General Terms and Conditions (GTC) from Zentrum für Digitiale Entwicklung GmbH, Westhausen
I. Validity of these General Terms and Conditions
1. The deliveries and services of ZDE GmbH are provided exclusively on the basis of these General Terms and Conditions. These General Terms and Conditions shall also apply to future deliveries and services, even if they are not expressly referred to in the future.
The contractual relationship between ZDE and the customer is governed exclusively by these General Terms and Conditions. It is irrelevant to the contractual relationship whether the customer concludes any further agreements with ZDE regarding the software, e.g. a license agreement.
Any general terms and conditions or other contractual conditions (e.g. VOF or VOL) of the client are not binding for us, even if the contractor does not expressly object to them. The terms and conditions shall also apply if the customer issues counter-confirmations with reference to its own terms and conditions of business or purchase. Such counter-confirmations are hereby expressly rejected. These General Terms and Conditions are also linked at www.digitaleentwicklung.de; they also apply on the basis of the reference to this storage location on our letterhead.
2. Deviations from these General Terms and Conditions require our written confirmation to the contractor in order to be legally valid.
II. Contractor’s property rights and copyrights to documents and data
1. The contractor reserves the ownership and copyright to drafts, drawings, plans, computer programs, lists, documentation, sections, and other documents and data that it provides to the client with its offer or in fulfillment of an order placed. Such documents and data may only be made accessible to third parties with the prior consent of the contractor. Documents and data provided in connection with offers made by the contractor must be returned to the contractor immediately if the order is not placed.
2. Insofar as programs (software from software development or software adaptation) are also included in the scope of delivery and services, the client shall be granted a simple, non-transferable, and exclusive right of use for these; the client may neither copy the software provided to them nor allow others to use it.
III. Offer and conclusion of contract
1. Offers made by ZDE—including those in brochures, advertisements, etc.—are subject to change and non-binding. We reserve the right to make changes in line with technical progress. The customer is bound to their order for four weeks until it has been accepted by ZDE.
2. Side agreements, amendments, and additions are only effective with written confirmation from ZDE.
IV. Delivery and Performance; Delay
- Delivery dates and deadlines must be agreed in writing to be valid and are always non-binding, unless expressly agreed otherwise. Partial deliveries are permitted.
2. Unless the delivery involves standard software, delivery of the software by ZDE may be made conditional upon the customer entering into a separate license agreement with ZDE. The customer will be expressly notified of this before concluding the purchase contract, if applicable.
3. The agreed delivery/service period shall commence upon conclusion of the contract or upon confirmation of the order by the contractor, but at the earliest when all details of execution have been clarified. Compliance with the delivery/service dates and deadlines requires the timely receipt of all documents to be supplied by the client, necessary approvals, releases, and the timely clarification and approval of technical details. The client is responsible for providing proof of the timely receipt of all necessary cooperation documents.
4. Force majeure, riots, strikes, lockouts, and significant operational disruptions at the contractor’s and its suppliers’ premises through no fault of their own shall alter the agreed delivery/service dates and deadlines by the duration of the service disruptions caused by these circumstances. Force majeure shall include all circumstances that make delivery or performance significantly more difficult or impossible for the contractor through no fault of its own, in particular fire, traffic blockades, raw material shortages, export and import bans, operational and transport disruptions, internal unrest or emergency situations, regardless of whether such disruptions occur at the contractor itself or at its suppliers or in public transport. In the above-mentioned cases, the client may set the contractor a reasonable grace period for the agreed delivery or service. After expiry of the reasonable grace period, the client is entitled to withdraw from the contract.
5. Claims for damages by the client against the contractor are excluded in all cases of delayed delivery, even after expiry of a grace period set by the client, unless the delay was caused by the contractor or its vicarious agents through wilful intent or gross negligence.
If the contractor or the client is unable to perform the delivery or service for which they are responsible, the general legal principles shall apply with the following proviso: If the inability to deliver is attributable to the contractor, the client shall be entitled to claim damages. However, the customer’s claim for damages shall be limited to 10% of the value of that part of the delivery or service which cannot be put into useful operation due to the impossibility. Claims for damages by the customer exceeding the aforementioned limit are excluded. This shall not apply in cases of mandatory liability due to intent or gross negligence.
V. Prices and Terms of Payment
1. DPrices are due for payment upon delivery or performance of the service and handover or dispatch of the invoice. Acceptance is not required for the invoice to become due.
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In the case of partial deliveries, ZDE may invoice the parts already delivered separately. ZDE is entitled to apply payments first to the costs, then to the interest, and finally to the principal claim.
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a) It is agreed that ZDE may charge a flat-rate reminder fee of €5.00 for each reminder, the costs of which shall be borne by the customer.
b) If the customer fails to meet their payment obligations, ZDE GmbH shall be entitled to demand advance payments or security deposits and to revoke any payment terms that have been granted.
c) The customer shall only be entitled to offset, withhold, or reduce payment, even if complaints or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. If partial payments have been agreed, the entire remaining debt shall become due for payment immediately if the customer is fourteen days in arrears with an installment or suspends payments or if insolvency proceedings are initiated against its assets.
VI. Retention of title and insolvency of the client
1. ZDE GmbH retains title to the delivered goods until all claims of ZDE GmbH arising from this contractual relationship have been satisfied. If the client is a legal entity under public law, a special fund under public law, or a merchant for whom the contract with the contractor is part of their commercial business, the retention of title shall also apply to the claims that the contractor has against the client from its other business relationships.
2. In the event of access by third parties, the customer must point out the existing ownership of ZDE GmbH and notify ZDE GmbH immediately. The costs incurred as a result shall be borne by the customer. In the event of the client’s insolvency, no third party or insolvency administrator shall have the right to continue using the products of ZDE GmbH (goods, software) without remuneration or to transfer rights to them, to enable their use, or to otherwise make or tolerate dispositions that impair the rights of ZDE GmbH.
3. In the event of breach of contract by the customer—in particular default of payment—ZDE GmbH shall be entitled to restrict the usability of the goods or software and, if necessary, to demand assignment of the customer’s claims for surrender against third parties. The repossession or seizure of the goods subject to retention of title shall not constitute withdrawal from the contract.
4. The delivery item shall remain the property of the contractor until all claims arising from the respective delivery contract have been fulfilled. If the client is a legal entity under public law, a special fund under public law, or a merchant registered in the commercial register for whom the delivery contract with the contractor is part of their commercial business, the retention of title shall also apply to the claims that the contractor has against the client from their ongoing business relations.
5. During the period of retention of title, the customer is entitled to possess and use the delivery item, provided that it fulfills its obligations under the retention of title in accordance with the following provisions of this section and is not in default of payment. If the customer defaults on payment or fails to meet its obligations under the retention of title, the contractor may demand the return of the delivery item from the customer and, after giving written notice with a reasonable period of grace, sell the delivery item by private sale at the best possible price, offsetting the proceeds of the sale against the delivery price. In the case of installment payments by a customer who is not registered as a merchant in the commercial register, this repossession shall be deemed a withdrawal: in this case, the provisions of the installment payment transaction shall apply. All costs of repossession and sale of the delivery item shall be borne by the customer.
6. As long as the retention of title exists, the client is not entitled to sell, pledge, assign by way of security, or transfer the delivery item to third parties without the express written consent of the contractor.
7. To secure all claims of the contractor in accordance with paragraph 1, the client assigns to the contractor in full its current and future claims with ancillary rights against third parties to which it is entitled in respect of the delivery item, whether based on sale or other legal grounds. The client is authorized to collect such claims until revoked by the contractor at any time. This authorization shall also expire without express revocation in the event of the client’s suspension of payments. At the request of the contractor, the client is obliged to notify the third party of the assignment of its claim to the contractor and to provide the contractor with the information and documents necessary to assert its rights. The client is not authorized to dispose of the claims assigned to the contractor in any other way.
8. The contractor undertakes to transfer to the client, at the latter’s request, the title to the delivery item reserved by the contractor and the claims assigned to the contractor as security, insofar as their value exceeds the value of the contractor’s total claims against the client by more than twenty percent.
VII. Warranty
1. If the contractor’s performance is defective or if warranted characteristics are missing, the contractor shall be obliged, at its discretion and to the exclusion of other warranty claims, to provide a replacement delivery or service or to repair the defect. Multiple repairs are permissible.
2. If the contractor decides to remedy the defect, the client must enable this. If the client refuses to cooperate, the contractor is released from liability for defects.
3. Liability for defects does not apply to natural wear and tear or damage caused by electrical influences that are not covered by the contract. Any liability for the consequences of improper modifications and repair work carried out by the customer or third parties shall be waived.
4. Any claims for damages are excluded; however, this does not apply if the contractor or its vicarious agents have acted with intent or gross negligence.
5. The warranty period for all claims due to material defects and defects of title is one year from delivery of the goods or acceptance of the service. This applies exclusively in relation to entrepreneurs within the meaning of § 14 BGB (German Civil Code).
The reduction of the warranty period does not apply:
– in the event of claims arising from injury to life, limb, or health,
– in the event of intentional or grossly negligent breach of duty by the contractor,
– insofar as the contractor has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods,
– in the event of claims under the Product Liability Act.
6. The burden of proof at the expense of the client remains unaffected by this provision.
VIII. Scope of the transfer of rights
1. Software programs and the associated documentation are intended for the customer’s own use, who receives a simple, non-transferable, and non-exclusive license. Without the prior written consent of ZDE, the customer may not make programs or documentation available to third parties. In particular, the transfer of the software as a whole or in part to third parties, whether by purchase, rental, or in any other way, is prohibited.
2. Copies may only be made for archiving purposes, as replacements, or for troubleshooting. ZDE shall not be liable for such copies or reimburse any costs incurred in connection with them. If originals bear a copyright notice, the customer must also affix this notice to copies.
IX. Liability
1. Liability for any form of breach of contract or tort is limited to 1.5 times the invoice price, unless excluded by law. Otherwise, ZDE shall only be liable without limitation for intent and gross negligence, including that of its legal representatives and executive employees.
2. ZDE shall only be liable for other negligence if an obligation is breached whose fulfillment is of particular importance for achieving the purpose of the contract.
X. Protection and copyrights
1. The customer is obliged to inform ZDE immediately in writing if they become aware of any infringement of industrial property rights or copyrights by a product supplied by ZDE. ZDE shall assist in the settlement of such claims and in defending the customer against claims by the rights holder, provided that the infringement was caused directly by a product supplied by ZDE.
2. If the customer has modified the product delivered by ZDE or integrated it into a system, or if ZDE has designed the product in such a way that it infringes protective laws based on the customer’s instructions, the customer is obligated to defend and indemnify ZDE against claims by the owner of the infringed right and to compensate ZDE for any other damages incurred.
XI. Data protection
1. Personal data of the customer will only be collected, processed, stored, or used if the data subject has given their consent or if the General Data Protection Regulation (GDPR), the Federal Data Protection Act (BDSG), or another legal provision requires or permits this.
2. In addition, ZDE may store, process, and use other data that is necessary to establish or amend a contractual relationship, including its content, store, process, and use personal data to the extent that there is a legitimate interest, e.g., for advising the customer, for advertising and market research for its own purposes, and there is no reason to assume that there is a conflicting interest or property rights of the customer or that the customer has consented to the storage and use.
3. Insofar as the transfer of personal data to companies outside the European Economic Area (so-called third countries) is considered, which do not guarantee an adequate level of data protection within the meaning of the GDPR, ZDE will only transfer personal data to such entities if the transfer serves to fulfill a contract that has been concluded by the customer with the foreign company or by ZDE in the interest of the customer with the foreign company and the foreign company has provided appropriate safeguards for the protection of the data, or if the data transfer is based on an adequacy decision by the Commission. ZDE will inform the foreign company that the transferred data may only be processed or stored for the purpose for which it was transferred.
XII. Other claims for damages
Claims for damages by the client due to breach of duty or tort are excluded, unless there is intent or gross negligence on the part of the contractor, its legal representative, or its vicarious agents.
XIII. Updates/Application-related advice and maintenance
1. The customer may only request ZDE to provide updates for the software sold if they conclude a special agreement with ZDE setting out all the details or make other special arrangements.
2. Any application-related advice or maintenance requested by the client (hardware modifications, adjustments to changed computer use, etc.) shall be provided to the best of the contractor’s knowledge based on its experience, exclusively for a fee and upon conclusion of a separate maintenance contract. However, all information and details provided by the contractor regarding the suitability and application of the delivered goods are non-binding and do not release the client from conducting their own tests and trials. The client is solely responsible for complying with legal and official regulations when using the delivered goods.
XIV. Data backups
If the contractor is commissioned to carry out work on devices, any liability for data stored on storage media provided to him or for such data to which he has access in the course of carrying out the work is excluded. The client is solely responsible for the necessary data backup. This exclusion of liability also does not apply in cases of mandatory liability for intent or gross negligence.
XV. Place of jurisdiction, applicable law, partial invalidity
1. The place of jurisdiction shall be the court responsible for the contractor’s registered office if the client is a merchant or a legal entity under public law or a special fund under public law. ZDE shall in any case also be entitled to assert its own claims before the courts of the customer’s general place of jurisdiction. Any exclusive place of jurisdiction shall remain unaffected.
2. The legal relationship between the client and the contractor shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international private law.
XVI. Other provisions
1. Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions.
2. Without the written consent of ZDE, claims arising from the contractual relationship that are directed against ZDE are not transferable and can only be asserted by the customer.