1. General Information
1.1 All transactions with customers are subject solely to the terms and conditions of softgate gmbh, Sections 1 to 14, with effect from the execution start date at the latest. Deviating or supplementary individual agreements, in particular agreements with employees of softgate gmbh, must always be made in writing. Any conditions of the customer diverging from these Terms and Conditions shall not apply, even if softgate gmbh does not expressly contest them or does not do so more than once.
1.2 Following placement of an order, contracts for services/software development shall be entered into by a written order confirmation from softgate gmbh, but at the latest upon execution of the order under the Terms and Conditions of softgate gmbh. In the case of orders for goods/products, the order shall not be accepted until the goods are shipped. Quotations are valid for a maximum of 4 weeks. Any requests for changes shall be deemed rejected unless expressly accepted by softgate gmbh.
1.3 Descriptions and information in brochures, quotations, and written documents may be subject to technical and design variations, and softgate gmbh reserves the right to make performance, construction, development, and material changes as a result of technical progress, without the customer being able to derive any rights from this.
1.4 softgate gmbh may transfer contractual services to third parties in whole or in part, in particular if services fall within the remit of specialists or if the service includes purchased components. softgate gmbh is free to choose subcontractors or suppliers and is liable for the proper selection of said contractors or suppliers and for their actions or omissions.
2. Transfer of Risk, Execution, Dates, Withdrawal
2.1 The risk shall pass to the customer as soon as the service provided by softgate gmbh has been accepted by the customer.
2.2 Unless otherwise agreed in the order, delivery by softgate gmbh shall be free of charge.
2.3 If softgate gmbh becomes aware of irregular payment transactions or an economic deterioration in the customer’s business, e.g., bankruptcy or settlement proceedings, softgate gmbh may, at its discretion, deliver cash on delivery or against prepayment. softgate gmbh is entitled to make partial deliveries if agreed in the order.
2.4 Dates are approximate and shall only be binding if expressly guaranteed in writing, but are subject to proper and timely incoming deliveries to softgate gmbh; delivery periods shall only commence after the clarification of all execution details, but no earlier than the date of order confirmation by softgate gmbh and the settlement of any agreed payment on account. They shall be extended in the event of force majeure, e.g., strikes, lockouts, subsequent material shortages, import and export restrictions, or similar unforeseeable events that subsequently make performance significantly more difficult or impossible for softgate gmbh or its suppliers, to cover the period of the hindrance including a reasonable recovery period. softgate gmbh may also withdraw from that part of the contract that has not yet been fulfilled. If softgate gmbh does not explain itself upon request, the customer shall only have a right of withdrawal. In the event of untimely or improper incoming deliveries to softgate gmbh, softgate gmbh may withdraw in whole or in part without being liable for damages. If the customer is in default, all dates shall be extended by the period of the delay plus a reasonable recovery period. In the event of default by softgate gmbh, the customer may withdraw after a reasonable grace period that was set in writing, unless the goods have already been dispatched or execution has taken place by the end of the grace period. Except in cases of intent and gross negligence, claims for damages due to default against softgate gmbh shall be excluded.
2.5 If the contract is terminated by withdrawal for any reason whatsoever, softgate gmbh shall be entitled to appropriate compensation for use (license analogy) of the software it provided for the customer, for the duration of the provision.
3. Fulfillment Requirements
3.1 The customer must provide softgate gmbh with all necessary execution documents in good time and must provide softgate gmbh with all the information necessary and useful for the execution of the order on an ongoing basis in writing, as well as approve partial services as required.
3.2 Sketches, illustrations, diagrams, drawings, and design and performance details that softgate gmbh uses as the basis for its quotations or order confirmations are approximate only and are subject to the usual tolerances. The customer reserves the right to make changes to the execution. They must be communicated to softgate gmbh in writing and shall be taken into account to the extent possible in the subsequent performance of the contract. If additional services arise in connection with changes, they are to be remunerated separately on the price basis of comparable items, or, if there are no such comparable items, reasonably at the customary level.
4. Prices, Payments
4.1 Unless otherwise agreed, the general list prices (plus applicable VAT) of softgate gmbh in Erlangen apply. If delivery is agreed within 4 months, the price valid on the day the contract is concluded shall apply. Price changes are permissible if there are more than 4 months between the conclusion of the contract and the delivery date; the price valid on the day of delivery shall then apply. Price increases are permitted at most to the extent of interim cost increases, but only within a reasonable framework that takes into account the relationship between performance and consideration. If the price increase exceeds 5%, the customer may withdraw from the contract within 2 weeks of the price increase notification by means of a written declaration insofar as the services to be provided under the contract are affected by the price increase.
4.2 Our deliveries and services are payable net immediately after the invoice date (checks shall only be accepted subject to clearance). Deliveries abroad shall only be made against a confirmed letter of credit. If bills of exchange are accepted in exceptions, the payment deferral shall apply only on the condition that the customer’s economic circumstances do not deteriorate. For work and services, softgate gmbh may charge up to 90% of the total price based on the degree of completion.
4.3 In the event of default in payment, softgate gmbh shall charge default interest of 8% p.a. above the applicable base interest rate of the European Central Bank. The default interest shall be set higher or lower if softgate gmbh proves the cost of the arrears justifies a higher interest rate or the customer proves a lower interest rate is justified.
In the event of late payment or bankruptcy or settlement proceedings, suspension of payments, or deterioration of the customer’s economic situation, softgate gmbh may immediately assert all outstanding claims arising from the business relationship.
4.4 Offsetting by the customer is only permissible with undisputed or legally established claims.
5. Reservation of Ownership
5.1 softgate gmbh shall retain ownership of the goods, services, standard software, or custom software (hereinafter referred to collectively as “goods”) until full payment has been made. This shall also apply if individual claims or all claims have been received in a current account and the balance is deemed recognized. If, in exceptions, liability for bills of exchange or check on the part of softgate gmbh is justified in the so-called check/bill of exchange procedure, the reservation of ownership shall not expire before the bill of exchange accepted by the customer is redeemed.
5.2 The customer may only resell the goods in regular business transactions and only in cash or under reservation of ownership. softgate gmbh’s goods must be excluded from assignments of entire inventories as security. In the event of foreclosure, softgate gmbh must be notified immediately in writing. If goods from softgate gmbh are combined or inseparably mixed or blended with other movable items to form a single item and if the other items are to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to softgate gmbh proportionally, insofar as the customer owns or acquires ownership of the single item.
5.3 The processing of the goods by the customer shall be carried out on behalf of softgate gmbh, but without placing softgate gmbh under any obligation and excluding the acquisition of ownership under Section 950 of the German Civil Code (BGB). softgate gmbh shall remain the owner of the resulting items, which shall serve as goods under reservation of ownership to secure its claims. If goods are processed together with third-party goods, softgate gmbh shall have co-ownership of the new item as a ratio of the value of its goods to the goods processed by third parties at the time of processing (extended reservation of ownership).
5.4 If softgate gmbh goods are resold before full payment is made, irrespective of whether they are resold together with third-party items or in a processed state, the customer must pass on softgate gmbh’s reservation of ownership. In addition, the customer hereby assigns to softgate gmbh all claims to which the customer is entitled against its buyers from the resale now or in the future with ancillary rights in the amount of softgate gmbh claims. If softgate gmbh’s own goods are combined or mixed with third-party goods, the assignment of claims shall apply only in proportion to the value of the third-party goods sold with them. The customer shall remain entitled to collect receivables in its own name. The customer must transfer the proceeds from the resale of softgate gmbh goods to softgate gmbh immediately, insofar as softgate gmbh claims are or become due. If the customer suspends payments, applies for bankruptcy/settlement proceedings, or fails to fulfill its obligations, its authorization to resell the goods under reservation of ownership and to collect receivables from customers shall expire automatically and shall be transferred to softgate gmbh.
5.5 In order to enforce the rights of softgate gmbh from the extended reservation of ownership against the customer’s buyers, the customer shall, on request, provide softgate gmbh with the necessary documents and information, e.g., from its business books. If the customer does not make a cash payment immediately after a reminder in the event of breaching the contract, in particular in the event of default in payment, it must return the softgate gmbh goods without objection. softgate gmbh may remove its goods under reservation of ownership and also enter the customer’s warehouse and business premises for this purpose. The customer shall bear the take-back costs. softgate gmbh may dispose of the goods taken back as it sees fit and to its best advantage. If the value of existing securities in softgate gmbh’s favor exceeds its receivables by more than 20% or if receivables are to be assigned to softgate gmbh amounting to more than 125% of softgate gmbh’s own receivables, softgate gmbh shall be obligated to release securities of its choice upon request.
6. Warranty, Indemnification, Liability
6.1 For hardware, the warranty shall:
a) apply for the duration of the warranty of softgate gmbh suppliers from the transfer of risk on the basis of single-shift operation;
b) objectively guarantee the goods are free from defects in accordance with the state of the art;
c) legally assign softgate gmbh’s own warranty claims against softgate gmbh suppliers to the customer, who shall hereby accept said assignment. However, if the customer is unable to realize the claims assigned to it, it shall be entitled to claim rectification or replacement delivery from softgate gmbh at its discretion. Defective parts or devices, including those that arise as a result of defects in other parts or devices in the delivered goods, shall be immediately corrected by softgate gmbh, using new replacement parts if necessary. Transport costs arising from this shall be borne by softgate gmbh. softgate gmbh shall be entitled to the damaged and/or replaced parts and objects. At its discretion, the customer may only demand rescission (= cancellation of the contract) or reduction (= reduction of remuneration) if replacement delivery or multiple attempts at rectification have failed. The warranty shall be invalidated
a) if the devices are not properly installed or used by the customer or are connected to or installed in unsuitable parts, e.g., those not originating from softgate gmbh;
b) in the event of natural wear and tear (e.g., to fuses, printing blankets, ink ribbons, etc.) or in the event of improper exposure and incorrect operation;
c) in the event of damage in connection with repairs or other work by third parties.
Claims for damages due to the absence of guaranteed properties shall be excluded unless there is intent or gross negligence on the part of softgate gmbh. All defects must be reported immediately in writing, namely obvious defects after delivery, hidden defects after discovery, in each case with a specific error report (e.g., operating and environmental conditions, last entries). Rejected goods must be sent to softgate gmbh. If this is not possible, softgate gmbh may carry out detailed investigations, including inspection. If the customer makes a complaint about goods, it shall only have a right to retain the purchase price of the item or part that is the specific object of the complaint.
6.2 softgate gmbh takes due care when creating software. According to the state of the art, errors in programs cannot be ruled out, even if great care is taken. Uninterrupted and error-free operation and complete elimination of possible program errors cannot be guaranteed. Reproducible errors that occur shall be corrected under the warranty. If reproducible errors are nevertheless impossible to correct, softgate gmbh shall apply a temporary error correction based on the customer’s written error report and shall attempt to develop an alternative. However, if a program does not comply with the expressly agreed specifications and if compliance cannot be achieved within a reasonable grace period, preventing the customer from using the program at all, the customer shall be entitled to return the program. The customer is solely responsible for the selection of programs, their installation and use, and for the results achieved. Any liability for the marketability and usability of programs for a particular purpose is excluded, as is liability for such programs that are used in connection with other programs not purchased from softgate gmbh or not approved in writing by softgate gmbh or that have been changed without the written consent of softgate gmbh. Any liability for loss of data is also excluded. The warranty shall not apply in the event of force majeure.
6.3 Warranty for programs, data carriers and services, limitations of liability
softgate gmbh warrants for a period of 6 months from the date of delivery that each unmodified program will fulfill the functions described in the documentation and will not contain errors that negate or reduce the program’s usability. softgate gmbh guarantees that cartridge tapes, disks, or other data carriers are free from material and manufacturing defects in normal use. This warranty is valid for a period of 90 days.
softgate gmbh guarantees that its technical services, training services, and consulting meet the generally accepted industry standard. softgate gmbh does not guarantee that the programs will meet all customer requirements or that the functions contained therein will run uninterrupted and error-free in a combination selected by the customer. Liability for licensing programs that have not yet been released and are licensed separately by contract is excluded (BETA software).
Liability shall be limited to the maximum amount according to the corresponding softgate gmbh liability insurance sum, unless claims for damages are based on intent or gross negligence. softgate gmbh shall disclose the current amount of liability cover immediately upon request.
6.4 softgate gmbh shall defend the customer against claims alleging that the programs infringe copyright, trademarks, or patent rights, provided that:
– the customer informs softgate gmbh in writing of the claim within 30 days,
– softgate gmbh retains the right to legal defense and settlement negotiations, and
– the customer provides softgate gmbh with the information and support required for the legal defense and gives softgate gmbh the appropriate power of attorney.
The indemnity shall not apply if the infringement is based on outdated or altered programs and the infringement could have been avoided by using a current, unaltered version of the programs that softgate gmbh supplies to its customers. If the programs infringe rights, or softgate gmbh considers them to infringe rights, softgate gmbh may, at its own discretion and expense:
– change the programs so that they no longer infringe rights, or
– obtain a license for the customer to continue using the program.
If neither option is financially viable, softgate gmbh is entitled to terminate the license for the program and refund the license fee to the customer. Section 6.4 constitutes final regulation of the full extent of indemnity and the customer’s claim.
7. Acceptance
Even without formal acceptance, the services provided by softgate gmbh shall be deemed accepted at the latest when the customer puts them to use or uses them in the broadest sense. In the case of special developments, softgate gmbh must obtain evidence of acceptance by means of acceptance testing. If the customer does not confirm acceptance or issue a list of defects within 30 days after the start of acceptance testing, the service shall be deemed accepted.
8. Premature Contract Termination for Work and Services
8.1 Both parties may only terminate the contract early for good cause. In the event of termination by the customer due to reasons attributable to softgate gmbh, softgate gmbh shall only be entitled to payment for the services provided up to termination. If softgate gmbh terminates the contract for reasons attributable to the customer, it shall be entitled to the full contractual remuneration, subject to the deduction of expenses saved and benefits obtained. Expense savings shall be calculated at a flat rate of 20% of the remuneration payable for outstanding services, unless the customer can prove a higher percentage.
8.2 Good cause for extraordinary termination by softgate gmbh shall be in particular a) repeated default in payment by the customer or a significant deterioration in the customer’s economic situation, in particular the initiation of insolvency proceedings, foreclosure, etc. against the customer or companies affiliated with the customer under company law or within the group; b) a repeated breach of the customer’s contractual obligations despite a written warning.
9. Term and Termination of Continuing Contracts
Continuing contracts are contracts with an initial minimum term of one year, e.g., maintenance contracts. Both parties shall have an ordinary right of termination for the first time at the end of this period. The notice period for this shall be three months. Notice of termination must be given in writing; the customer shall bear the risk of receipt. This shall not affect the right to extraordinary termination for good cause. Good cause for extraordinary termination by the customer may only be: Force majeure, permanent cessation of the customer’s business operations, and other extremely serious reasons of an equivalent nature. This shall not include purely economic reasons concerning the customer or reasons relating to the restructuring of business divisions or a transfer of undertakings. Any buyer shall fully assume the rights and obligations. On the part of softgate gmbh, good cause for extraordinary termination shall include a significant deterioration in the customer’s financial situation, breach of contract, termination at short notice by softgate gmbh’s upstream suppliers, on whom the provision of services depends in whole or in part, for any reason whatsoever, and force majeure. Notice of extraordinary termination must be given in writing without undue delay. Continuing contracts shall be renewed automatically for another year without requiring any action. Either party may terminate such contracts on an ordinary basis three months before the contract ends.
10. Copyright
All programs purchased by the customer from softgate gmbh that are protected by copyright can only be obtained and used by the customer after signing a software license agreement. Granting of sublicenses requires the written consent of softgate gmbh. All data carriers handed over to the customer by softgate gmbh for the programs as well as any copies of programs and documentation made by the customer (subject to softgate gmbh’s written consent) shall remain the property of softgate gmbh. The customer must attach a copyright notice to copies of softgate gmbh’s programs and documentation and must take all necessary precautions to protect the secrecy of softgate gmbh programs against third parties.
11. Data Protection, Secrecy
11.1 The documents, knowledge, and experience shared with the other contracting party must only be used for the respective purpose of the contract on the specific service to be provided. They must not be made accessible to third parties unless they are to be made accessible to third parties under their terms or are already known to third parties. Third parties are not affiliated companies, auxiliaries, such as freelancers, subcontractors, etc. engaged to perform the particular contractual relationship, for whom the contracting party is liable, however.
11.2 In addition, the contracting parties agree to maintain confidentiality with regard to all contract content and the knowledge gained during contract execution.
11.3 The obligation to maintain secrecy shall continue to apply after the contractual relationship is terminated.
11.4 If a contracting party so requests, the documents and data it has handed over shall be returned to it after the contractual relationship ends or shall be destroyed insofar as the contracting party is unable to assert a legitimate interest in these documents.
11.5 Within the framework of their organizational sovereignty, both contracting parties shall ensure adequate data protection, in particular compliance with the applicable regulations as currently amended.
11.6 On request, separate privacy statements, confidentiality statements, or non-disclosure agreements shall be drawn up. softgate gmbh expressly excludes a blanket compensation arrangement or the imposition of flat-rate contractual penalties. softgate gmbh shall be liable within the framework of the general liability regulations set out in these Terms and Conditions and in accordance with the statutory regulations, unless these have been effectively excluded.
12. Mention of Customer Names
softgate gmbh may state the customer’s name on the softgate gmbh website or in advertising brochures in the usual way in the industry. Mention shall be limited to the company name and, if applicable, the company headquarters. The content of the business relationship shall not be mentioned. However, the name of the customer may be assigned to individual business areas of softgate gmbh. The customer may expressly object to this at any time with effect for the future. A reference customer agreement shall explicitly require separate regulation.
13. Place of Performance, Jurisdiction, Applicable Law
The place of performance is Erlangen. Pursuant to Section 38 et seq. of the German Code of Civil Procedure (ZPO), the place of jurisdiction is Nuremberg. The law of the Federal Republic of Germany shall apply exclusively to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods (Art. 6 CISG).
14. Partial Nullity
Should individual provisions be or become void, ineffective, or contestable, the remaining conditions shall remain unaffected and must then be interpreted or supplemented retroactively in such a way that the intended economic purpose is achieved as precisely as possible in a legally permissible manner. This also applies to any loopholes that may need to be closed.

Last revised: 07/2015

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