General Terms and Conditions of GAIN Software GmbH for the Sale of Standard Software
1 Validity of the contractual conditions
(1) For the sale of standard software, for services agreed within the scope of the purchase contract and for pre-contractual obligations, these General Terms and Conditions of Contract shall apply exclusively in business dealings, unless otherwise agreed. Other contractual conditions shall not become part of the contract, even if GAIN Software GmbH does not expressly object to them.
(2) Even if no further reference is made to this in the future conclusion of similar contracts, the General Terms and Conditions of GAIN Software GmbH shall apply exclusively in the version available at https://www.gain.de/agb/ at the time of submission of the customer’s declaration, unless the contracting parties agree otherwise in writing.
(3) In the case of contracts with consumers, only § 3, § 4, § 7 para. 1 to 3 and § 14; in all other respects the statutory rules shall apply.
(4) The delivery of the standard software is subject to §§ 433 ff. BGB. For supplementary services (e.g. installation, parameterization, training), §§ 611 ff. BGB.
2 Conclusion of contract
(1) Offers made by GAIN Software GmbH are subject to change without notice and are non-binding, unless the offer is designated in writing as binding. A legal binding is only established by a contract signed by both parties or by a written order confirmation of GAIN Software GmbH, furthermore by the fact that GAIN Software GmbH starts to provide the service after the order has been placed. GAIN Software GmbH may request written confirmations of oral contractual declarations by the customer.
(2) The Purchaser shall be bound by its declarations concerning the conclusion of contracts for a period of four weeks.
(3) Separate contracts shall be concluded for deliveries and services of other types (e.g. hardware deliveries, software maintenance, installation and parameterisation of the software, training). GAIN Software GmbH is obligated for a period of three months from the conclusion of the contract for the purchase of the software to conclude a contract for such further services at the request of the customer under the terms and conditions currently in effect (see https://www.gain.de/agb/). In all other respects, both contracting parties are free to conclude such contracts.
3 Subject matter of the contract, scope of services
(1) The subject of these contractual conditions is only the delivery of standard software and the granting of the rights of use in accordance with § 4, in addition to the services ordered at the time of purchase, e.g. training in accordance with § 15.
(2) Prior to the conclusion of the contract, the Purchaser has verified that the specification of the software corresponds to its wishes and requirements. He is familiar with the essential functional features and conditions of the software.
(3) The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or the order confirmation of GAIN Software GmbH, otherwise by the offer of GAIN Software GmbH. Other specifications or requirements shall only become part of the contract if the contracting parties have agreed to this in writing or GAIN Software GmbH has confirmed them in writing. Subsequent changes to the scope of services require written agreement or written confirmation by GAIN Software GmbH.
(4) Product descriptions, representations, test programs, etc. are descriptions of performance, but not guarantees. A guarantee requires a written declaration by the management of GAIN Software GmbH.
(5) The Purchaser shall receive the software consisting of the machine program and the user manual. The technique of delivery of the software depends on the agreements; unless otherwise agreed, the program and manual are delivered online. The customer has no right to be provided with the source program.
(6) GAIN Software GmbH shall provide all deliveries and services in accordance with the state of the art.
4 Rights of the Purchaser to the Software
(1) The software (program and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other industrial property rights to the software as well as to other objects which GAIN Software GmbH makes available or makes accessible to the customer within the scope of the initiation and performance of the contract shall be the exclusive property of GAIN Software GmbH in the relationship between the contracting parties. Insofar as third parties are entitled to the rights, GAIN Software GmbH shall have corresponding exploitation rights.
(2) The purchaser is only entitled to use the program to process his own data himself in his own company for his own purposes. All data processing equipment (e.g. hard disks and central processing units) onto which the programs are copied or taken over in whole or in part, for a short period or permanently, must be located on the premises of the Purchaser and be in its direct possession. Further contractual rules of use (e.g. restriction to a number of workstations or persons) are to be set up technically and complied with in practice. GAIN Software GmbH hereby grants the customer the necessary rights for this use as a simple right of use, including the right to correct errors. For the duration of the right of use § 13 applies.
(3) The customer may make the backup copies of the programs required for safe operation. The backup copies must be kept in a safe place and, as far as technically possible, must bear the copyright notice of the original data carrier or the version of the software transferred online. Copyright notices, trademarks and product identifications may not be deleted, changed or suppressed. Copies that are no longer required must be deleted or destroyed. The user manual and other documents provided by GAIN Software GmbH may only be copied for internal company purposes.
(4) The Purchaser shall only be entitled to transfer the software to a third party in accordance with the following rules: (a) the transfer to the third party is by way of sale in perpetuity and without any right of return or repurchase option. b) The third party shall make the following written declaration to GAIN Software GmbH: “We wish to purchase the software from Click here to enter text (company and address of purchaser) Click here to enter text (exact designation including designation of license volume). We have a copy of the documents which show the rights of use and the obligations of the previous purchaser of the software. We undertake vis-à-vis you to comply with these rules of use. This applies in particular with regard to § 4, § 13 (2) and (3), § 14 and § 16 of the General Terms and Conditions of Contract agreed at that time. Our right of use shall commence at the earliest when the previous purchaser has notified you in writing that he has, as far as possible and reasonable, deleted the software and that he no longer has any right to use the software from the commencement of our right of use. We undertake to comply with the same rules in the event of a sale of the software by us as are incumbent on our legal predecessor in this respect vis-à-vis you.” c) The customer shall ensure that the third party may only use the software after the customer has carried out the deletion of the software and after GAIN Software GmbH has received the declaration signed by the third party after (b) is present. d) The right to resell refers to the status of the computer program as it is available to the purchaser at the time of transfer to the third party. e) The Purchaser may – in addition to his own use – provide the software to companies affiliated with him pursuant to § 15 of the German Stock Corporation Act (AktG) for their own use in accordance with the provisions of this contract. This right of use is temporary; it shall end when the Purchaser and the using company are no longer affiliated companies or The operation of the software may be carried out for the Purchaser and the companies affiliated with it in accordance with § 15 of the German Stock Corporation Act (AktG) by one of these companies. In the event of a breach of these rules by the customer, the customer shall owe GAIN Software GmbH a contractual penalty in the amount of half of the amount that the third party would have had to pay for the software at GAIN Software GmbH according to the then current price list, at least in the amount of half of the purchase price agreed today.
(5) The rules under para. 2 and para. 3 shall also apply if the Purchaser carries out error correction or (insofar as permissible) other processing of the programs or uses the software for training purposes.
(6) The customer may only decompile the interface information of the programs within the limits of § 69e UrhG (German Copyright Act) and only after he has informed GAIN Software GmbH in writing of his intention and requested the transfer of the necessary interface information with a period of at least two weeks. Section 14 shall apply to all knowledge and information which the customer obtains about the software in the course of decompiling. Prior to any involvement of third parties, the customer shall provide GAIN Software GmbH with a written declaration by the third party that the third party undertakes directly towards GAIN Software GmbH to comply with the rules set out in Sections 4 and 14.
(7) All other acts of exploitation, in particular the renting, lending and distribution in tangible or intangible form, the use of the software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) are not permitted without the prior written consent of GAIN Software GmbH.
(8) Contractual items, documents, proposals, test programs etc. of GAIN Software GmbH which become accessible to the customer before or after conclusion of the contract shall be deemed to be intellectual property and business and trade secrets of GAIN Software GmbH. They may not be used in any way whatsoever without the written permission of GAIN Software GmbH and must be kept secret in accordance with § 14.
(9) The Purchaser shall acquire the same rights to modified, extended or newly created software as to the standard software.
5 Time of performance, delays, place of performance
(1) Details of delivery and performance dates are non-binding unless GAIN Software GmbH has designated them in writing as binding. GAIN Software GmbH may provide partial services, provided that the delivered parts can be reasonably used by the customer.
(2) Delivery and performance periods shall be extended by the period in which the customer is in default of payment under the contract and by the period in which GAIN Software GmbH is prevented from delivery or performance by circumstances for which it is not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances include force majeure and industrial action. Deadlines shall also be deemed to be extended by the period of time during which the customer fails to cooperate in breach of contract, e.g. fails to provide information, fails to provide access, fails to supply materials or fails to make employees available.
(3) If the contracting parties subsequently agree on other or additional services which affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and setting of deadlines by the purchaser must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in cases of particular urgency.
(5. The place of supply of services shall be the place where the service is to be provided. For the rest, the place of performance for all services arising from and in connection with this contract shall be the registered office of GAIN Software GmbH.
6 Contractual obligation and termination of contract
(1) Any termination of the further exchange of services (e.g. in case of rescission, reduction, termination for cause, damages in lieu of performance) must always be threatened by stating the reason and setting a reasonable deadline for remedy (usually at least two weeks) and may only be declared within two weeks after expiry of the deadline. In the cases provided for by law (cf. § 323 para. 2 BGB) the setting of a time limit may be omitted. Anyone who is wholly or mainly responsible for the disruption cannot demand reversal.
(2) All declarations in this context must be made in writing to be valid.
7 Remuneration, payment
(1) The agreed remuneration is due without deduction after delivery of the software (for training courses after completion of the training) and receipt of the invoice by the customer and is payable within 10 days.
(2) In the absence of any other agreement, the respective price and conditions list of GAIN Software GmbH shall apply.
(3) Travel costs, expenses, accessories, shipping costs and telecommunication costs are to be reimbursed additionally according to expenditure. Additional services requested by the customer (e.g. consulting and support during program installation) will be invoiced according to the current price list of GAIN Software GmbH. A list price increase is limited to 3% per year.
(4) Value added tax shall be added to all prices.
(5) The customer may only set off claims which have been recognised by GAIN Software GmbH or which have become res judicata. Except in the area of § 354a of the German Commercial Code (HGB), the customer may only assign claims arising from this contract to third parties with the prior written consent of GAIN Software GmbH. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within this contractual relationship.
8 Obligations of the purchaser
(1) The customer is obligated to inspect all delivery items of GAIN Software GmbH immediately upon delivery or upon making them available in accordance with the provisions of commercial law (§ 377 HGB [German Commercial Code]) and to notify GAIN Software GmbH of any detected defects in writing with a precise description of the defect. The customer thoroughly tests each module for usability in the specific situation before starting productive use. This also applies to programs which the purchaser receives within the scope of the warranty and a maintenance contract.
(2) The Purchaser shall take reasonable precautions in the event that the program does not work properly in whole or in part (e.g. by means of data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is his responsibility to ensure the functioning of the working environment of the programme.
9 Material defects
(1) At the time of the passing of risk, the software has the agreed quality and is suitable for the contractually presupposed use or, in the absence of an agreement, for the usual use. It meets the criterion of practical suitability and has the usual quality for software of this kind; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall be disregarded.
(2) In the event of material defects, GAIN Software GmbH may initially provide subsequent performance. Subsequent performance shall be effected, at the discretion of GAIN Software GmbH, by removal of the defect, by delivery of software which does not have the defect, or by GAIN Software GmbH pointing out possibilities to avoid the effects of the defect. Due to a defect, at least three attempts to rectify the defect must be accepted. An equivalent new program version or the equivalent previous program version without the defect shall be accepted by the Purchaser if this is reasonable for him. The installation of software (patches or new versions) is the responsibility of the purchaser.
(3) The customer shall support GAIN Software GmbH in the analysis of errors and the elimination of defects, in particular by describing problems that occur in concrete terms, informing GAIN Software GmbH comprehensively and granting GAIN Software GmbH the time and opportunity necessary for the elimination of defects. GAIN Software GmbH may choose to remedy the defect on site or at its business premises. GAIN Software GmbH may also provide services by remote maintenance. The customer shall provide the necessary technical requirements at his own expense and grant GAIN Software GmbH electronic access to the software after prior notification.
(4) The contracting parties agree on the following error classes and response times: a) Error class 1: Defects preventing operation: The error prevents business operations at the customer; there is no workaround: GAIN Software GmbH shall immediately, at the latest within four hours after the error message, begin to eliminate the error and shall continue to do so with vigour until the error has been eliminated, as far as reasonable also outside normal working hours (see https://www.gain.de/pdm-service/ support/). b) Error class 2: Defects hindering operation: The error hinders the business operations of the customer considerably; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: GAIN Software GmbH shall begin with the error correction on the same day if the error message is received before 10:00 a.m., and at the beginning of the next working day if the error message is received later, and shall continue until the error is corrected within the usual working hours. GAIN Software GmbH can first show a workaround solution and eliminate the error later if this is reasonable for the customer. c) Error class 3: Other defects: GAIN Software GmbH shall begin to eliminate the error within one week or shall eliminate the error only with the next program version if this is reasonable for the customer.
(5) The time limits pursuant to para. 4 start with an error message according to § 8 para. 1 For the calculation of the time limit § 5 para. 2 and 3. in case of disagreement on the allocation of a fault to the classes according to par. 4, the Purchaser may demand that the goods be classified in a higher defect class. He shall reimburse GAIN Software GmbH for the additional expenditure if he cannot prove that his classification was correct.
(6) GAIN Software GmbH may demand compensation for additional expenses resulting from the fact that the software has been modified, used outside the specified environment or operated incorrectly. It may claim reimbursement of expenses if no defect is found and the customer had not raised the complaint without negligence. The burden of proof lies with the purchaser. Section 254 BGB shall apply accordingly.
(7) If GAIN Software GmbH finally refuses subsequent performance or if such subsequent performance finally fails or is unreasonable for the customer, the customer may, within the scope of § 6, either withdraw from the contract or reasonably reduce the remuneration and additionally claim damages or reimbursement of expenses in accordance with § 11. The claims shall become time-barred in accordance with § 12.
10 Defects of title
(1) GAIN Software GmbH warrants that the contractual use of the software by the customer does not conflict with any third-party rights. In the event of defects in title, GAIN Software GmbH shall provide a warranty by providing the customer, at its discretion, with a legally flawless opportunity to use the software or equivalent software.
(2) The customer shall inform GAIN Software GmbH immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. GAIN Software GmbH shall support the customer in his defence against the attacks of the third party by providing advice and information. (3) § 9 para. 2, 6, 7 apply accordingly.
11 Liability
(1) GAIN Software GmbH shall pay damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material defects and defects of title, breach of duty and tort), only to the following extent: a) Liability in the event of intent, fraudulent intent and under guarantee is unlimited. b) In the event of gross negligence, GAIN Software GmbH shall be liable to the amount of the typical damage foreseeable at the time of conclusion of the contract. c) In the event of a breach of a cardinal obligation due to simple negligence (an obligation the fulfilment of which is a prerequisite for the proper performance of the contract, the observance of which the contractual partner regularly relies on and may rely on, and the breach of which jeopardises the achievement of the purpose of the contract), GAIN Software GmbH shall be liable in the amount of the typical damage foreseeable at the time of conclusion of the contract, up to a maximum of EUR 100,000 per case of damage and EUR 1 million for all cases of damage arising from and in connection with the contract as a whole.
(2) GAIN Software GmbH shall have the right to object to contributory negligence. In particular, the Purchaser shall be obliged to back up data and to prevent malware in accordance with the current state of the art.
(3) In the event of injury to life, limb and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without restriction.
12 Statute of limitations
(1) The limitation period shall be a) in the case of material defects, for claims for repayment of the purchase price arising from withdrawal or reduction, one year from delivery of the software, but for properly notified defects not less than three months from submission of the effective declaration of withdrawal or reduction; b) one year for other claims arising from material defects; c) in the case of claims arising from defects in title, two years if the defect in title does not lie in a right of a third party on the basis of which the third party has the rights specified in § 3 para. 5 or demand the cessation of their use; d) in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time at which the Purchaser became aware of the circumstances giving rise to the claim or should have become aware thereof without gross negligence,
(2) The limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 BGB. In the case of compensation for damages and expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 11 para. 3 shall apply. 1 don’t.
13 Beginning and end of the rights of the purchaser
(1) The ownership of delivered goods and the rights according to § 4 shall only pass to the customer upon full payment of the contractual remuneration. Previously, he had only a provisional, only a debt, and under para. 2 revocable right of use.
(2) GAIN Software GmbH may terminate the rights under § 4 for good cause under the conditions of § 6. Good cause shall be deemed to exist if GAIN Software GmbH, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot be reasonably expected to allow the software to remain with the customer on a permanent basis, in particular if the customer violates § 4 in a significant manner.
(3) If the rights according to § 4 do not arise or if they end, GAIN Software GmbH may demand from the customer the return of the objects provided or the written assurance that they have been destroyed, furthermore the deletion or destruction of all copies of the objects and the written assurance that this has been done.
14 Confidentiality and data protection
(1) The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) which they receive from the other contracting party before or during the performance of the contract and which are protected by law or which contain business or trade secrets or which are designated as confidential, even after the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.
(2) The Purchaser shall make the subject matter of the contract accessible only to those employees and other third parties who require access in order to perform their official duties. He shall instruct such persons as to the secrecy of the objects.
(3) GAIN Software GmbH shall process the customer’s data required for the transaction of business in compliance with the provisions of data protection law. GAIN Software GmbH may name the customer as a reference customer after successful completion of the services.
15 Supplementary services
(1) Supplementary services (§ 1 para. 4) shall be provided by GAIN Software GmbH. The customer may have the service performed on his premises if he provides the necessary technical equipment. He shall then additionally pay for the travel time and travel costs in accordance with the respective current price list of GAIN Software GmbH.
(2) GAIN Software GmbH may cancel a service appointment for good cause. GAIN Software GmbH will inform the customer of the cancellation of an appointment in good time and offer alternative appointments.
16 Conclusion
(1) Amendments and supplements to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, shall also be sufficient to comply with the written form requirement.
(2) The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract shall be the registered office of GAIN Software GmbH for contracts with merchants.
(3) In the event of any disputes arising from or in connection with this contract, contract extensions or supplements, which they are unable to settle among themselves, the contracting parties agree to call upon the arbitration board of the German Association for Law and Information Technology (www.dgri.de/), in order to settle the dispute in full or in part, provisionally or finally, in accordance with its arbitration rules in the version valid at the time of the initiation of arbitration proceedings. The statute of limitations for all claims arising from the matter in dispute shall be suspended from the date of the request for conciliation until the end of the conciliation proceedings; section 203 of the German Civil Code shall apply mutatis mutandis.
Verse. 1.2 with status 23.04.2020
