arise.
5. Retention of title
5.1 The products remain the property of Gäu-Software until all claims arising from the business relationship with the customer have been paid.
5.2 The customer may only sell, rent, lease or otherwise dispose of products with the written consent of Gäu-Software, as long as the products are the property of Gäu-Software. In particular, the customer is not entitled to transfer or pledge the products as security.
5.3 The customer must immediately notify Gäu-Software in writing of third-party access to the reserved goods and support Gäu-Software in every way in the intervention. The customer bears the costs for this as well as all uses made for the purpose of maintaining and storing the goods.
6. Terms of payment, late payment
6.1 All prices are exclusive of the VAT applicable on the day of delivery.
6.2 The prices are ex Gäu Software warehouse. Packaging, freight, postage, insurance and installation are charged separately.
6.3 Payments are due upon delivery/service unless otherwise agreed in individual cases.
6.4 Partial deliveries must be paid for by the customer if they can be used independently before the complete delivery.
6.5 Additional services not included in the contract and services for which no remuneration is stated in the contract will be charged by Gäu-Software at the price lists valid on the day of the order.
6.6 If the customer defaults on his payment obligations, he will owe interest of 3% above the respective base interest rate from the time of the agreement or the occurrence of the default. We reserve the right to assert further damages caused by default.
7. Customer Cooperation
7.1. Gäu-Software is only able to provide timely and contractual services if the customer fulfills his obligations to cooperate in a timely manner. The customer is particularly involved in the specification of services and in tests. In addition to the organizational acceptance, the customer will promptly provide Gäu-Software with all information and infrastructure required for Gäu-Software to provide the service in accordance with the contract. In particular, the customer will:
- provide expert staff free of charge, who is able to use the programs and operate them properly
- deliver test data that is suitable to enable rapid program acceptance
- provide a data processing system for test purposes
- make a separate data backup before any work is to be carried out. The customer must be able to restore the data themselves if necessary.
7.2 Any additional costs incurred by Gäu Software as a result of information not being provided on time, incompletely or incorrectly will be borne by the customer.
7.3 If the customer is in arrears with his obligations to cooperate, Gäu-Software can set a reasonable grace period in writing and under threat of termination. If the deadline expires without result, the customer contract can be terminated. The services provided by Gäu-Software up to that point must be remunerated.
8. Acceptance
8.1 Acceptance takes place in accordance with the acceptance declaration and the associated protocols.
8.2 If the work result essentially corresponds to the agreements, the customer must immediately declare acceptance if Gäu-Software had to provide work. Acceptance may not be refused due to insignificant deviations.
8.3 All services provided by Gäu-Software, unless expressly accepted by the customer, are deemed to have been accepted no later than four weeks after provision, unless a significant defect is previously proven. The customer retains the right to claim previously undetected defects within the warranty period.
9. Liability for defects
9.1 The customer can only complain about underperformance and defects as well as immediately recognizable defects within 14 days after the service has been provided.
9.2 A claim for compensation lasts six months.
9.3 If the complaint is justified, Gäu-Software will remedy the defects at its discretion either through free repairs or through a replacement delivery. Gäu-Software reserves the right to provide an interim solution to circumvent the defects until they are finally resolved. If the repair or replacement delivery fails, or if the interim solution does not enable the products to be used essentially in accordance with the contract, the customer can set Gäu-Software a reasonable grace period. If the deadline has expired without result, he can, at his discretion, demand a reduction in the remuneration or cancellation of the contract.
10. Property rights
Gäu-Software assumes liability that the products as such are free of third-party intellectual property rights in the Federal Republic of Germany. If third parties assert legitimate claims based on intellectual property rights, Gäu-Software will, at its discretion and at its own expense, either obtain a license for the customer, modify the product in question free of charge, replace it with one that is free of intellectual property rights or – if these measures are not or only with can be carried out with unreasonable economic effort – take it back without further costs to the customer. Gäu-Software assumes no liability for ensuring that the use of the products sold does not encroach on the intellectual property rights of third parties.
11. Liability of Gäu-Software
11.1 Beyond the claims for compensation expressly regulated in these terms and conditions, Gäu-Software is liable, regardless of the legal basis, only if it is guilty of intent, gross negligence, injury to life, body or health or fraudulent behavior or due to the lack of a guaranteed feature or a for the Liability is legally binding for the obligation that is crucial to achieving the entire purpose of the contract. This also applies to any liability due to negligence when concluding the contract, incorrect advice or instruction, or due to breach of additional contractual obligations.
11.2 Gäu-Software’s liability is limited to contract-typical, reasonably foreseeable damage.
11.3 In any case, liability is limited to a maximum of 5% of the agreed remuneration (excluding VAT).
11.4 Gäu-Software is not liable for gross negligence on the part of vicarious agents if they have violated additional obligations.
11.5 Otherwise, Gäu-Software’s liability is excluded, in particular due to business interruption, loss of profit, loss of information or data.
12. Final provisions
12.1 Should any of the above provisions be or become invalid – regardless of the legal reason – this will not affect the effectiveness of the remaining provisions.
12.2 If the ineffectiveness is not due to a violation of the General Terms and Conditions Act, a provision that comes closest to the economic purpose of the missing or ineffective provision as originally intended by the contractual partners is deemed to have been agreed in place of the missing or ineffective provision.
12.3 The place of jurisdiction for all disputes arising in connection with this contract is Stuttgart.
12.4 With the publication of this version, all previous versions become invalid.
II. Provisions for services
1. Scope of services
III. Software provisions
1. Scope of services
Gäu-Software delivers software packages either electronically (via download) or on data carriers. Costs for data carriers will be invoiced separately. The executable software is delivered in machine-readable form, source code is not delivered. Description of the software and a short operating instructions are part of each package.
2. Rights of use for user software
2.1 Gäu-Software grants the customer the non-transferable, non-exclusive right to use the software provided to him on the systems specified in the contract for the duration of the right of use.
2.2 The customer is not entitled to redistribute, sublicense, lend, publish, sell, assign, rent, market, transfer or otherwise make software products available to third parties. Making copies is only permitted for your own archiving and data backup purposes.
2.3 Further use, e.g. multiple use requires the prior written approval of Gäu-Software.
2.4 The right of use for software is granted for a period of 5 years from delivery, unless a different period of use has been expressly agreed.
2.5 For software products from third parties that Gäu-Software supplies as a licensee, the terms and conditions of the respective licensor also apply.
2.6 Without the prior written consent of Gäu-Software, the customer is not entitled to access software products in any way other than via the user interfaces and/or interfaces provided by Gäu-Software.
3. Transfer of risk
Gäu-Software will replace software products that are lost or damaged during shipping to the customer free of charge. If loss or damage occurs after handover, Gäu-Software will provide replacement and reimbursement of costs. The customer will keep a copy of the latest program version secured against damage or loss.
4. Liability for defects
4.1 In the case of software, the customer is entitled to compensation for defects that do not merely represent insignificant deviations from the organizational or service description.
4.2 Program defects must be reported in writing and described in such detail that it is possible to reconstruct a faulty program sequence.
4.3 The customer makes all programs used by him, including those from third parties, as well as documents available to Gäu-Software in order to correct defects. Gäu-Software can invoice separately for work that goes beyond the aforementioned services or for work that becomes necessary due to program changes.
4.4 Gäu-Software is entitled to replace the products with further developed program versions unless the adoption is unreasonable for the customer, e.g. because the installation would require a significant change to the hardware or software.
4.5 If products are replaced at the customer’s request, Gäu-Software will carry out an installation within the scope of what is technically or economically justifiable against reimbursement of costs.
4.6 There is no claim for compensation if defects cannot be reproduced or are due to the user or third parties not commissioned by Gäu-Software making changes to the software.
5. Customer’s obligation to cooperate
5.1 The customer is obliged to have suitable personnel instructed in the programs and trained in their handling in accordance with Gäu-Software’s recommendations.
5.2 The customer is obliged to regularly back up data.
IV. Provisions for individual software
1. Scope of services
The creation of individual software is a work contract between the customer and Gäu-Software and, in addition to the services from III/1, includes problem analysis, organization and system planning, as well as instruction in the use of the programs. The executable software and the source code become the property of the client.
The above provisions apply accordingly to changes and/or extensions to individual software as well as to adaptations of standard software.
2. Rights of use for individual software
2.1 The customer is entitled to redistribute, sublicense, lend, publish, sell, assign, rent, market, transfer or otherwise make available to third parties software products that were developed for him.
2.2 For software products from third parties that Gäu-Software supplies as a licensee or includes in the individual software, the terms and conditions of the respective licensor also apply.
Chapter III 3 to 5 also apply to individual software
V. Provisions for Hardware
1. Transfer of risk
1.1. The risk for hardware passes to the customer as soon as the goods leave the Gäu-Software warehouse.
1.2. All shipments are insured against transport damage at the customer’s expense. If transport insurance is not desired, the customer must inform this in writing when ordering the goods.
1.3. Transport damage is not covered by Gäu-Software’s liability for defects. Such damage must be reported to the delivery service provider immediately and communicated to Gäu-Software.
Last updated: March 15, 2023