Terms and Conditions
§ 1 business purpose and scope of the development conditions
The business activities of the 5 POINT AG (hereinafter: the developer) is the creation of customized individual software including all hereby standing in the context of other services such as consulting, installation, customer training, update development etc. These services are provided to the developer solely on the basis of this Terms and Conditions. Conflicting conditions of the customer (hereinafter: Customer) shall not be valid unless they are approved in writing by the developer. In particular, the silence of the developer is not considered to conflicting conditions constitute consent to this. With the signing of the written order, the customer accepts the terms and conditions of the developer.
§ 2 Contract Basics, software specification and specification
(1) The basis of any development order is completed under the provisions of these Terms individual written contract. In this Agreement, all relevant context data of the order shall be determined, but at least the nature and scope of the contractual services, in particular, which fringe benefits of the development activities also are provided, the remuneration and fixed transactions at the completion dates. In case of inconsistencies between these Terms and the Individual Contract, these terms shall prevail if the deviations in the contract are not expressly designated as deliberate exception to these Terms.
(2) The technical basis for each development contract is the relevant specification that is created by the customer. The specification shall be accepted by both parties, by signing and included in the contract. Can the parties do not agree on the content of the specification, both parties shall have an extraordinary right of termination, the claim for damages is excluded in this case. A possible participation of the developer in the creation of the specification is to be paid for separately.
(3) Further technical descriptions in addition to the requirements specification may also be recognized by the signature of both parties according to their content and incorporated into the contract. In case of contradictions between various development documents is the mandatory-LoR significantly when the deviation thereof is not expressly identified as intended.
(4) Each Contracting Party is obliged to appoint with the signing of the contract at least one responsible person who is authorized to act as representative in terms of the contractual relationship and all associated herewith decisions to be taken. Decisions on major additions / changes or other modifications of the contract by persons other than the named in the contract or the legal representatives of the Parties have no binding effect.
§ 3 delay
Is responsible for creating the software a fixed date agreed and this is not adhered to by the developer, the customer has to remind the developer initially writing. Cancellation by the customer of the contract is permitted only if this has set a reasonable grace period for completion after warning the developer and is not made within that period, a completion. The period must not be less than 4 weeks. The cancellation is excluded if the excess of the completion date due to subsequent changes requested by the customer.
§ 4 Installation and instruction
(1) The contract for the development of customized software according to specification does not include the installation of software on computer systems the customer. If the developer install the software on the client, this requires separate Beauftra-tion and must be paid separately by appointment.
(2) After installing the program, the developer has the customers on request in the application of the software. The briefing should also be paid for separately by appointment.
§ 5 changes
(1) the customer change requests in terms of comprehensiveness, the program structure, the screen design or other characteristics of the licensed software does not have to take into account the developer, insofar as they represent a deviation from the original Ver-contract content, especially not with the software development underlying specification or other specifications match.
(2) The developer is free to consider the changes you want for a reasonable additional fee. Calc-culation basis of the supplementary payment, are the necessary temporal overhead and calculated by the developer for the overall production rate of remuneration. The developer is not required to disclose his calculation, he must understand, however, the amount of the additional fee justified. The hours / days remuneration for admissions pursuant to § 4 of this contract shall not be substantially exceeded as imputed base.
§ 6 Obligation to Cooperate
(1) The customer is obliged to ensure appropriate participation in the program creation. In particular, the duty to cooperate includes the provision of information necessary for the development DV-technical and organizational project (hardware and operating systems, standard software used, organization charts) and, if the hardware on which the program is to be used later. While necessary test runs, and the acceptance test, the customer is physically present in the form of representative designated in the contract, to judge defects, feature enhancements, feature cuts and changes to the program structure and decide. The customer also provides any required test data.
(2) If the developer provides the customer designs, program evaluation versions or the like, they are checked by the customer conscientious. This is already visible defects and / or change requests are known to admit at this point. If the customer fails the test and / or the complaint does not apply with respect to this error, the warranty obligations of the developer.
(3) All documents and materials that are left of a Contracting Party by the other party for the performance of the contract are to be treated with care and must not be reproduced made available only in the context of contract and third parties. They are the other Party, including custom built copies returned once they are no longer required for program creation.
§ 7 source code handover and re-use
(1) The developer provides a piece of executable program on disk, including user documentation. If the client wishes the delivery of other pieces of the program and / or the user documentation, so he made an appropriately be paid for separately. The package of services also includes the software underlying source code in the specification to be taken programming language. Contains the specifications in this regard is no provision in a common higher Program-ming language to be used. To the source code is not only the pure program code, but also a descriptive and explanatory this documentation, the minimum scope should be such that after a reasonable training period an understanding of the structure and functioning of the program is made possible. These filings partially in the source code (comment lines) to be included, but shall not be limited thereto itself, but must at least one zusammenhän-lowing overview in writing include.
(2) The developer shall provide the customer for all currently known types of use a simple, transferable, irrevocable and un-limited license. Edits, rearrangements and changes in terms of §§ 23, 39 of the Copyright Act are permitted only with the written consent of the developer. The customer is responsible for ensuring third parties to whom he transfers his right of use also to commit accordingly.
§ 8 Warranty
(1) The developer is responsible for ensuring that the software is not subject in all its parts, including the documentation with defects that affect the ordinary or assumed under the contract use considerably. The Customer acknowledges that not every failure in the program flow is a significant deficiency, as in the prior art, a completely error-free software is not developable.
(2) defects within the meaning of the above provision will be in accordance with the developer within the warranty period of six months from acceptance. § 11 of these Conditions, upon notification corrected by the customer in the way of repair. The removal of defects shall be made within a reasonable time under consideration of the mutual interests. If the repair fails three times, the customer may either cancel the contract or demand a reduction in the remuneration.
(3) If the customer changes of any kind to the contract before software invalidates the warranty of the developer.
§ 9 Liability
(1) The developer shall be liable only for intent and gross negligence. In the case of willful misconduct of the Customer, the liability follows the legal regulations, in the case of grossly negligent causation of the liability of the developer is limited to three times the respective remuneration and on such damages arise within the scope of a software license can be typically calculated; liability for direct or indirect consequential damages, including lost profits is excluded.
(2) The liability for data loss is limited to the typical restoration costs, which would have occurred at regular and risk-appropriate backup copies.
§ 10 Remuneration
(1) The sales tax will be calculated, if not expressly stated in the price included in the offer / individual contract. The payment is due upon receipt of invoice and is payable immediately.
(2) A set-off against claims of the developer on remuneration and reimbursement of expenses is permitted only with undisputed or legally established claims.
§ 11 Validity of DIN Standards
(1) arises upon the execution of this contract between the Parties disagreements about the content of IT technical terms and symbols, quality requirements, format requirements, or similar, compliance with the relevant at the time of conclusion of the contract applicable DIN standards as agreed.
(2) If a DIN standard of conclusion, but changed before completion of the program, the developer is kept within reasonable limits, taking into account the requirements of the new standard. Significant changes of the programming work as well as extensive changes to the program he must not make, in so far as this can be achieved only through a significant time or financial costs.
§ 12 Acceptance
(1) After completion of the development work, the customer must install the software within two weeks, to allow the implementation of an acceptance test. If the customer fails to install within that period, the software is considered abgenom-men. This does not apply if the installation is performed by the developer.
(2) After installing the program, the developer has by appropriate acceptance tests, the presence of assured properties as well as the main program functions after. At the request of the customer are to be used and perform additional tests to a reasonable extent, as it deems necessary to examine the practical program for an acceptance test by him provided test data. Additional test runs are reported separately by the customer pursuant to an appropriate agreement to pay.
(3) If the software has passed the acceptance test, the Customer shall, at the request of the developer required to submit a written statement of acceptance. Optionally identified minor deficiencies are noted in the Statement of Acceptance. The decrease may not be refused for minor defects. The developer can use to submit the declaration of acceptance a reasonable period, the Software shall be considered accepted after the expiry.
§ 13 employees
(1) During the current business relationship and further twelve months after the end of the last contract between 5 Point AG and the customer is the customer prohibited, with the latest (free or salaried) employees of the
Complete 5 Point AG employment contracts or to issue these orders. This also applies to former employees, provided that the termination of the employment contract with
5 Point AG or the termination of the last order between 5 Point AG and freelancers within the previous six months. In case of doubt, the Customer is obliged to inform themselves about at 5 Point AG.
(2) For a violation of this provision the customer shall without prejudice to proof and claim higher damages by 5 Point AG, at 5 Point AG, a contractual penalty in the amount of € 50,000 - to pay.
§ 14 Other
(1) Any changes, additions or specifications of these conditions, including this clause itself or the jewei-time individual contractual agreements including technical documentation, and specific assurances and agreements must be in writing.
(2) If a provision in these Conditions be invalid, this shall not affect the validity of the remaining provisions. Occurs it economically closest replacement system to replace the invalid provision. Can not parties to such rules some, so should a to be determined by the Chamber of Lawyers Frankfurt am Main arbitrator to make a binding for both sides Policy.
(3) In all disputes relating to these terms and conditions and here under contracts concluded exclusively the law of the Federal Republic of Germany under exclusion of the UN Sales Convention.
(4) The place of performance for all disputes arising from the respective contract obligations is Darmstadt. Jurisdiction for any disputes relating to these terms and conditions and under contracts entered here is Darmstadt.
Darmstadt, May 3, 2007
5 POINT AG