General terms and conditions
of softgate GmbH information technology services
|Scope of application
|These General Terms and Conditions (GTC) apply to all our business relationships with our customers. The GTC only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity, otherwise such deviating terms and conditions shall be deemed to be objected to.
|In the event of any ineffectiveness or effective modification of individual provisions, the remaining provisions of our terms and conditions remain effective.
|Individual agreements made with the customer in individual cases, including subsidiary agreements, supplements or amendments, in particular with the employees of softgate GmbH, must always be in writing. Subject to proof to the contrary, our written order confirmation to the customer is decisive for the content of such an agreement.
|Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
|Conclusion of contract
|Our offers are non-binding and are valid for 4 weeks. By placing an order, the customer makes a binding offer to enter into a contract under the terms and conditions set out in our non-binding offer letter. The contract for services/software development shall only come into effect through our written order confirmation, at the latest, however, through execution performance. In the case of orders for goods/products on account, acceptance of the order shall not take place until the goods have been dispatched, unless otherwise agreed (e.g. advance payment). All possible ancillary agreements as well as subsequent supplements and amendments require written confirmation by us. Any requests for changes are deemed to be rejected if softgate GmbH does not expressly accept them.
|If the customer has been provided with documents in connection with the order, in whatever form, e.g. calculations or drawings, softgate GmbH reserves the property rights and copyrights to these documents. The documents may not be made accessible to third parties unless express prior written consent has been given.
|Technical and design deviations from descriptions and information in brochures, offers and written documents as well as changes in performance, design, development and material in the course of technical progress are reserved without the customer being able to derive any rights from this.
|softgate GmbH may have contractual services performed in whole or in part by third parties, especially if services fall within the scope of special experts or the service contains purchased components. softgate GmbH is free to choose the subcontractors or suppliers and is liable for their correct selection and for their actions or omissions in compliance with § 12 of these GTC.
|A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded.
|Transfer of risk, execution, deadlines, withdrawal
|The specified performance deadlines and dates shall be deemed approximate unless they are designated as fixed. Failure to comply with performance dates and deadlines shall entitle the customer to assert the rights to which it is entitled only after it has set us a reasonable grace period in writing. The performance periods shall be extended by the period of time during which the customer fails to perform the performance and cooperation activities incumbent upon him in due time. Partial performance is permissible.
|Delivery and transfer of risk shall be “ex works” (Incoterms® 2020), which is also the place of performance for the delivery/service provision and any subsequent performance. By agreement and at the expense of the customer, the goods may be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. We reserve the right to have the goods delivered by our own delivery organization. In the case of a mail order purchase, the risk shall pass to the customer upon handover to the carrier, at the latest as soon as the consignment leaves our premises. Should the contract provide for acceptance by the customer, the risk shall pass to the customer at the latest upon acceptance of the work.
|Our obligation to perform is subject to the proviso that we ourselves are supplied punctually and correctly by our sub-supplier, unless we have culpably caused the non-timely or incorrect supply by the sub-supplier. If we are unable to meet binding performance deadlines for reasons for which we are not responsible (non-availability of the performance), we shall inform the customer of this without delay and at the same time notify the customer of the expected new performance deadline. If the service is also not available within the new period, we are entitled to withdraw from the contract in whole or in part and will immediately refund any consideration already paid by the customer. Non-availability of the service shall be deemed to exist, for example, in the event of non-timely self-delivery by our supplier, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obliged to procure in the individual case.
|Unforeseeable, unavoidable, extraordinary events such as industrial disputes, sovereign measures, official decrees, discontinuation of import or export possibilities, significant operational and traffic disruptions, strikes, floods, fire, theft, pandemics, riots, armed or terrorist conflicts, etc. shall release us from the delivery/service obligation to the full extent for the duration of their effects or in the event of impossibility and shall entitle us to withdraw from the contract without the customer accruing damages or other claims. An automatic termination of the contract is not associated with this. This also applies if these circumstances occur with the upstream supplier. We shall inform the customer immediately of the beginning and end of such obstacles. The customer may request us to declare within a reasonable period of time whether we intend to withdraw from the contract due to the impediment or to perform within a reasonable period of time.
|The customer is obliged to support softgate GmbH in the provision of the contractual services in an appropriate manner and with suitable means. The customer must create the necessary conditions (hardware, software and workstation) for the provision of the service. Delays due to the lack of or delayed cooperation are not the responsibility of softgate GmbH. In particular, the customer must provide softgate GmbH with all necessary execution documents in a timely manner and provide softgate GmbH with all necessary and useful information for the execution of the order in writing on an ongoing basis, as well as declare the releases required for partial services.
|If the customer is in default of acceptance, fails to cooperate or delays our performance for other reasons for which the customer is responsible, all deadlines shall be extended by the duration of the delay plus a reasonable restart time; in addition, we shall be entitled to demand compensation for the resulting damage including additional expenses (such as withholding of labour and technical resources, lost orders, etc.). If the omitted cooperation is not made up for after the declared readiness to perform and request with a reasonable deadline, we are entitled to demand a lump-sum compensation in the amount of 0.3 % of the order price per calendar week, beginning with the expiry of the deadline set for the performance of the omitted act of cooperation. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum. Further claims based on the breach of the duty to cooperate, in particular for termination and statutory or individual contractual claims for compensation, shall remain unaffected. The lump sum shall be offset against any further claims for compensation and indemnification.
|If softgate GmbH becomes aware of irregular payment transactions or an economic deterioration on the part of the customer, softgate GmbH may demand advance performance on the part of the customer and make its delivery/service dependent on payment of the remuneration by cash on delivery or cash in advance.
|If the contract is cancelled by rescission, for whatever reason, softgate GmbH is entitled to appropriate compensation for use (licence analogy) for the software provided by softgate GmbH to the customer for the duration of the provision.
|The customer is obliged to support softgate GmbH in the provision of the contractual services in an appropriate manner and with suitable means. The customer must create the necessary conditions (hardware, software and workstation) for the provision of the service. Delays due to the lack of or delayed cooperation are not the responsibility of softgate GmbH. The customer is responsible for proper data backup. In particular, the customer must provide softgate GmbH with all necessary execution documents in a timely manner and provide softgate GmbH with all information necessary and useful for the execution of the order in writing on an ongoing basis, as well as declare the releases required for partial services. For this we charge a lump sum compensation in the amount of 0.5% of the order value. 0.5% of the purchase price for non-accepted goods per calendar week, beginning with the end of the call period or with the delivery deadline or – in the absence of a call or delivery deadline – with the notification that the goods are ready for dispatch. The proof of a higher damage and our legal claims (in particular to payment of the goods not accepted despite request, termination, compensation for additional expenses, reasonable compensation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned lump sum.
|Sketches, illustrations, diagrams, drawings, construction and performance data on which softgate GmbH bases its offers or order confirmations are only approximate and are understood to be within the usual tolerances. Should the customer have any change requests after the conclusion of the contract, these must be communicated to softgate GmbH in writing. However, the change requests can only be taken into consideration in the further execution of the contract if possible and only in the case of an explicit written confirmation. If additional services are required in connection with changes, they are to be remunerated separately on the price basis of comparable positions and, if such are missing, appropriately according to customary practice.
|Prices and terms of payment
|Subject to deviating agreements, the general list prices (plus applicable VAT) of softgate GmbH apply ex Erlangen. If delivery is agreed within 4 months, the price valid on the day of the conclusion of the contract shall apply. Otherwise, the price valid on the day of delivery shall apply.
|In the case of ongoing business relations, continuing obligations as well as long-term delivery obligations at the fixed prices, the price adjustments are permissible as follows: the prices included in our offer are calculated on the basis of our purchase prices for products, materials and energy as well as labour costs at the time of the preparation of the offer. In the event of price changes within the named cost items, both contracting parties shall have the right to demand an adjustment of the contractually agreed prices at their reasonable discretion in accordance with § 315 BGB. When determining the price adjustment, the cost increases may only be taken into account if countervailing cost reductions are taken into account.
|Our invoices are due for payment immediately. If payment is not made within 30 days of the invoice date, interest shall be charged on the claim from this point in time at the applicable statutory default interest rate. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. In the case of work and services, softgate GmbH may invoice up to 90% of the total price in accordance with the progress of the work.
|The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter rights shall remain unaffected.
|If, after conclusion of the contract, there is a significant deterioration in the financial circumstances of the customer which gives rise to fears that payment will be jeopardized, or if such circumstances, which already existed before conclusion of the contract, only become known subsequently, further deliveries shall only be made against payment in advance, cash on delivery or the provision of security. The same shall apply if the customer is in default of payment for earlier deliveries. Furthermore, in this case we can demand immediate payment of all outstanding invoices from the business relationship, even if the invoice amounts were previously deferred in whole or in part or paid by bill of exchange.
If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the customer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
|Retention of title
|Until full payment of all our present and future claims arising from the purchase/workcontract and an ongoing business relationship (secured claims), we retain title to the delivered goods.
|The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
|In the event of breach of contract by the customer, in particular in the event of non-payment of the purchase price/remuneration due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
|Until revoked in accordance with (c) below, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authority to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
|Insofar as a material defect exists, the customer shall be entitled to the following material defect claims:
In the case of purchase contracts and contracts for work and services (Werkverträge), the right to subsequent performance exists; in this case, softgate GmbH decides at its own discretion whether subsequent performance is to be effected by remedying the defect or by new delivery or production. The interests of the customer shall be taken into account appropriately. In addition, there is the right to a reduction of the remuneration or to withdraw from the contract, insofar as legal requirements exist.
In the case of tenancy agreements (continuing obligations with ongoing transfer remuneration) and if the legal requirements are met, there is the right to reduce an ongoing remuneration or to terminate the agreement.
The liability provisions of § 12 shall apply to the customer’s claims for damages and/or reimbursement of expenses due to material defects.
|The customer has no claims for material defects
(a) if the sold devices are not set up or used properly by the customer or are connected to or installed in unsuitable parts, e.g. parts not originating from softgate GmbH;
(b) natural wear and tear (e.g. fuses, blankets, ink ribbons, etc.), improper use and incorrect operation;
(c) in the event of an only insignificant deviation from the agreed scope of services and functions;
(d) insofar as a defect is due to improper use, in the case of non-reproducible defects which cannot be proven by the customer in any other way, as well as in the case of damage caused by a subsequent modification by the customer or third parties which has not been approved in writing by softgate GmbH, and
(e) in the event of damage in connection with repairs or other work by third parties.
|The customer must notify softgate GmbH in writing of any defects in a comprehensible and detailed form, stating all information that is useful for the identification and elimination of the defect. In the case of software, in particular the work steps that led to the occurrence of the defect, the effects as well as the appearance of the defect must be stated.
|In the case of purchase contracts, the customer’s claims for defects presuppose that he has complied with his statutory duties of examination and notification (§§ 377, 381 HGB). In particular, the notification must be made in writing immediately after delivery in the case of obvious defects and immediately after their discovery in the case of hidden defects.
|To the extent permitted by law, claims based on material defects shall become statute-barred within one year of handover in the case of purchase contracts, within one year of acceptance in the case of contracts for work and services, otherwise in accordance with the statutory provisions.
|If a third party asserts against the customer that a service provided by softgate GmbH violates his rights, the customer must immediately notify softgate GmbH in writing. Upon request, the customer will grant softgate GmbH all powers of attorney and authority necessary to defend the customer against the asserted rights of third parties.
|Softgate GmbH takes due care in the creation of software. According to the state of the art, errors in programs cannot be ruled out even when the greatest care is taken. An uninterrupted and error-free operation as well as the complete elimination of possible program errors cannot be guaranteed. Any reproducible errors that occur will be corrected within the scope of the warranty. If reproducible errors still cannot be corrected, softgate GmbH will apply a temporary error correction based on the customer’s written error report and will attempt to develop a workaround. However, if a program does not meet the expressly agreed specifications and if it is not possible to achieve this within a reasonable period of time, so that the customer cannot use the program at all, the customer is entitled to legal rights, in particular to termination or withdrawal. The responsibility for the selection of programs, their installation and use as well as for the results achieved lies exclusively with the customer. Any liability for the marketability, efficiency in a specific business area, usability of programs for a specific purpose envisaged by the customer or within the specific business organization, unless an individual solution is expressly owed, is excluded, as is liability for such programs that are used in conjunction with other programs not obtained from softgate GmbH or not approved in writing by softgate GmbH or that have been modified without the written consent of softgate GmbH.
|Even without formal acceptance, the services provided by softgate GmbH are considered accepted at the latest at the point in time at which the customer takes them into regular use or uses them as intended. In the case of special developments, softgate GmbH will prove acceptance by means of an acceptance test. If the customer does not send the acceptance confirmation or a list of defects within 30 days after the start of the acceptance test, the service is deemed to have been accepted.
|Early termination of contract for work and services
|Both parties may only terminate prematurely for good cause. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In the event of termination by the customer for which softgate GmbH is responsible, softgate GmbH is only entitled to payment for the services provided up to the time of termination. In the event that softgate GmbH terminates the contract for reasons for which the customer is responsible, softgate GmbH is entitled to the entire contractual payment, however, after deduction of saved expenses and benefits gained. The saved expenses will be set at a flat rate of 20% of the remuneration due for the outstanding services, unless the customer can prove a higher percentage.
|Good cause for extraordinary termination by softgate GmbH includes in particular a) repeated default of payment by the customer or a not insignificant deterioration of the customer’s economic situation, in particular the initiation of insolvency proceedings, compulsory enforcement, etc. against the customer or companies associated with the customer under company law or in a group; b) repeated breach of contractual obligations to cooperate by the customer despite written warning.
|Term and termination of permanent contracts
|Permanent contracts are those contracts with an initial minimum term of one year, e.g. maintenance contracts etc. are automatically extended by another year without the need for a declaration. Ordinary termination is possible for both parties three months before the end of the contract. Notice of termination must be given in writing. The right to extraordinary termination for good cause remains unaffected. Purely economic reasons of the customer and reasons for the reorientation of business fields do not constitute important reasons for termination. On the part of softgate GmbH, important reasons for extraordinary termination include in particular a significant deterioration of the customer’s financial situation, behaviour contrary to the contract, termination at short notice of softgate GmbH’s upstream suppliers on whom the provision of services is wholly or partially dependent, for whatever reasons, and force majeure. An extraordinary termination must be made immediately and in writing.
|The customer undertakes to refrain from doing anything that is likely to impair the rights of softgate GmbH. The customer is liable for infringements of the rights of third parties to whom he grants access to the protected services, unless the customer proves that he is not responsible for these infringements.
|Programs provided to the customer by softgate GmbH may not be modified, translated or converted from machine/object code to source code without the prior written consent of softgate GmbH. § 69e UrhG remains unaffected, whereby the customer will inform softgate GmbH which parts of the original program he intends to decompile. softgate GmbH may charge a reasonable fee for granting access to the information or decompiling.
|The granting of sub-licences requires the written consent of softgate GmbH. The customer must provide backup copies of softgate GmbH’s programs and documentation with a copyright notice and must ensure the protection of softgate GmbH’s programs against unauthorised access by third parties by taking appropriate precautions.
|Secrecy, security measures
|The documents, knowledge and experience provided to the other contracting party may only be used within the scope of the respective purpose of the contract for the specific service to be provided. They may not be made accessible to third parties unless they are to be made accessible to third parties according to their provisions or are already known to third parties. Third parties are not the affiliated companies, auxiliary persons such as freelancers, subcontractors etc. called in for the performance of the specific contractual relationship, but for which the contracting party is liable.
|Furthermore, the parties shall maintain confidentiality about all contents of the contract and about the knowledge gained during the execution of the contract.
|The confidentiality obligation shall continue to apply in terms of time even after the termination of the contractual relationship.
|If a contracting party so requires, the documents and data handed over by it shall be returned to it after termination of the contractual relationship or destroyed, insofar as the contracting party cannot assert a justified interest in these documents.
|Within the scope of their organisational sovereignty, both contracting parties shall ensure sufficient data protection, in particular compliance with the applicable regulations in the currently valid version.
|The customer shall regularly maintain his IT systems and take appropriate security measures to secure their own data according to the state of the art as well as to avoid possible security risks when using products of softgate GmbH. In particular, access rights must be carefully administered and suitable passwords and up-to-date anti-virus software must be used.
|The liability of softgate GmbH for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 12, insofar as culpability is relevant in each case. The limitations of this § 12 do not apply to the liability of softgate GmbH for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act (Produkthaftungsgesetz).
|Softgate GmbH shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are obligations the fulfilment of which characterises the contract and on which the contractual partner may rely.
|Insofar as softgate GmbH is liable for damages on the merits in the event of simple or gross negligence, this liability shall be limited to damages which softgate GmbH foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage which are the result of defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
|In the event of liability for simple negligence, softgate GmbH’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 250,000.00 per damaging event and EUR 1,000,000.00 in total, even if a breach of material contractual obligations is involved.
|The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of softgate GmbH.
|Insofar as softgate GmbH provides information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
|The customer may only withdraw or terminate due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
|In case of loss of data, softgate GmbH is only liable for the effort required for the recovery of the data in case of proper data backup by the customer. In the case of simple negligence on the part of softgate GmbH, this liability only applies if softgate GmbH has simultaneously violated an essential contractual obligation with the action leading to the loss of data. This limitation of liability under § 12 para. 8 p. 1 does not apply if softgate GmbH has expressly undertaken towards the customer to carry out the data backup.
|Notwithstanding § 438 para. 1 no. 3, § 634a para. 1 no. 1 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance. Special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1 and no. 2, para. 3, §§ 444, 445b, 634a para.1 no.2 and no. 3, para. 3 BGB) shall remain unaffected.
|The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer based on intentional or grossly negligent conduct or due to injury to life, limb or health as well as claims under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
|Place of performance, place of jurisdiction, applicable law
|The place of performance for the services owed by both parties under the contract shall be Erlangen.
|If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes, including actions on cheques and bills of exchange, shall be Nuremberg. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected. The legal relationship between softgate GmbH and the customer is exclusively governed by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. In case of doubt, the Incoterms® 2020 shall be decisive for the interpretation of commercial clauses.
|Should individual provisions be or become void, ineffective or contestable, the remaining conditions shall remain unaffected and shall then be interpreted retroactively or supplemented in such a way that the intended economic purpose is achieved as accurately as possible in a legally permissible manner. This also applies to any loopholes that may need to be supplemented.
The English version is used for understanding in international legal relations. In case of doubt, the German version applies.
Legal Status: October 2022