§ 1 Applicability of the Contractual Conditions
(1) These General Terms and Conditions shall apply exclusively to business transactions for the sale of standard software and for pre-contractual obligations, provided no other provisions have been made. Other contract terms are not the subject matter of this contract, even if SSC-Services GmbH does not explicitly contradict them.
(2) Even if no special reference is made to them again when concluding similar contracts, the general terms and conditions of SSC-Services GmbH shall apply in the version retrievable when submitting the purchaser’s declaration at www.ssc-services.de, unless another agreement has been entered into by the partners in writing.
(3) Supplementary, §§ 433 ff. BGB shall apply for the delivery of standard software. For further services (e.g. training), §§ 611 ff. BGB shall apply in addition.
§ 2 Conclusion of Contract
(1) Offers from SSC-Services GmbH shall be non-binding and subject to change unless the offer is designated as binding in writing. An offer only becomes legally binding by means of a contract signed by both sides or a written order confirmation issued by SSC-Services GmbH, or in that SSC-Services GmbH commences with the performance in accordance with the contract.
(2) In the case of other types of deliveries and services (e.g. hardware delivery, software maintenance, setup and installation of the software), separate contracts shall be concluded.
§ 3 Subject Matter of the Contract, Scope of Services
(1) Subject matter of this contract is the delivery of software and the granting of usage rights according to § 4.
(2) The purchaser has checked whether the software specification meets his wishes and requirements before concluding the contract. He is familiar with the essential functional features and conditions of the software.
(3) The scope, nature and quality of deliveries and services are governed by the contract signed by both parties, or by the order confirmation issued by SSC-Services GmbH; alternately, these parameters are subject to the offer by SSC-Services GmbH. Additional specifications or requirements shall only become part of the contract if the contractual partners mutually agree on this in writing or if confirmed by SSC-Services GmbH in writing. Any subsequent changes to the scope of services shall require written agreement or the explicit written confirmation through SSC-Services GmbH.
(4) Product descriptions and images in test programmes are performance descriptions and not any form of warranty. A warranty requires a written declaration by the management board of SSC-Services GmbH.
(5) The purchaser receives the software by accomplishment of the installation. Besides, no physical handover is made, e.g. on a data carrier. The technology of the software delivery is determined by the agreements: the purchaser is not entitled to be provided with the source code.
(6) SSC-Services GmbH shall provide all deliverables and services using state-of-the-art technology.
§ 4 The Purchaser’s Rights to the Software
(1) The software (program and user manual) is legally protected. The copyright, patent rights, trademark rights and all other rights in goods and services as well as industrial property rights to the software and other objects which SSC-Services GmbH makes available or hands over to the purchaser as part of the process to set up and implement the agreement are the exclusive property of SSC-Services GmbH in the relationship of the parties. Should third parties be entitled to any rights, SSC-Services GmbH shall have the corresponding rights of use.
(2) The purchaser acquires the software in order to use it for his own purposes on a permanent basis (non-exclusive license). All data processing units (e.g. hard drives and central units) onto which the programs are copied in whole or in part, on a temporary or permanent basis, must be in premises and in the direct possession of the purchaser. The usage possibility is not permitted to exceed the contractually agreed number of work places. SSC-Services GmbH hereby grants the purchaser the right to use the programs which are necessary for these purposes as well as the right to copy programs on the main memory and hard disks as well as the right to correct errors. The purchaser is entitled to make backup copies of the programs necessary for safe operation. As far as technically possible, the backup copies must be marked with the copyright note of the original data carrier. Copyright notes must not be deleted, changed or suppressed.
(3) The user manual and any other documents provided by SSC-Services GmbH may only be copied for the company’s internal purposes.
(4) SSC-Services GmbH shall agree to the passing-on of the software (in whole or in part) to a third party under the following conditions:
- The purchaser hands over the original data storage media (cf. § 3 subparagraph 5) to the third party (if any), deletes all other copies in particular on data storage media, in read-only memories or main memories, he definitely stops using the software and submits a written confirmation of the fulfilment of his duties to SSC-Services GmbH.
- The third party declares to SSC-Services GmbH in writing that he shall adhere to the conditions of this agreement and in particular to § 4 of this agreement.
- There are no important opposing reasons.
The consent of SSC-Services GmbH must be submitted in writing in order to be effective.
(5) The purchaser is only permitted to decompile the interface information of the software within the limits of § 69 e of the Copyright Law (UrhG) and only upon notifying SSC-Services GmbH in writing of his intention hereof and has requested the relinquishment of required information with a minimum term of two weeks. All knowledge and information gained by the purchaser in line with decompiling are subject to § 14. Prior to every involvement of third parties he shall provide SSC-Services GmbH with a written statement by the third party, committing to compliance with the rules stipulated in §§ 4 and 14.
(6) The beginning and end of the purchaser’s rights are subject to § 13.
(7) All other acts of utilisation, in particular leasing, rental and distribution of any tangible or intangible property are prohibited without the prior written consent of SSC-Services GmbH.
(8) Any subject matter of the agreement, documents, proposals, test programs, etc. of SSC-Services GmbH to which the purchaser gains access before or after the conclusion of the agreement shall be considered intellectual property and must be treated confidentially as a business secret of SSC-Services GmbH in accordance with § 14.
§ 5 Time of Performance, Delays
(1) Any information with regard to time of delivery and performance shall be non-binding, unless otherwise stated by SSC-Services GmbH in writing. SSC-Services GmbH reserves the right to perform partial services insofar as the delivered parts can be used by the purchaser in a practical manner.
(2) Terms of delivery and performance shall be extended by the period of time in which the purchaser is in default of payment from the contract and for as long as circumstances exist, for which SSC-Services GmbH does not bear responsibility, but which will prevent SSC-Services GmbH from rendering delivery of service, with such extension to continue during a reasonable start-up time after the end of the delay. Such circumstances shall include force majeure, labour disputes, or a lack of or insufficient cooperation by the purchaser.
(3) If the contractual partners subsequently agree to perform different or additional services affecting the stipulated terms, these terms shall be prolonged by a reasonable period of time.
(4) Any reminders and setting of deadlines on the part of the purchaser must be in writing in order to be effective. Any grace period must be reasonable. A period of less than two weeks shall only be appropriate in case of special urgency.
§ 6 Contractual Obligations and Termination of the Contract
(1) A termination of any further exchange of performances (e. g. in the event of withdrawal from the contract, notice given for good cause, reduction of compensation instead of performance of service) must always be accompanied by a statement of the reasons and the imposition of a time period within which to remedy the problem (as a rule, at least two weeks) and may be issued only two weeks after the expiration of the time period. In cases falling under § 323(2) German Civil Code (BGB), a time delay may be waived. The party which is principally responsible for the nuisance shall not be entitled to demand a reversal of the transaction.
(2) All statements in this connection must be in writing to be valid.
§ 7 Remuneration, Payment
(1) After delivery of the software has occurred (in the case of training courses, after completion of training) the payment agreed is payable within 14 days after receipt of invoice at the purchaser, without deduction.
(2) Travel costs, expenses, accessories and telecommunication costs are also to be reimbursed in accordance with time and material expended. Any additional performance or service demanded by the purchaser (e. g. consulting and support for the program installation) shall be invoiced in accordance with the current price list of SSC-Services GmbH.
(3) The VAT in the respective statutory amount will be added to all prices.
(4) The purchaser may offset payment only against uncontested or legally valid established claims by SSC-Services GmbH. Notwithstanding § 354 a HGB (German Commercial Code), the purchaser may only assign claims based on this contract to third parties with the prior written consent of SSC-Services GmbH. A right of retention can only be claimed by the purchaser in view of the respective contract.
§ 8 Obligations of the Purchaser
(1) The purchaser is obligated to inspect all items delivered by SSC-Services GmbH immediately upon delivery pursuant to the legal commercial regulations (§ 377 German Commercial Code (HGB)) by a qualified staff member and report any detected faults in writing under detailed description of the defect. The purchaser shall examine each module thoroughly in advance with regard to usability in in the specific situation before beginning operational use. This also applies to programs received by the purchaser as part of the warranty and a possible maintenance contract.
(2) The purchaser shall take adequate measures in the event that the programs do not operate properly in whole or in part (e.g. through backup copies, fault diagnosis, regular checking of the results). It is in the area of responsibility of the purchaser to ensure the operation of the required working software environment.
§ 9 Material Defects
(1) The software possesses the agreed-upon characteristics, is suitable for the applications assumed by the contract and which are otherwise standard, and has usual quality of software of this type; however, it is not free of errors. Impairment in the software’s functioning which results from hardware defects, environmental conditions, improper operation and the like, is not a defect. An insignificant reduction in the quality not taken into account.
(2) In case of material defects SSC-Services GmbH can provide subsequent performance in the first instance. Subsequent performance shall take place at the choice of SSC-Services GmbH, by elimination of the defect, through delivery of a program free from the defect, or by SSC-Services GmbH showing possibilities to avoid the impact of the defect. An equivalent new program version or the equivalent previous program version free of such defect must be accepted by the purchaser, when this is reasonable.
(3) The purchaser shall support SSC-Services GmbH in the analysis of errors and elimination of defects through detailed description of errors, informing SSC-Services GmbH comprehensively and granting the time and opportunity required for eliminating such defect. At its discretion SSC-Services GmbH may perform the elimination of defects on-site or in its own premises. SSC-Services GmbH can also provide services by means of remote maintenance. At his own expense the purchaser has to provide the required technical preconditions and grant SSC-Services GmbH access to his IT system after corresponding prior announcement.
(4) SSC-Services GmbH can demand additional charges should the software be modified, used outside the prescribed environment or improperly operated. SSC-Services GmbH can demand reimbursement for expenditure if no defects are found. The burden of proof lies with the purchaser. § 254 BGB (German Civil Code) shall apply accordingly.
(5) If SSC-Services GmbH ultimately refuses to provide subsequent performance or if this finally fails or is unreasonable to the purchaser, the purchaser shall be entitled to withdraw from the contract subject to the conditions of § 6 or correspondingly reduce the remuneration and demand compensation or reimbursement for expenditure, in accordance with § 11. The claims shall expire according to § 12.
§ 10 Defects of Title
(1) SSC-Services GmbH ensures that the contractual use of the software by the purchaser does not in any way conflict with third-party rights. In the event of defects of title, SSC-Services GmbH grants warranty at its discretion by providing the purchaser with a legally faultless application of the software or equivalent software.
(2) The purchaser shall inform SSC-Services GmbH immediately in writing should any third party make infringement claims (e.g., copyright or patent rights) against him. The purchaser shall authorize SSC-Services GmbH to conduct any legal actions against the third party on its own account. If SSC-Services GmbH makes use of this authorization, the purchaser may not accept the third party’s claims without the consent of SSC-Services GmbH. SSC-Services GmbH shall contest claims by third parties at its own expense and release the purchaser from all costs interconnected to defending against these claims, insofar as these are not occasioned by conduct by the purchaser in violation of his obligations (e.g. the use of programs in violation of the contract).
(3) § 9 section 2 to 5, 7 shall apply accordingly. § 6 shall apply for the termination of the exchange of services. § 11 shall apply for the liability and § 12 shall apply for the limitation of actions.
§ 11 Liability
(1) SSC-Services GmbH shall be liable for damages or compensation for vain expenses, on any legal grounds whatsoever (e.g. from contractual obligations under legal or similar transactions, breaches of obligations or tortious acts), up to the following extend:
(a) The liability in the event of wilful acts and under warranties is unlimited.
(b) In the event of gross negligence, SSC-Services GmbH is liable up to the amount of the typical damage foreseeable upon the conclusion of the contract.
(c) In the event of a negligent breach of a duty which is so material that the purpose of the contract might be endangered (cardinal duty), SSC-Services GmbH shall be liable for the damage typical for such contracts and foreseeable at the conclusion of the contract, at the most, however for EUR 50.000,00 per claim and EUR 100.000,00 for all claims in total.
(2) The right to contest the charge of contributory negligence remains open to SSC-Services GmbH. The purchaser has in particular the obligation to carry out data backup and virus protection according to the current state of the art.
(3) For violation of life, body and health and for claims from the product liability law, the legal regulations apply.
§ 12 Limitation of Actions
(1) The period of limitation shall be
(a) one year for claims for return of payment due to withdrawal from the contract or demand for reduction, following delivery of the software, however not less than three months from submittal of the legally binding declaration of withdrawal or reduction for claims;
(b) one year for other claims arising from defects;
(c) one year for cases of defects of title when the defect of title does not fall under a third party’s interest in property, on the basis of which he/she can demand the objects outlined in § 3 section 5;
(d) one year for other claims for damages or compensation for losses, beginning at the time in which the purchaser officially had knowledge of such circumstances or was caused to obtain such knowledge without gross negligence on his part.
The limitation shall take effect at the latest on the expiry of the maximum periods specified in § 199 of the German Civil Code (BGB).
(2) However, the statutory periods of limitation apply in case of damages and compensation for futile expenditure based on intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in § 11 section 3.
§ 13 Beginning and End of the Purchaser’s Rights
(1) Ownership of items delivered and the rights pursuant to § 4 shall not be transferred to the purchaser until complete payment of the purchase price. Prior to this the purchaser only has a provisional right of use under the law on obligations which can be revoked according to subsection 2.
(2) SSC-Services GmbH may revoke rights as per § 4 for good cause and under the provisions of § 6. Good cause shall be deemed to exist, in particular, if the purchaser fails to pay the amount due or continues violating the obligations defined in § 4 in a considerable manner despite written notice.
(3) If the right of use has, according to § 4 not become effective or terminates, SSC-Services GmbH may request that the purchaser returns all items transferred or provide a written assurance that these have been destroyed and, in addition, request the deletion or destruction of all copies and a written assurance thereof.
§ 14 Nondisclosure
(1) The contract partners hereby agree to treat all information which they became aware of or received from the other party prior to the conclusion of or during the term of the contract (e.g. software, documents, information), which are protected by law, or obviously contain business or company secrets or are marked as confidential, notwithstanding the expiration of the contract, unless such information is publicly known in the absence of a breach of this confidentiality covenant. The contract partners shall store and secure these items in such a manner that that access by third parties is impossible.
(2) The purchaser will only make contractual materials available to those employees and third parties who require access to them in the performance of their job-related duties. He shall instruct these persons regarding the confidentiality of the materials in question.
(3) SSC-Services GmbH stores the customer information required for processing the transaction in compliance with legal data protection provisions.
§ 15 Final Provisions
(1) Modifications and amendments of the contract require the written form in order to be valid. The requirement of the written form is also satisfied by a transmission in text form, especially by fax or email.
(2) The purchaser agrees that SSC-Services GmbH stores and processes data of the purchaser within its business activity. SSC-Services GmbH shall observe the provisions of the data protection law.
(3) The laws of the Federal Republic of Germany shall apply under exclusion of the UN Purchasing Law. The place of performance and legal venue for all disputes arising from and in connection with this contract shall be the registered office of SSC-Services GmbH for contracts with business owners.
(4) In case of any differences of opinion arising under or in connection with this contract or any supplements or additions thereto which they are unable to resolve themselves, the contracting parties agree to call on the conciliation office of the German Association of Law and Informatics [Deutsche Gesellschaft für Recht und Informatik e. V. – DGRI] (www.dgri.de) in order to resolve the dispute fully or partially, provisionally or finally according to the DGRI conciliation rules in the version in force at the time the conciliation proceedings are initiated. The statute of limitations for all claims arising from the matter in dispute shall be suspended from the request for conciliation until the end of the conciliation procedure; § 203 German Civil Code (BGB) shall apply accordingly.