General Terms and Conditions of softgate gmbh, Erlangen, Germany

1. Preface

All commercial operations with customers and partners are governed exclusively by the following general terms and conditions of softgate gmbh. Any dissenting or ancillary agreements, also with any softgate gmbh staff, require text form. Dissenting customers’ terms and conditions are not valid, even if softgate gmbh does not contradict explicitely. Older versions of the softgate gmbh general terms and conditions are herewith replaced.
Conclusion of contracts concerning services/software development takes effect after customers’ order with written confirmation of the order by softgate gmbh, or at least with execution of the order governed by these general terms and conditions. Contracts concerning goods/products are only accepted with dispatch of the goods. All offers are subject to confirmation. All changes of contract or offers for a contract are contradicted, even if softgate gmbh does not contradict explicitely. Insofar § 362 HGB (German Commercial Code) is waived.
Technical and creative variations of descriptions and specifications in brochures, offers and other written documents and changes of service, construction, development and material according to technical advances, are reserved.
softgate gmbh is allowed to assign contractual services in part or in whole to third parties, especially if services are part of a specialists’ field of functions. softgate gmbh may choose contractors and is liable for the choice, the contractors’ actions and neglect according to softgate gmbh’s terms of liability.
Non-enticement-clause: The customer/partner obligates himself not to entice any staff of softgate gmbh for the time of cooperation and one year after the end of that cooperation. Neither will the customer/partner employ any softgate gmbh staff without the written consent of softgate gmbh for that period of time. In case of breach of the non-enticement-clause the customer/partner obligates himself to pay a contractual penalty that will be determined by softgate gmbh and – in case of clash – will be subject to verification by court.
All intellectual property (especially software) will be owned by softgate except the contract with the customer rules it in express conditions.
2. Transfer of risk, execution, delivery times, rescission

Risk transfers to the customer/partner by his acceptance of softgate gmbh’s service.
All deliveries are free buyer’s address unless agreed differentely.
In case of softgate gmbh learning about customer’s arrears in payment or any economic deterioration, e.g. application for a composition or file for bankruptcy, softgate gmbh is allowed to deliver against prepayment or COD. Partial deliveries are permissable when agreed on or when arising from the nature of the contract.
Deadlines are only approximated and are only binding by written agreement and are subjct to orderly and timely supply. Deadlines start after clarification of all execution-detail but not before confirmation of order by softgate gmbh and down-payment. Deadlines extend in case of act of god, e.g. strike, lockout, ex post shortage of material, restrictions concerning import and/or export or equal unpredictable events, for the time of the obstruction and an appropriate warm-up-time. softgate gmbh has the right to rescitate from any parts of the contract, that are not fulfilled. The customer has the right to rescitate in case softgate gmbh does not answer to his query. In case of not orderly or timely supply softgate gmbh has the right to rescitate without any liability for damages. In case of customers’ arrears all deadlines extend for the time of the arrears and an appropriate warm-up-time. In case of softgate gmbh’s arrears the customer may rescitate after appropriate written grace-period-notification, as long as by end of the grace-period the goods were not posted yet or the service was not yet conducted. All liabilty for damages because of softgate gmbh’s arrears is excluded except for cases of intent and gross negligence.
In case of rescitation from the contract for whatever cause, softgate gmbh is entitled to a compensation for the use of any software yielded to the customer. (Concession analogy)
3. Preconditions of implementation

The customer/partner is obliged to provide all necessary documents in time and to regularly give written information necessary and useful for execution of the order. The customer is also obliged to give his approval for any partial performance upon request.
Any outlines, images, diagrams, drawings, specifications of construction and performance, upon which softgate gmbh’s offers or confirmations are based, are only approximately decisive and include the usual tolerances. Changes of execution are reserved to the customer. These changes have to be reported to softgate gmbh in writing and they will be taken into account as far as possible. Do changes require any additional services, these services have to be remunerated separately on a basis of a comparable service or – if those are lacking – in a usual appropriate manner.
4. Prices, payments

Unless otherwise contracted softgate gmbh’s list prices (+ VAT) apply. In case of an agreed delivery within 4 months after conclusion of the contract, the price effective on the day of the conclusion of the contract is applicable. Changes of the price are permitted in case of delivery later than 4 months after conclusion of contract; then the price effective on the day of delivery is applicable. Price increases are only permitted on a scale according the increases of cost, but only in a reasonable way, that takes into account the realtion between service and return-service. Constitutes the increase more than 5%, the customer has the right to withdraw within two weeks after being informed about the increase from the parts of the contract, that are affected by the increase. The withdrawal has to be declared in writing.
Payment for deliveries and services provided by softgate gmbh is due net immediately after invoice date. Cheques are only accepted on account of performance. Foreign shipments are only conducted with confirmed letter of credit. In case of acceptance of a bill, the deferral is subject to a lack of economic deterioration. For contracts for work and services and for contracts of service softgate gmbh is entiled to invoice according to work-progress, up to 90% of the price.
In case of default softgate gmbh charges a defaulted interest of 8% p.a. above the ECB base-rate. The defaulted interest may be higher if softgate gmbh verifies a higher strain, or lower if the customer verifies a lower strain. softgate gmbh is entitled to invoice all outstanding debits of the business tie, in case of default, application for a composition or file for bankruptcy, cessation of payment or economic deterioration.
Summation by the customer is only permitted with undisputed or validated allowances.
Any bank fee, exchange fee, local or national additional charge or tax in customer’s country, especially any withholding tax, bears the customer. This will not reduce the payment amount.
The customer is responsible to declare and to bear the VAT in customer’s country.
5. Retention of title

softgate gmbh retains title to all goods or software delivered by softgate gmbh until all claims resulting from the contract have been satisfied. This is also valid, if one or more claims became part of a current account and the balance is accepted. In case of softgate gmbh accepting payment by cheque/bill, the rentention of title will not expire before encashment/discharge of the accepted cheque/bill.
The customer/partner is only entitled to sell the goods or the software in regular business dealings and only for cash or with retention of title. In assignments of security of entire stocks of merchandise softgate gmbh’s goods/software have to be excluded. In case of forced sale of collaterals softgate gmbh has to be informed immediately in writing. In case of softgate gmbh’s goods/software being joined with other goods/software and thus creating a new good/software, the customer has to confer co-ownership of the newly created good/software to softgate gmbh. The same applies to the case that a softgate gmbh’s good/software is mixed or processed to form another good/software.
Any treatment or processing by the customer/partner is carried out by order of softgate gmbh but exludes the acquisition of ownership according to § 950 I and II BGB (German Civil Code), but does not constitute any obligation for softgate gmbh. softgate gmbh retains ownership of all goods/software thus created and used for retention of title. softgate gmbh becomes co-owner of any new good/software created by treatment or processing with other goods/software in the relation of the value of the processed goods at the time of processing (prolongued retention of title).
In case of softgate gmbh’s goods/software being sold before total payment, the customer/partner is obliged to transfer the retetion of title to softgate gmbh, regardless if the goods/software are sold with third parties’ goods/software or in a processed state. In addition the customer transfers all his actual and future claims and ancillary rights against his buyer to softgate gmbh to the amount of softgate gmbh’s claims against him. In case of softgate gmbh goods/software being joined or mixed with other goods/software the claim is only transfered to the amount of the relation of the value of joined or mixed goods/software. The customer is entitled to collect the allowances in his own name. The customer has to pay the sales revenue over to softgate gmbh immediately, as far as softgate gmbh’s claims are mature. In case of cessation of payment, application for a composition or file for bankruptcy or failure of performance, the right to sell the goods/software with retention of title and the right to collect allowances is automatically waived and devolves to softgate gmbh.
In order to enforce any rights against the customer’s buyer deriving from the prolongued retention of title, the customer on softgate gmbh’s demand cedes any necessary documents and information, especially from his books, to softgate gmbh. Does the customer not immediately pay in cash after a reminder because of any conduct contrary to contract, e.g. default, the cusomer has to return softgate gmbh’s goods/software without any exception. softgate gmbh is allowed to take posession of goods of which they retained title, and therefore may enter the customers offices and/or storage rooms. The customer has to bear any redemption-costs. softgate gmbh is entitled to realize any goods redeemed best possible. In case of the value of the collateral being 20 % higher than softgate gmbh’s claim or in case of the customer being obliged to cede claims to softgate gmbh that are higher than 125 % of softgate gmbh’s claims, softgate gmbh is obliged to release collaterals of its choice upon request.
6. Warranties, release from liability, liability

Warranties for hardware

Warranties for hardware extend to:

a) timely, the duration of warranties given by softgate gmbh’s suppliers, starting at the time of the passing of risk and based on a single shift operation use;

b) factually a state-of-the-art lack of defect of goods;

c) legally a cession of softgate’s own warranty-claims against their suppliers to the customer, who herewith accepts the cession. In case the customer is not able to implement the ceded claims, the customer is entitled either to subsequent improvement or replacement by softgate gmbh. Defective parts or devices are immediately repaired by softgate gmbh, if necessary by use of spare-parts. The same procedure applies to defects of other goods caused by defective parts or devices delivered by softgate gmbh. Any transport-cost arising herefrom are paid by softgate gmbh. All defective parts that were replaced become property of softgate gmbh. The customer is only entitled to demand cancellation of contract or reduction of price, in case that replacement or three tries of subsequent improvement failed.

Warranty excludes,

a) when the devices are inappropriately installed or used by the customer, respectively when the devices are connected to or built into inappropriate parts, e.g. parts not delivered by softgate gmbh;

b) normal wear (e.g. fuses, printing blankets, ink ribbons etc.) as well as inappropriate action and maloperation;

c) damage suffered through repairs or other action by a third party.

Any claims concerning guaranteed quality are excluded, except for willful breach of duties or grossly negligent breach of duties by softgate gmbh. Defects must be notified to softgate gmbh in writing without undue delay upon discovery, viz. obvious faults upon delivery, concealed faults upon discovery including a precise report of the fault (e.g. conditions of operation and environment, last input). The defect goods have to be sent to softgate gmbh. If that is not possible, softgate gmbh is entitled to do thorough inspection. The customer has a lien of the purchase price only to the extent of the price of the defected object or part.

Definition of technical error

For the generation of software softgate gmbh operates with due diligence. It is state-of-the-art that even by application of the highest diligence, bugs cannot be eliminated. Softgate gmbh cannot guarantee an operation without interruption or failure and can also not guarantee the total elimination of possible software-bugs. Any occuring reproducible bugs will be eliminated according to our warranty. In case reproducible bugs cannot be eliminated, softgate gmbh will apply a temporary correction, based on the customer’s written problem report, and will try to develop an alternative. Does the software not comply with the explicitely agreed specifications, and can these specification not be attained within reasonable time, so that the customer is unable to use the software at all, the customer is entitled to return the software. The choice of software, software installation and use, as well as the attained results are alone the customer’s responsibility. Any liablity regarding marketability and merchantability of software for special purpose is excluded. Liability is also excluded for software used in connection with other software, that is not obtained by softgate gmbh and respectively not approved in writing by softgate gmbh or software that was modified without written consent of softgate gmbh. Liability for loss of data is also excluded. Act of god also exludes liability.

Warranty for software, data storage medium and services, limitation of liability

softgate gmbh guarantees over a period of 6 months, starting on the day of delivery, that every unmodified software fulfils all documented functions and is free of any bugs, that impair the capability of the documented functions. Softgate gmbh guarantees that the tapes, floppy discs and other data storage mediums are free of material- and manufactoring-errors, as long as normally used. This guaranty is valid for 90 days after day of delivery. Softgate gmbh guarantees that ist technical services, training services and consulting services match the generally accepted industry standard. softgate gmbh does not guarantee, that the software meets all the customer’s requests or that the functions included in the software will run nonstop and without fault in a combination chosen by the customer. Liability for licensing unapproved software, that is subject of being licensed separately, is excluded (BETA-software).

Release

softgate gmbh will advocate the customer against legal action claiming the software infringes copyrights, trademark rights or patent rights, under the following condition:

The customers informs softgate gmbh in writing within 30 days about the claim
Softgate gmbh is reserved the rights of defence and settlement-negotiation
The customer gives softgate gmbh all the necessary information and support for the defence and gives softgate gmbh the according authority
The release is excluded, when the infringement is based on software that is not up-to-date or modified and the infringement would not have occured if up-to-date or unmodified software was used. In case of software being or softgate gmbh considering the software infringing, softgate gmbh is entitled to proceed by its choice and at its cost:

Amend the software, so that it is not infringing any more
Get the customer the license to use the software.
In case none of these possibilities can be conducted in a reasonable economic mannor, softgate gmbh is entitled to resign the license-agreement for the software and pay back the royalties paid by the customer. Cypher 6.5 exclusively governs the entire extent of the release and the claim of the customer.

Liability

softgate gmbh is liable for own default and for willful breach of duties or grossly negligent breach of duties by persons employed by softgate gmbh in performance of its obligations. In case of breach of a cardinal obligation softgate gmbh also is liable for slight negligence. Liability is excluded for all other cases of slight negligence. Liability is excluded for any harm that is out of the contracts character, as well as for harm that are unforeseeable even with most diligent evaluation of risk, as well as for consequential harm caused by a defect. Liabilty for loss of data is excluded. As far as liabilty is excluded or limited concerning contractual claims, tortious liabilty is also exluded or limited.softgate gmbh is only liable for damage of property and personal injury, but not for lost profit. Liability according to the Product Liability Act remains unaffected.

Maximum limit of liability

Liability apart from liability according to the Product Liability Act is limited. Liability is limited to 5.000.000 € for personal injury and 1.000.000 € for all other damage. softgate gmbh determined these limits after in-depth risk-analysis regarding the usual contracts. These limits include an appropriate uplift upon the highest calculated risk. In case the customer wants a higher limit of liability, (the signatories are able to agree on that)at additional charge on an individual basis. After the occurance of a damage, causing a damage higher than 5.000 €, both signatories have a break option within 14 days after the customer informed softgate gmbh of the occurance in writing. In that case the compensation of softgate gmbh is due according to cypher 8.1.

7. Acceptance

Even without actual acceptance, the services provided by softgate gmbh are reckoned as accepted by the time, the customer literally uses them or does so in the broadest sense. In case of special developments softgate gmbh is obliged to prove acceptance by means of an acceptance-test. In case the customer fails to declare acceptance or fails to send a list of defects within 30 days after start of the acceptance-test, the services provided are reckoned as accepted.

8. Premature cancellation of contracts for services and contracts of service

Both signatories are only allowed to cancel prematurely for a major reason. In case of a customer’s cancellation for which softgate gmbh is to blame, softgate gmbh is only entitled to charge for the services provided until cancellation. In case of softgate gmbh’s cancellation for which the customer is to blame, softgate gmbh is entitled to charge for the entire contracted payment less saved expenditures and obtained advantages. Saved expenditures are reckoned to be 20% of the allowance for the missing services, unless the customers proves a higher percentage.Major reasons for cancellation by softgate gmbh are especially
a) repeated default by the customer, respectively a serious economic deterioration, e.g. file for bankruptcy, distraint against the customer or any company affiliated with the customer under company law.

b) repeated breach of contractual obligation to co-operate after written warning.

9. Duration and cancellation of permanent-contracts

Permanent contracts are contracts with a first-time minimum term of one year, e.g. service contracts etc. Both signatories have the right to cancel this permanent contract for the first time by the end of that first term. Written notice of cancellation has to be given 3 months before end of term. The customer bears the risk of reception. The right to extraordinary notice of cancellation remains unaffected. Major reason for a customer’s extraordinary notice of cancellation can be: act of god, final discontinuation of the customer’s business and equally severe reasons. Purely economic reasons, reorientation of the customer’s business segment or transfer of an undertaking are not considered as major reason. A buyer inherits all rights and liabilities. Major reason for softgate gmbh’s extraordinary notice of cancellation can be a serious economic deterioration of the customer, a short-notice cancellation by softgate gmbh’s suppliers, on which the service relies fully or partly on, or act of god. An extraordinary notice of cancellation has to be given in writing and promptly. Permanent contracts will be tacitly extended for a period of another year. Ordinary notice of cancellation is possible with a 3 months notice.

10. Copyright

All software by softgate gmbh, that is subject to copyright, can only be obtained and used by the customer after signing of a software-licence-agreement. The issue of sublicences is subject of written consent by softgate gmbh. All data carriers provided by softgate gmbh for the software and all copies of software and/or documentation made by the customer with softgate gmbh’s written consent remain property of softgate gmbh at all time. The customer is obliged to provide any copies of software and documentation with copyright-notices and he has to ensure the secret nature of softgate gmbh software opposite third parties.

11. Data protection, confidentiality

Any documents rendered, knowledge and experience transfered to the other signatory may only be used within the scope of the contract’s purpose. They are not to be made available to third parties, unless they have to be available to third parties by purpose or third parties already legally obtained the information. Auxiliary persons called in to work in a specified contract, e.g. freelancers, subcontractors do not qualify as third parties.
The signatories agree on confidentiality regarding subject matter of contract and all information obtained during the transaction.
The confidentiality provision continues to apply after termination of the contract.
After termination of the contract any documents and data rendered by a signatory have to be returned or destroyed upon request, unless the other signatory has legitimate interest to keep the documents.
Both signatories safeguard data protection within their corporate organisation.
Additional privacy statements, confidentiality agreements or non disclosure agreements will be drafted upon request. Softgate gmbh explicitely excludes any liquidated damages or global contractual penalty clause. Softgate gmbh is liable according to the terms of liability of these terms and conditions as well as according to legal liability terms, as long as these were not effectively waived.

12. Naming of customers

softgate gmbh is entitled to use the customer’s name on the homepage or in company’s brochures as is customary in this line of business. The naming only includes the customer’s name and principal office. Any details of the contract will not be mentioned. However the naming of the customer can be assigned to a business area of softgate gmbh. The customer is entitled to contradict this practise for the future. A reference customer agreement explicitely needs specific arrangements.

13. Place of performance, place of competent jurisdiction, applicable law

Place of performance is Erlangen. According §§ 38 ff ZPO (German Code of legal procedure) Nuremberg is place of competent jurisdiction. The contractual relationship is governed by the laws of the Federal Republic of Germany except for the rules of conflict of laws. The application of the Convention for the International Sales of Goods (CISG) is expressly excluded.

14. Severability clause

If a specific provision of these General Terms and Conditions of softgate gmbh is or becomes invalid, the remaining provisions shall remain valid and shall be interpreted and amended in a way that the intended economic purpose is obtained in a legally valid way. The same applies for loopholes that may occur.

It is to be understood, that the English version of the terms & condition of softgate gmbh are a service for our English-speaking customers only. Due to legal distinctions the English translation can only provide a basis of information. In case of conflict and/or litigation only the German version applies.

Erlangen, Nov. 2017