1 Validity of the contractual conditions
- Unless otherwise agreed, these General Terms and Conditions of Contract shall apply exclusively to the sale of standard software, to services agreed within the scope of the purchase contract, to contracts for maintenance services, to contracts for a software project, to pre-contractual obligations and to all contractual relationships to be entered into by us under which we have to provide services of any kind whatsoever in business dealings. Other contractual conditions shall not become part of the contract, even if we do not expressly object to them.
- Even if no further reference is made to this when concluding contracts of the same type, our General Terms and Conditions of Contract shall apply exclusively in the version which can be called up on our homepage (enter exact designation) when the purchaser makes the declaration, unless the contracting parties agree otherwise in writing.
- In the case of contracts with consumers, only §§ 3, 4, 7 para. 1-3 and 14 shall apply; in all other respects, the statutory provisions shall apply.
- The delivery of standard software is subject to §§ 433 ff. BGB (GERMAN CIVIL CODE). For supplementary services (e.g. installation, parameterization, training, maintenance), §§ 611 ff. BGB.
§ 2 Conclusion of contract
- Offers of APPbyYOU GmbH are subject to change and non-binding, unless the offer is designated in writing as binding. A legal binding comes about only through a contract signed by both parties or through a written order confirmation of APPbyYOU GmbH, furthermore through the fact that APPbyYOU GmbH begins with the contractual performance after the order. APPbyYOU GmbH can demand written confirmations of verbal contract declarations of the customer.
- The purchaser shall be bound by declarations concerning the conclusion of contracts (contract offers) for 4 weeks.
- For deliveries and services of other kind (e.g. software maintenance, hardware delivery, setup and installation of the software) separate contracts are to be concluded. APPbyYOU GmbH is obligated for the duration of 3 months from the contract for the purchase of the software to conclude a contract for other services (e.g. installation, parameterization, training) and a contract for software maintenance at the currently valid conditions at the request of the customer. In all other respects, both contracting parties are free to conclude such contracts.
§ 3 Subject matter of the contract, scope of services
- The subject of these contractual terms and conditions is only the delivery of standard software and the granting of the rights of use in accordance with § 4, as well as the services ordered at the time of purchase, e.g. training in accordance with § 15 or maintenance.
- Prior to conclusion of the contract, the Purchaser has verified that the specification of the software corresponds to its wishes and requirements. He is aware of the essential functional features and conditions of the software.
- Decisive for the scope, type and quality of the deliveries and services is the contract signed by both parties or the order confirmation of APPbyYOU GmbH, otherwise the offer of APPbyYOU GmbH. Other specifications or requirements will only become part of the contract if the contracting parties agree on them in writing or APPbyYOU GmbH has confirmed them in writing. Subsequent changes to the scope of services require written agreement or written confirmation by APPbyYOU GmbH.
- Product descriptions, representations, test programs, etc. are descriptions of performance, but not guarantees. A guarantee requires a written declaration by the management of APPbyYOU GmbH.
- The Purchaser shall receive the software consisting of the program and the performance description. The technique of delivery of the software shall depend on the agreements; in the absence of other agreements, the program and manual shall be delivered on CD-ROM. The purchaser has no right to be provided with the source code.
- APPbyYOU GmbH provides all deliveries and services according to the state of the art.
§ 4 Rights of the Purchaser to the Software
- The software (program and description) is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyrights to the software as well as to other objects, which APPbyYOU GmbH provides or makes accessible to the customer within the scope of the contract initiation and execution, are exclusively entitled to APPbyYOU GmbH in the relationship of the contractual partners. Insofar as third parties are entitled to the rights, APPbyYOU GmbH has corresponding exploitation rights.
- The Purchaser is only entitled to process its own data with the program itself in its own business for its own purposes or to use the program for its own business purposes. All hardware on which the programs are copied or taken over in whole or in part, for a short time or permanently, must be in the direct possession of the Purchaser. Further contractual rules of use (e.g. limitation to the number of workstations or persons) are to be technically set up and practically adhered to. APPbyYOU GmbH hereby grants the customer the necessary authority 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.
- The Purchaser may make the backup copies of the programs required for safe operation. The backup copies must be stored securely and, as far as technically possible, must be provided with the copyright notice of the original data carrier. 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 product description and other documents provided by APPbyYOU GmbH may only be copied for internal purposes.
- The Purchaser is only entitled to pass on the software or parts thereof to a third party in accordance with the following rules and after the following procedures have been carried out:
a) Only an original data carrier (cf. § 3 Para. 5) may be passed on. Other software or the software in another state may not be passed on.
b) The Purchaser shall delete all other copies of the software (irrespective of the status), in particular on data carriers and in fixed or working memories. He definitively gives up the use of the software. He commits himself to carry out these procedures before passing on the original data carrier to the third party and to confirm them immediately in writing to APPbyYOU GmbH.
c) The passing on to the third party takes place in perpetuity, i.e. without claim for return or option for reacquisition.
d) The third party commits itself in writing directly to APPbyYOU GmbH that it will comply with § 4, § 13 paragraphs 2 and 3, § 14 and § 16 of these general contractual conditions directly to APPbyYOU GmbH.
e) The written consent of APPbyYOU GmbH is available. APPbyYOU GmbH is obligated to consent if no important reasons (e.g. protection of competition) stand in the way. In the case of a violation of these rules by the customer, he owes APPbyYOU 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 APPbyYOU GmbH according to the then current price list, at least in the amount of the purchase price agreed upon today.
- The rule according to para. 2, para. 3 and para. 4 d, e shall also apply if the Purchaser carries out error correction or (as far as permissible) other processing of the programs or uses the software for training purposes.
- The customer may decompile the interface information of the programs only within the limits of § 69 e UrhG and only after he has informed APPbyYOU GmbH in writing of his intention and has requested the transfer of the necessary interface information with a period of at least two weeks. For all knowledge and information that the customer obtains about the software in the course of decompiling, § 14 applies. Prior to any involvement of third parties, the customer shall provide APPbyYOU GmbH with a written declaration from the third party that the third party is directly obligated to APPbyYOU GmbH to comply with the rules set forth in §§ 4 and 14.
- All other acts of exploitation, in particular the rental, lending and distribution in tangible or intangible form, used software by and for third parties (e.g. through outsourcing, computer center activities, application service providing) are not permitted without the prior written consent of APPbyYOU GmbH.
- Contractual objects, documents, proposals, test programs, etc. of APPbyYOU GmbH, which become accessible to the customer before or after the conclusion of the contract, are considered intellectual property and business and trade secrets of APPbyYOU GmbH. They may not be used in the same way without the written permission of APPbyYOU GmbH and must be kept secret in accordance with § 14.
5 Time of performance, delays, place of performance
- Information on delivery and performance dates are non-binding, unless they are described in writing by APPbyYOU GmbH as binding. APPbyYOU GmbH can provide partial services, as long as the delivered parts are useful for the customer.
- Delivery and service deadlines are extended by the period in which the customer is in default of payment under the contract and by the period in which APPbyYOU GmbH is prevented from delivery or service by circumstances for which it is not responsible, and by a reasonable start-up time after the end of the impediment. These circumstances also include force majeure and industrial action. Deadlines are also considered extended by the period in which the customer does not provide an act of cooperation contrary to the contract, e.g. does not provide information, does not provide access, does not deliver an order or does not make employees available.
- 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.
- Reminders and setting of deadlines by the purchaser must be in writing to be effective. A period of grace must be reasonable. A period of less than 2 weeks shall only be reasonable in case of special urgency.
- The place of performance of services is the place where the service is to be provided. For the rest, the place of performance for all services from and in connection with this contract is the registered office of APPbyYOU GmbH. 6 Contractual Obligation and Termination of Contract 1. Any termination of the further exchange of services (e.g. withdrawal, reduction, termination for cause, compensation for damages instead of performance) must always be threatened by naming the reason and setting an appropriate deadline for elimination (usually at least two weeks) and can only be declared within two weeks after expiration of the deadline. In the cases provided by law (cf. § 323 (2) BGB) the setting of a time limit may be omitted. Anyone who is wholly or partly responsible for the disruption may not demand reversal of the contract. All declarations in this context must be made in writing in order to be valid.
§ 7 Remuneration, payment
- The agreed remuneration is due after delivery/installation of the software (in case of training after execution of the training) and receipt of the invoice by the customer without deduction and payable within 10 days. APPbyYOU GmbH is entitled to demand a deposit of a maximum of 50% of the agreed remuneration upon conclusion of the contract.
- In the absence of any other agreement, the respective price and conditions list of APPbyYOU GmbH applies, which can be accessed via the homepage of APPbyYOU GmbH.
- Travel costs, expenses, accessories, shipping costs and telecommunication costs are to be paid additionally according to expenditure. Additional services requested by the customer (e.g. consulting and support for program installation) will be invoiced according to the current price list of APPbyYOU GmbH. However, a list price increase is limited to 3 % per year.
- Value added tax is added to all prices.
- The customer may only offset claims that are undisputed by APPbyYOU GmbH and have been legally established. Except in the area of § 354 a HGB (German Commercial Code), the customer may only assign claims from this contract to third parties with the prior written consent of APPbyYOU GmbH. The customer is only entitled to a right of retention or the plea of non-performance of the contract within this contractual relationship.
§ 8 Duties of the purchaser
- The customer is obligated to have all delivery items of APPbyYOU GmbH expertly examined immediately after delivery and after making them available in accordance with the regulations of commercial law (§ 377 HGB) and to notify APPbyYOU GmbH of any detected defects in writing with a precise description of the defect. The customer shall thoroughly test each module for usability in the specific situation. This also applies to programs which the purchaser receives within the scope of the warranty and a maintenance contract.
- The Purchaser shall take reasonable precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular testing of results, emergency planning). It is his responsibility to ensure the functionality of the working environment of the program.
§ 9 Defects of quality
- The software has the agreed quality and is suitable for the contractually presupposed use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, operating errors or the like is not a defect. An insignificant reduction in quality shall be disregarded.
- In the case of material defects, APPbyYOU GmbH can first provide supplementary performance. The supplementary performance is carried out at the discretion of APPbyYOU GmbH by removing the defect, by delivering software that does not have the defect or by APPbyYOU GmbH showing possibilities to avoid the effects of the defect. Because of a defect, at least three attempts of rectification are to be accepted. An equivalent new program version or the equivalent previous program version without the defect is to be accepted by the customer if this is reasonable for him.
- The customer supports APPbyYOU GmbH in the analysis of errors and elimination of defects, in particular by describing occurring problems in detail, informing APPbyYOU GmbH comprehensively and granting APPbyYOU GmbH the necessary time and opportunity for the elimination of defects. The APPbyYOU GmbH can carry out the defect removal at its choice on site or in its business premises. APPbyYOU GmbH can also provide services by remote maintenance. The customer must provide the necessary technical requirements at his own expense and grant APPbyYOU GmbH electronic access to the software after appropriate prior notification.
- The contracting parties agree on the following defect classes and response times:
a) Defect class 1: Defects preventing operation: The defect prevents business operations at the Purchaser. A workaround is not available: APPbyYOU GmbH begins as soon as possible, at the latest within 12 hours after the error message with the elimination of the error and continues it with vigor until the elimination of the error, as far as reasonable also outside normal working hours (weekdays 09.00 clock to 17.00 clock).
b) Error class 2: Defects hindering operation: The error hinders the business operation of the customer considerably; however, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: APPbyYOU GmbH begins with the error correction on the day after next in case of an error message before 10 a.m., in case of a later error message at the beginning of the following working day and continues it until the elimination of the error within the usual working hours. APPbyYOU GmbH can first show a workaround and eliminate the error later, if this is reasonable for the customer.
c) Error class 3: Other errors: The APPbyYOU GmbH begins within one week with the error removal or removes the error only with the next program version, if this is reasonable for the customer.
- The period according to para. 4 begins with the error message according to § 8 para. 1. For the calculation of the period § 5 para. 2, 3 applies. In case of disagreement about the allocation of an error into the classes according to para. 4 the customer can demand the classification into a higher error class. He reimburses APPbyYOU GmbH the additional expenditure if he does not prove that his classification was correct.
- APPbyYOU GmbH can demand additional costs from the fact that the software was changed, used outside the specified environment or operated incorrectly. It can demand reimbursement of expenses if no defect is found and the customer had not raised the notice of defects without negligence. The burden of proof lies with the purchaser. § 254 BGB shall apply accordingly.
- If APPbyYOU GmbH finally refuses the supplementary performance or this finally fails or is not reasonable for the customer, the customer can either withdraw from the contract within the scope of § 6 or reduce the remuneration appropriately and additionally demand compensation or reimbursement of expenses according to § 11. The claims shall become time-barred in accordance with § 12.
§ 10 Defects of title
- APPbyYOU GmbH guarantees that the contractual use of the software by the customer does not conflict with the rights of third parties. In the event of defects in title, APPbyYOU GmbH warrants that it will, at its option, provide the customer with a legally flawless opportunity to use the software or equivalent software.
- The customer shall inform APPbyYOU GmbH immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) to the software. The customer authorizes APPbyYOU GmbH to conduct the dispute with the third party alone. As long as APPbyYOU GmbH makes use of this authorization, the customer may not acknowledge the claims of the third party without the consent of APPbyYOU GmbH; APPbyYOU GmbH will then defend the claims of the third party at its own expense and indemnify the customer against all costs associated with the defense of these claims, insofar as these are not based on conduct of the customer in breach of duty (e.g. use of the programs in violation of the contract).
- Section 9 (2), (6) and (7) shall apply mutatis mutandis.
§ 11 Liability
- APPbyYOU GmbH provides compensation for damages or reimbursement of futile expenses, regardless of the legal reason (e.g. from legal transactions and obligations similar to legal transactions, material and legal defects, breach of duty and tort), only to the following extent:
a) The liability for intent and warranty is unlimited.
b) In case of gross negligence APPbyYOU GmbH is liable to the amount of the typical and at the time of conclusion of the contract foreseeable damage.
c) In case of not grossly negligent violation of such an essential duty that the achievement of the contract purpose is endangered (cardinal duty; especially delay), APPbyYOU GmbH is liable to the amount of the typical and at the time of conclusion of the contract foreseeable damage, but at most with EUR 10,000.00 per damage case and EUR 50,000.00 for all damage cases from and in connection with the contract as a whole.
- The APPbyYOU GmbH remains open to the objection of contributory negligence. The customer has in particular the obligation to back up data and to defend against malware in each case according to the current state of the art.
- 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 Limitation
- The limitation period shall be
a) in the case of claims for repayment of the purchase price arising from rescission 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 rescission or reduction;
b) in the case of other claims arising from material defects, one year;
c) in the case of claims arising from defects of title, two years if the defect of title does not lie in a right of a third party on the basis of which the third party can demand the return of the items specified in § 3 para. 5 or to demand that they cease to be used;
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 without gross negligence.
e) The limitation period shall commence at the latest upon expiry of the maximum periods stipulated in § 199 of the German Civil Code (BGB). 2. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 11 para. 2, the statutory limitation periods shall always apply.
§ 13 Beginning and end of the rights of the purchaser
- Ownership of the delivered goods and the rights under § 4 shall not pass to the Purchaser until the contractual remuneration has been paid in full. Prior to this, he shall only have a provisional right of use, which is only under the law of obligations and can be revoked in accordance with Para. 2.
- APPbyYOU GmbH may terminate the rights according to § 4 for good cause under the conditions of § 6. An important reason exists in particular if APPbyYOU GmbH cannot be reasonably expected to continue to adhere to the contract, in particular if the customer does not pay the remuneration or violates § 4 in a significant manner.
- If the rights according to § 4 do not arise or if they end, APPbyYOU GmbH can demand from the customer the return of the provided objects or the written assurance that they have been destroyed, furthermore the deletion or destruction of all copies of the objects and written assurance that this has been done.
§ 14 Confidentiality and data protection
- The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) received from the other contracting party before and during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential, even beyond the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contractual partners shall keep and secure these rights in such a way that access by third parties is excluded.
- The customer shall only make the contractual objects accessible to employees and other third parties who require access for the performance of their official duties. He shall instruct these persons about the need for secrecy of the objects.
- APPbyYOU GmbH processes the data of the customer required for the business transaction in compliance with the data protection regulations. APPbyYOU GmbH may name the customer as a reference customer after successful completion of the services.
§ 15 Training
- Training courses take place at the discretion of APPbyYOU GmbH at the customer's premises or at another location to be determined in consultation with the customer. In the case of training at the customer's premises, the customer shall provide the appropriate premises and technical equipment after consultation with APPbyYOU GmbH. In case of a training at another location, the customer rents the premises and provides the necessary hardware and software on site. In case of a training at APPbyYOU GmbH, APPbyYOU GmbH provides the premises and the necessary hardware.
- APPbyYOU GmbH can cancel a training date for an important reason. APPbyYOU GmbH will inform the customer of the cancellation of an appointment in good time and offer alternative dates.
- In the case of justified dissatisfaction of the customer, APPbyYOU GmbH has the possibility to remedy the situation. In all other respects § 6 applies.
§ 16 Conclusion
- 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.
- The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of performance and jurisdiction for all disputes arising from and in connection with this contract is the registered office of APPbyYOU GmbH for contracts with merchants.
- Should any provision of these general terms and conditions of contract be or become invalid, the remaining provisions shall nevertheless remain valid. The same shall apply if these general terms and conditions of contract should contain a loophole requiring regulation.
Balgheim, April 28, 2017 APPbyYOU GmbH - Download link