<br>General Terms and Conditions (GTC) the Center for Digital Development GmbH, Westhausen
I. Validity of these General Terms and Conditions
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 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 shall be governed exclusively by these GTC. It is irrelevant for the contractual relationship whether the customer possibly concludes another agreement, e.g. a license agreement, with ZDE regarding the software.
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 of business shall also apply if counter-confirmations are made by the customer 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 due to the reference to this storage location on our letterhead.
Deviations from these General Terms and Conditions require our written confirmation of the contractor in order to be legally effective.
II. Property rights and copyrights of the Contractor to documents and data
The Contractor reserves the right of ownership and copyright to drafts, drawings, plans, EDP programs, lists, documentation, sections and other documents and data which it supplies 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 Contractor’s prior consent. Documents and data provided in connection with the Contractor’s offers must be returned to the Contractor immediately if the order is not placed.
Insofar as programs (software from software development or software customization) 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 him nor make it available to another party for use.
III. Offer and conclusion of contract
Offers made by ZDE – including in brochures, advertisements, etc. – are subject to change and non-binding. We reserve the right to make changes in the course of technical progress. The customer shall be bound for four weeks to an order not yet accepted by ZDE.
Subsidiary agreements, amendments and supplements shall only be effective with written confirmation from ZDE.
- Delivery and performance; default
Delivery dates and deadlines must be agreed in writing to be effective and are always non-binding, unless expressly agreed otherwise. Partial deliveries are permissible.
Unless the delivery of standard software is involved, ZDE may make the delivery of the software dependent on the customer concluding a separate license agreement with ZDE. The customer shall be expressly informed of this prior to the conclusion of the purchase agreement, if applicable.
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 upon complete clarification of all execution details. Compliance with the delivery/performance dates and deadlines shall be subject to the timely receipt of all documents to be supplied by the Client, necessary approvals, releases and the timely clarification and approval of technical details. Proof of timely receipt of all necessary cooperation documents is the responsibility of the client.
Force majeure, riots, strikes, lockouts and significant operational disruptions at the Contractor and its suppliers through no fault of its own shall change the agreed delivery/service dates and deadlines by the duration of the disruptions caused by these circumstances. Force majeure shall be deemed to include all circumstances which, through no fault of the Contractor, make delivery or performance significantly more difficult or impossible, in particular fire, traffic blocks, shortages of raw materials, export and import bans, operational and transport disruptions, civil unrest or emergency situations, irrespective of whether such disruptions occur at the Contractor’s own premises or those of its suppliers or in public transport. In the aforementioned 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.
Claims for damages by the Client against the Contractor shall be excluded in all cases of delayed delivery, even after expiry of any grace period set by the Client; however, this shall not apply if the delay was caused by the Contractor or its vicarious agents intentionally or through gross negligence.
If the delivery or service incumbent upon the Contractor or the Client becomes impossible, the general legal principles shall apply with the following proviso: If the impossibility of delivery is due to the fault of the Contractor, the Client shall be entitled to demand compensation. 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 to the intended use due to the impossibility. Claims for damages on the part of the customer that exceed the aforementioned limit are excluded. This shall not apply if liability is mandatory in cases of intent or gross negligence.
2. prices and terms of payment
The prices are due for payment upon delivery or performance of the service and handover or sending of the invoice. Acceptance is not required for the due date.
In the event of partial deliveries, ZDE may invoice the parts already delivered separately. ZDE is entitled to offset payments first against the costs, then against the interest and finally against the principal claim.
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.
If the customer fails to meet its payment obligations, ZDE GmbH shall be entitled to demand advance payments or security deposits and to revoke any payment terms granted.
The customer shall only be entitled to offset, withhold or reduce payment, even if notices of defects 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 applied for against his assets.
3. retention of title and insolvency of the client
ZDE GmbH shall retain title to the delivered goods until all claims of ZDE GmbH arising from this contractual relationship have been satisfied. If the customer 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 the operation of its commercial business, the retention of title shall also apply to the claims that the contractor has against the customer from its other business relationships.
In the event of access by third parties, the customer must draw attention to the existing ownership of ZDE GmbH and notify ZDE GmbH immediately. The customer shall bear the resulting costs. In the event of the customer’s insolvency, a third party or the insolvency administrator shall have no right to continue to use the products of ZDE GmbH (goods, software) without payment or to transfer rights to them, to enable their use or otherwise to make or tolerate dispositions that cause an impairment of the rights of ZDE GmbH.
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 restitution against third parties. Taking back or seizing the goods subject to retention of title shall not constitute a withdrawal from the contract.
The delivery item shall remain the property of the Contractor until the respective delivery contract has been fulfilled. If the Client is a legal entity under public law, a special fund under public law or a merchant entered in the commercial register for whom the delivery contract with the Contractor is part of the operation of its commercial business, the retention of title shall also apply to the claims that the Contractor has against the Client from its ongoing business relationships.
For the duration of the retention of title, the client is entitled to possess and use the delivery item. As long as he fulfills his obligations arising from the retention of title in accordance with the following provisions of this section and as long as he is not in default of payment. If the Client is in default of payment or does not fulfill its obligations arising from the retention of title, the Contractor may demand the return of the delivery item from the Client and, after giving written notice with a reasonable period of notice, sell the delivery item by private sale at the best possible price, offsetting the proceeds of the sale against the delivery price. This repossession shall be deemed to be a withdrawal in the case of installment transactions of a client who is not registered as a merchant in the commercial register: in this case, the provisions of the installment transaction shall apply. All costs of taking back and realizing the delivery item shall be borne by the client.
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.
To secure all of the Contractor’s claims in accordance with paragraph 1, the Client assigns to the Contractor in full its present and future claims, including ancillary rights, to which it is entitled against third parties in respect of the delivery item, whether they are based on sale or other legal grounds. The Client is authorized to collect such claims until revocation by the Contractor, which is permissible at any time. This authorization shall also expire without express revocation if the Client ceases to make payments. At the Contractor’s request, the Client shall be obliged to inform the third party of the assignment of its claim to the Contractor and to provide the Contractor with the information and documents required to assert its rights. The Customer is not authorized to dispose of the claims assigned to the Contractor in any other way.
The Contractor undertakes to transfer to the Client, at the Client’s request, the title to the delivery item to which it retains title and the claims assigned to it as security, insofar as their value exceeds the value of the claims to which the Contractor is entitled against the Client by more than twenty percent in total.
VII. Warranty
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 rectify the defect. Multiple rectifications are permissible. If the Contractor decides in favor of rectification, the Client must make this possible. If he refuses to cooperate, the Contractor shall be released from liability for defects.
The liability for defects does not apply to natural wear and tear or impairments caused by electrical influences that are not assumed under the contract.
Liability for any consequences arising from improper modifications and repair work carried out by the client or third parties is excluded.
Any claims for damages shall be excluded; however, this shall not apply if the Contractor or its vicarious agents have acted with intent or gross negligence.
VIII. Scope of the transfer of rights
Software programs and the associated documentation are intended for the customer’s own use, who receives a simple, non-transferable and non-exclusive license. The customer may not make programs or documentation available to third parties without the prior written consent of ZDE. In particular, the transfer of the software in whole or in part to third parties, whether by way of purchase, rental or otherwise, is prohibited.
Copies may only be made for archiving purposes, as a replacement or for troubleshooting. Liability or reimbursement of costs by ZDE for such copies is excluded. If originals bear a note indicating copyright protection, the customer must also affix this to copies.
- Liability
Unless already excluded by law, liability for any form of default or tort shall be limited to 1,5 times the invoice price. Otherwise, ZDE shall only be liable without limitation for intent and gross negligence, including that of its legal representatives and executive employees.
ZDE shall only be liable for other negligence if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract.
- Property rights and copyrights
The customer is obliged to inform ZDE immediately in writing if it becomes aware of an infringement of industrial property rights or copyrights by a product supplied by ZDE. ZDE shall support the settlement of such claims and the customer’s defense against claims by the holder of the rights insofar as the infringement was caused directly by a product supplied by ZDE.
If the customer has modified the product supplied by ZDE or integrated it into a system or if ZDE has designed the product on the basis of the customer’s instructions in such a way that this results in infringements of protective laws, the customer shall be obliged to defend and indemnify ZDE against claims by the owner of the infringed right and to compensate ZDE for any other damages incurred.
- Data protection
The customer’s personal data will only be collected, processed, stored or used if the data subject has consented or if the General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG) or another legal provision requires or permits this.
In addition, ZDE may store, process and use other data required to establish or amend a contractual relationship, including its content, insofar as there is a legitimate interest, e.g. for advising the customer, for advertising and for market research for its own purposes, and there is no reason to assume that the customer has a conflicting interest or property rights or has consented to the storage and use.
Insofar as a 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 the fulfillment of a contract which was 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 suitable guarantees for the protection of the data, or if the data transfer is based on an adequacy decision of 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, his legal representative or his vicarious agents.
XIII. Updates/Application-related advice and maintenance
The customer may only require ZDE to supply updates to the software sold if it concludes a special agreement with ZDE from which all details are derived or makes another special arrangement.
Any technical application advice or maintenance requested by the Client (hardware modifications, adaptations to modified computer use, etc.) shall be provided to the best of the Contractor’s knowledge on the basis of its experience, exclusively against payment and upon conclusion of a separate maintenance contract. However, all details and information provided by the Contractor regarding the suitability and use of the goods supplied are non-binding and do not release the Client from the obligation to carry out its own tests and trials. The Customer shall be solely responsible for compliance with statutory and official regulations when using the goods supplied.
XIV. Data backups
If the Contractor is commissioned to work on equipment, any liability for data stored on storage media provided to it or data to which it 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 shall also not apply in cases of mandatory liability based on intent or gross negligence.
- Place of jurisdiction, applicable law, partial invalidity
The place of jurisdiction shall be the court responsible for the contractor’s registered office if the customer is a merchant or a legal entity under public law or a special fund under public law. In any case, ZDE shall 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.
The legal relationship between the Client and the Contractor shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of international private law.
XVI. Other provisions
Any invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions.
Without the written consent of ZDE, claims arising from the contractual relationship that are directed against ZDE are not assignable and can only be asserted by the customer.