General Terms and Conditions
The following Terms and Conditions of Data Design System GmbH (referred to as DDS) are constituent of the contract . Changes to these terms and conditions are not accepted, unless expressly agreed in writing by DDS. These terms of sale apply, even if DDS in the knowledge of conflicting or of differing conditions of sale of the customer, extended delivery or services. These conditions are valid for all future business. Further agreements, between DDS and the licensee for the performance of the contract, are to be laid down in writing.
Offers from DDS are not-binding. For an offer to qualify as an order, DDS should receive within 14 calendar days an order confirmation or accept delivery of the goods. After the expiry of the deadline the offer will be deemed rejected. If DDS does not create an order confirmation, the statement is considered as confirmation. Shipping costs are calculated separately, if requested by the licensee, DDS will add shipping insurance at additional cost. If there is more than 6 months between conclusion of the contract and the agreed delivery date or if the delivery is delayed by the customer after the expiry of this period, then the prices will be based on the time of delivery. Notwithstanding, we reserve the right to increase customer prices due to increases in cost. If a resulting price increase is more than 5% of the original net purchase price, then the licensee has the right to cancel the contract. VAT is not included in our prices; it will be applied at the statutory rate on the day the invoice is issued.
Payment, Late Payments
The deduction of discount requires special written agreement. Unless the order states otherwise, the purchase price is net without deduction within 14 working days from the date of payment. If the customer does not pay within the agreed time period, DDS is entitled to demand the statutory default interest on late payments. The proof of a higher damages caused by default remains unaffected. Where DDS has agreed to allow the customer payment by instalments, it is conditional on the individual rates are to be paid monthly in advance, before the 5th of each calendar month. It is not the date of the statement, but the money received by DDS. The total settlement amount is immediately and without restriction payable and due, if the customer has more than10 day’s imprisonment for debt in arrears. Offsetting claims are entitled to the customer only if its counterclaims are valid or undisputed. Rights of lien can be made valid only from the same contractual relation.
Time Periods for Supplies or Delivery
The commitment by DDS to a delivery date is dependent on the clarification of all technical issues, the timely receipt of all customers supplied documents and the timely and proper performance of other obligations of the clients. The agreement of delivery dates and performance deadlines must be in writing.
DDS is liable in accordance with statutory provisions, if the delay is due to a representative of DDS through intentional or grossly negligent infringement; or fault of our representatives or agents. DDS is also liable in accordance with the statutory provisions, as far as we are representing delivery delay on the culpable violation of a contractual obligation. In this case however the payment of damages liability is limited to the foreseeable, typically relief damage. DDS excludes its liability for easily negligent obligation injuries, if no contractual obligations or cardinal obligations, damage from the injury of the life, the body, which concerns health or warranties or demands is concerned after the product liability law. As far as to that extent the liability is impossible or limited, this is valid also for the personal liability and obligation injuries of co-workers, salesmen and other representatives. The period of limitation for demands, which are not based on a attributable deliberate conduct, directed against DDS, consists of one year.
Within the bounds of current technology, it is not possible to arrange software in such a way that it works completely error free in all applications and combinations and under all conditions. This is valid in particular in use with various hardware and operating system components. The subject of the contract is from there always only the software, which is in the sense of the useful program description in principle. The program is tested by DDS using current industry methods and examined for its general fitness regularly. DDS points out that each contracting party has to provide in the context of its IT security procedures for regular backup of its data on suitable backup media (CD-ROM, Streamer, etc.).
The warranty rights of the customer for defects presuppose that if within five weeks of receipt in writing of notice of the shortcoming, the defect remains, and are easily noticeable to an average customer. Among the defects are particularly serious, easily visible damage to the goods and deviations from the contractually agreed functionality. Furthermore supplying another thing or commodity in to small quantity falls under it. Deficiencies in the delivery of goods are resolved by DDS within the statutory time limit for delivery notification of the user. This occurs after the statutory warranty rights of the buyer. DDS is committed to all subsequent performance necessary to pay expenses to the extent that these are not increased, that the goods are supplied to a place other than the place of delivery. In case of the replacement the customer is obligated to return the defective product.
If the rectification fails within a reasonable time or fails a 2nd Time, the customer is entitled to withdraw from the contract or rebate of compensation (price reduction). The rectification is to be applied only if DDS were granted sufficiently opportunity for the replacement or rework, without obtaining the desired success, if it were refused or deferred, if justified doubts about the chance of success exist or if an unreasonableness for other reasons is present.
Software maintenance and training course services
If software maintenance is also a contractual item, it is valid that DDS takes over the maintenance of and maintenance work on the software, required for the organizational functional capacity of the program, for the duration of the servicing contract. This refers in particular If the supply of updates (revised and improved versions) in non-specified time intervals and the use of the DDS hotline.
Training courses are accounted for after tariffs or after expenditure. A certain training course success cannot be guaranteed. The settlement of software maintenance fees is from the 1st following month after the award of the contract until the end of the current year. The fee is calculated on the complete program scope and is always due for the calendar year in advance. The software maintenance contract is valid first up to the end of the following calendar year and extends automatically for one year, if it is not cancelled less than 3 months before the end of the year. DDS is at the earliest justified after the end of one year to increase by unilateral assertion the maintenance payment to the end of the year. The increase takes place up to the maximum payment, which is valid for new clients. With an increase of more than 5% within 4 weeks after receipt of the adaptation assertion an extraordinary right to give notice is entitled to the customer.
Scope of Use
The DDS software is distributed protected by Section 69a of the Copyright Act. None will transfer use and rights of exploitation, which go beyond the use of the received software package to the contracting party. All additional use and utilization, modification, handling and duplication as well as each type (alleged) of the error correction are contrary to the terms of the agreement and make the contracting party if necessary liable to pay damages. All types of programming activity, in particular the further technical data adaptation of the computer program to the specific purposes of the customer as well as the development of the software, going beyond permissions of the scheme mentioned of the Copyright Act, is exclusively carried out by DDS. The contracting party can use the operating functions of the software without reservation and adjust it to its operational interests. The transfer of usage rights is forbidden. The licensee has simple nonexclusive right of use on the software delivered in the contract, and its technical data catalogs. The customer is entitled to use the supplied programs and data catalogues in accordance with condition of the contractual scheme in form so called single user license or as multi user license. With a multi user license it is valid that this is permitted in the context of a network system up to the contractually determined number of users. For instance the supplied printed documentation may not be copied, also not in part. During the use of the software the original disk must be available. Demo programs and versions may be used only for the purpose of demonstration or to test purposes and not under any circumstances for commercial purposes.
Retention of Title
All supplies are executed under retention of title. In the event of actions contrary to the terms of the customer agreement, in particular with delay of payment DDS will be justified to take the supplied products back. The withdrawal is also the resignation statement from the contract and result in the seizure of the supplied products. In the case of attachment or other interference by third parties, the customer must immediately notify DDS in writing. The transfer of title of the subject of the contract cannot be used as security.
Intellectual Property Rights
DDS assumes that for the area of the Federal Republic of Germany and Austria that the contractual use of the software does not infringe rights of third parties. The customer is obligated, to inform DDS immediately of any third party rights violations. DDS exempts the customers from claims resulting from alleged infringement of intellectual property rights.
DDS is entitled to store or process all data associated with the business relationship received from the buyer within the meaning of data protection.
Regarding all requirements and rights from this contract the non-unified law of the Federal Republic of Germany is valid. The validity of the UN International Sale of Goods (CISG) is expressly excluded.
Court having Jurisdiction
Exclusive area of jurisdiction is with contracts with buyers, legal entities of the public right or publicly legal special estates the court responsible for our registered place of business.
If any of these terms and conditions in whole or in part, an integral part, or wholly or partially invalid, void or voidable or, so this shall not affect the validity of the remaining clauses of the contract. If the scheme concerned has to be replaced, then considering the mandatory legal regulations, the replacement shall have the economic sense and purpose desired of the ineffective, futile or contestable regulation. The same is valid for possible loopholes.