General terms and conditions
General Terms and Conditions of CONTENTSERV AG, CONTENTSERV GmbH, CONTENTSERV Europe GmbH, CS Vision GmbH, CONTENTSERV Benelux NV and ContentSphere Europe B.V. Netherlands.
I Applicability of the contract conditions
(01) In all contractual relationships, in which CONTENTSERV AG, CONTENTSERV GmbH, CONTENTSERV Europe GmbH, CS Vision GmbH, CONTENTSERV Benelux NV and ContentSphere Europe B.V. Netherlands (hereinafter referred to as “CONTENTSERV”) provides services to another company or public law body corporate or special fund (“Customer”), the present contract terms and conditions shall apply exclusively.
(02) Services in accordance with clause 1 include among others:
- Delivery or, as the case may be, (further) development of software products and software modules by CONTENTSERV and/or other software or support in this context
- Project coordination and business consulting
- Technical advice and support either locally or by any means of telecommunication
- Services under maintenance contracts (update/upgrade contracts, support contracts)
- Implementation, customization, and modification of software products/modules by CONTENTSERV and other software or support in this context
- Installation of the software products/modules by CONTENTSERV and other software and programming of the required interfaces or support in this context
- Training of Customer staff on the Customer’s premises and/or the holding of workshops
- Provision of other rights and services.
(03) No conflicting and/or supplementary conditions, particularly the terms and conditions of the Customer shall become subject matter of the contract, even if CONTENTSERV performs a contract without expressly rejecting such conditions.
II General Terms
§ 1 PRE-CONTRACTUAL OBLIGATIONS; CONTRACT CONCLUSION; WRITTEN FORM
(01) All software and other works and goods provided by CONTENTSERV before the conclusion of contract (for example, proposals, test programs, concepts) are the intellectual property of CONTENTSERV. They must not be copied or made accessible to third parties. If no contract is concluded, they must be returned or destroyed and must not be used. In all other respects the provisions of the present General Terms and Conditions, particularly the exclusions and limitations of liability in II, Section 11 (Liability), apply to precontractual liability.
(02) CONTENTSERV can accept offers made by Customers within 30 days. Offers made by CONTENTSERV are non-binding unless otherwise agreed in writing. In the case of dispute, CONTENTSERV’s offer or order confirmation determine the subject matter of the contract.
(03) The conclusion of contract and any amendments or additions to it are only effective if they are in written form. There are no verbal subsidiary agreements.
(04) All termination notices, reminder notices and/or notices setting time limits from the Customer are only effective if they are in written form. Email and other electronic communication is not sufficient to fulfill the written form requirement.
(05) Where written form is required in all sections of the present General Terms and Conditions, this requirement can be met by means of facsimile transmission or exchange of letters. The provisions of section 127, paragraph 2 of the German Civil Code (§127 Abs. 2 BGB), however, do not apply in any other respect.
(06) Promises of any kind that obligate CONTENTSERV to assume greater liability than stipulated in these General Terms and Conditions must be specifically confirmed in writing by CONTENTSERV. Guarantees must be confirmed expressly in writing by CONTENTSERV’s management.
§ 2 CONTRACTUAL OBLIGATIONS
(01) Cooperation between the contracting parties requires a high level of trust, synergy, and willingness to reach a mutual agreement.
(02) Whether the deadlines set by the Customer are provided by law or by contract, the time period involved must be reasonable and include at least 10 working days, except in the case of rush jobs.
(03) If failure to comply with any fixed time limit entitles the Customer to be released from the contract (i.e. by rescission, termination, or claim for damages in lieu of performance) or to a price reduction for breach, the Customer must notify CONTENTSERV in writing of its intention to take this action as a consequence of the failure to comply and set a deadline. After expiry of the time limit set according to sentence 1, CONTENTSERV can ask the Customer to exercise its rights resulting from the expiry of the time limit within two weeks of receipt of the request in writing.
(04) The right of rescission applies strictly and only to the part of the contract that has not been fulfilled. To the extent to which part orders or services have already been performed for the Customer and cannot be used, the Customer is also entitled to rescission with respect to the corresponding part of the contract.
(05) Works and services that have already been performed will be billed, where applicable, in accordance with these General Terms and Conditions, in particular, Part II, Section 6 (Payment, prices, terms of payment). Any claims for damages are governed by Part II, Section 11 (Liability).
§ 3 PROVISION OF WORKS AND SERVICES
(01) The Customer must describe the requirements for the contract works and services. Based on the description provided, CONTENTSERV and the Customer must plan the provision of contract works and services together. CONTENTSERV can, if necessary, submit a written concept for this purpose. Further details will be set out or referenced in the individual contract.
(02) Even in the case where contract works and services are provided on the Customer’s premises, CONTENTSERV has the sole managerial authority over its own employees. CONTENTSERV’s employees must not be integrated into the Customer’s business operations. The Customer can issue instructions to the CONTENTSERV project manager only and not directly to individual CONTENTSERV employees.
(03) The Customer bears the risk of ordered works and services. The Customer determines whether they meet its wishes and needs. It in doubt, the Customer should obtain advice from CONTENTSERV employees or third-party experts in good time.
(04) CONTENTSERV may make memos concerning the specification or amendment of contractual provisions, particularlythe subject matter of the contract. The Customer must check the memo at once and inform CONTENTSERV of any potentially necessary amendments.
(05) CONTENTSERV decides which employees it deploys and reserves the right to replace any employee at any time. CONTENTSERV may also deploy freelancers or other companies to perform its duties. CONTENTSERV is liable for faults committed by subcontractors to the same extent as for its own faults.
(06) The Customer is accountable for third parties to the same extent as for subcontractors who are deployed by and are working with the consent of the Customer in CONTENTSERV’s area of activity. CONTENTSERV cannot be held accountable to the Customer if CONTENTSERV cannot completely, partly, or punctually fulfil its obligations towards the Customer due to the behaviour of one of the aforementioned third parties.
(07) If contract work or services cannot be provided for reasons for which the customer is at fault, the agreed working time will be billed nonetheless. That is, unless the Customer can prove that the relevant CONTENTSERV resources could have been deployed elsewhere.
(08) Should CONTENTSERV provide works and services with the Customer’s consent that are beyond the scope of the contract, the terms and conditions as agreed in the individual contract are also deemed applicable to those works and services.
(09) All CONTENTSERV’s obligations to perform works and services are subject to the provision that they do not contravene any embargo regulations effective at the time of performance.
§ 4 COLLABORATION, CUSTOMER’S DUTY TO COLLABORATE
(01) The parties work together in a trusting manner and inform each other immediately and mutually in the case of deviations from the agreed procedure or doubts as to the correctness of the other party’s approach. If the Customer realizes that its own specifications and requirements are incorrect, incomplete, unclear or impossible to realize, the Customer must inform CONTENTSERV immediately thereof and of the foreseeable consequences.
(02) The contract parties shall nominate contact persons and their substitutes who shall manage the execution of the contractual relationship responsibly and expertly for the named contract party. The nomination of the Customer’s contact person should be provided in writing to CONTENTSERV, in addition to an address and email address where it is certain that the contact person can always be reached. The contact person must be in the position to make the necessary decisions for the Customer or to ensure that they are made without delay. The contact person shall make sure that effective cooperation with CONTENTSERV’s contact person is maintained. The Customer’s employees whose work is required must be released from other tasks to a reasonable extent.
(03) The parties must notify each other immediately in writing of any changes in the nominated persons. Until reception of such a message, the originally nominated contact persons and/or substitutes are still deemed authorized within the scope of their actual authority to submit and accept statements.
(04) The contact persons communicate with each other at regular intervals during the execution of the contract in order to discuss progress and/or obstacles. They shall manage and intervene in the performance of the contract if necessary.
(05) The Customer assists CONTENTSERV in the performance of the contract works and services. This includes, in particular, timely access to information, data material, as well as to hardware and software. If necessary, access shall be provided according to CONTENTSERV’s instructions insofar as the Customer’s collaboration is required. It is the responsibility of the Customer to secure proper operation of the necessary working environment of the software by entering into maintenance contracts with third parties, if necessary. The Customer has to pay particular attention to CONTENTSERV’s requirements.
(06) The Customer shall provide all reasonable collaboration required by CONTENTSERV in connection with the performance of the contract free of charge, including, for example, human resources, workspace, IT systems, data, and telecommunications facilities. The Customer must grant CONTENTSERV direct and remote access to the software systems. The Customer must answer questions and inspect the results.
(07) Before commencing live operation with any provided work, the Customer shall test it thoroughly for defects and for suitability in the concrete situation. This also applies to works and services provided to remedy a defect or under the maintenance service
(08) The Customer must take appropriate precautions against the possibility that the works may have defects. Such precautions include, for example, data backups, error diagnosis, and regular monitoring of results. Except where otherwise expressly indicated in writing in individual cases, CONTENTSERV employees are always entitled to assume that all data with which they come into contact are backed up.
(09) The Customer undertakes to provide all collaborative goods, works, and services needed for the performance of the contract. If necessary, any other provisions shall be specified in the individual contract.
(10) The Customer carries out collaborative activities at its own expense. The Customer bears all consequences and additional costs resulting from the breach of its duties under this contract.
(11) If the Customer has undertaken to provide CONTENTSERV with the material needed for the performance of the contract (i.e. images, musical and text material, etc.), the Customer must provide these materials to CONTENTSERV without delay. These materials should be in a conventional, directly applicable, and preferably digital format. If the material provided by the Customer must be converted to another format, the Customer must bear the cost. The Customer must ensure that CONTENTSERV acquires the rights required for the use of these materials.
(12) The customer keeps CONTENTSERV indemnified against claims made by third parties against CONTENTSERV on account of infringement of third-party intellectual property rights to material that the customer has provided for use, no matter whether the claim is based on patents, trademark rights, copyright or other industrial property rights. The above-mentioned indemnity against liability does not apply provided that the reason for the tangible infringement of intellectual property rights is that CONTENTSERV itself is responsible for the infringement of intellectual property rights.
(13) If a claim is made against CONTENTSERV on account of infringement of intellectual property rights in accordance with the first sentence of paragraph 12 of this section, CONTENTSERV must inform the customer immediately and provide all documents required by the customer, such as the complaint and judicial decision. In turn, the customer will support CONTENTSERV to the best of its ability by providing any existing information required for legal defense.
(14) CONTENTSERV has the right to authorize the customer in writing, to claim the intellectual property rights to the contract products by means of the measures required for legal defense against third parties no matter whether these are out of court or in court, to decide and instruct CONTENTSERV as required. Provided that CONTENTSERV submits a statement to this effect, the customer will reimburse CONTENTSERV in advance with the costs required for an appropriate legal defense; CONTENTSERV is then obligated to provide the customer immediately with all existing information which could be useful for the legal defense and to provide any documents required for legal defense, as well as furnish information.
§ 5 DATES AND TIMES, DELAYS IN DELIVERY
(01) Dates and times are not binding except where the Customer and CONTENTSERV have expressly agreed in writing that they are binding. Dates and times, which if not met, would delay a contract party pursuant to section 286, paragraph 2 of the German Civil Code without a notice to perform (§ 286 Absatz 2 BGB) must always be expressly stipulated in writing and designated as binding. CONTENTSERV’s duty to provide a rough concept of the project timeframe (beginning and end) begins at the time of signing of the contract. The duty to provide a precise plan (fine specification) begins at the time of acceptance of the concept by the Customer.
(02) Only the project manager is permitted to accept dates and times for the provision of service on behalf of CONTENTSERV.
(03) If CONTENTSERV has to wait for assistance or information from the Customer (i.e. tardy performance of collaborative works and services, delays arising from the third party accountable to the Customer, etc.) as a result of a force majeure (i.e. strike, lockout, official intervention, general breakdown in telecommunications, etc.), or other circumstances where CONTENTSERV is not at fault if the performance of contract is hindered, the deadlines for the delivery of goods and the provision of works and services shall be extended by a period equal to the duration of the hindrance, as well as by a reasonable start-up period after the hindrance ends. CONTENTSERV shall advise the Customer of the delay as a result of a force majeure.
(04) Workdays are weekdays from Monday to Friday (8:30 am to 5:30 pm CET). Workdays do not include statutory public holidays in the German state of Bavaria or the 24th and 31st of December.
(05) The contract parties shall stipulate the dates and times preferably in writing. Dates and times, which if not met, would delay a contract party pursuant to section 286, paragraph 2 of the German Civil Code without a notice to perform (§ 286 Absatz 2 BGB) must always be expressly stipulated in writing and designated as binding
(06) If CONTENTSERV is in delay and the Customer suffers damages as a result of the delay, the Customer is entitled to claim compensation. The compensation for default is 0.5% per completed month of the delay to a maximum, however, of 5% altogether of the value of the delayed part of the delivery of goods and/or performance of works and services. After unsuccessful expiry of the reasonable extension of time set by the Customer, the Customer may withdraw from the contract. The Customer has the same right to withdraw if it is impossible for CONTENTSERV to deliver software products and/or services based on grounds that are supported by CONTENTSERV. The right to withdraw basically applies only to the parts of the contract that have not been fulfilled. In the case of parts of the contract that have already been delivered, but are incomplete or cannot be used by the Customer, the Customer is also entitled to withdraw from these particular parts.
(07) More extensive rights arising from a delay in delivery of goods or performance of works and services, in particular, compensation for damages are excluded, in so far as this is legally permitted.
§ 6 PAYMENT, PRICE, TERMS OF PAYMENT, RETENTION OF RIGHTS
(01) The prices of software, training courses, workshops, update and upgrade services, as well as of support services shall be determined by reference to the current CONTENTSERV price list. The prices of software products are understood as a once-only payment.
(02) All prices are subject to applicable statutory value-added tax (VAT) except where the transaction is exempt from VAT. CONTENTSERV is entitled to submit invoices for partial performance of the contract works and services. Payment is due 14 days after the invoice has been issued. No cash discount shall be granted. CONTENTSERV charges interest at the statutory rate of penal interest beginning 16 days after the due date for payment.
(03) Payment of software is due immediately at the time of signing of the contract. The billing of works and services shall be calculated on the basis of a list of activities contained in the invoice. These shall be deemed accepted unless the Customer rejects these in writing within three weeks on receipt of invoice.
(04) Training courses and workshops are either charged as a lump sum per day or per participant per day. In the case of the charge of a lump sum or a daily fee, the maximum number of participants is 8. The course fees shall be billed to the Customer after completion of the course or workshop.
(05) Billing for time spent travelling, travel and accommodation expenses are resource-related and based on travel from the CONTENTSERV employee’s normal place of work and the customer’s site, and between the Customer’s different sites.
(06) The Customer is entitled to offset claims only against claims that are uncontested or ordered by a court of law. The Customer cannot assign its claims to a third party regardless of the provisions of the German Commercial Code, section 354a (§ 354a HGB).
(07) CONTENTSERV retains the absolute title and rights in the contract subject matter until full satisfaction of its claims under the contract. The Customer must notify CONTENTSERV in writing immediately if any third party gains access to the paraphernalia to which CONTENTSERV retains title or rights. The Customer must also inform the third party of CONTENTSERV’s rights.
§ 7 CHANGE AND/OR FEATURE REQUEST PROCEDURE
(01) Both contract parties may propose changes in writing at any time during the project. These may include, in particular, changes in the agreed features, methods, and dates. If the Customer wants to change the scope of the works and services (change request) to be provided by CONTENTSERV as stipulated in the contract, the Customer must make its request known to CONTENTSERV in writing. The following provisions also apply if the Customer wants to extend the features (feature request). The request for the extension of features must not necessarily be in writing. If the change requests and feature requests can be examined quickly and most probably implemented within 8 working hours, the procedure described in clauses 2 to 5 shall not be required. These requests however are to remain the exception. If requests of this kind are made repeatedly, the normal procedure according to clauses 2 to 5 must be adhered to.
(02) CONTENTSERV examines what effects the desired change shall have, in particular, on remuneration, the time involved, and on dates and times. If based on this examination, CONTENTSERV comes to the conclusion that the requested works and services cannot be performed or can only be performed with a delay CONTENTSERV shall inform the Customer accordingly. In the case of delay, the affected works and services shall be postponed initially to an unknown date. If the Customer consents to the postponement, CONTENTSERV shall carry out the examination of the change request. The Customer is entitled to withdraw its change request at any time; the change request procedure shall thus be concluded.
(03) After examination of the change request, CONTENTSERV shall explain to the Customer what impact the change request shall have on the agreed contract. The examination shall include either a detailed proposal for the implementation of the change request or information as to why the request change cannot be implemented. Provided that no agreement regarding the change exists, work shall be continued in accordance with the existing contract. The Customer can request instead that the work be completely or partially suspended or be permanently terminated in accordance with the conditions in the preceding sections regarding contractual obligations.
(04) If the change is to proceed, the contract parties shall agree on the content of a proposal for the implementation of the change request without delay. The results of a successful agreement shall be added as an ancillary agreement to the text of the contract on which the change is based.
(05) If no agreement is met, or if the change request procedure is ended for another reason, the original scope of works and services shall remain. The same shall apply should the Customer not agree to a postponement of works and services in order to carry out the examination pursuant to clause 2.
(06) The dates and times that are affected by the change request procedure shall be postponed to allow for the time required for the examination and agreement on the change request. If necessary, the time required for the change request to be implemented, in addition to an adequate initial deadline shall also be accounted for. CONTENTSERV shall inform the Customer of the new dates and times.
(07) The Customer must bear the costs incurred by the change request. These include, in particular, the examination of the change request, the preparation of a change proposal and possible downtimes. If the parties have made an agreement on daily rates, these costs shall be charged accordingly. Otherwise, they shall be charged in accordance with the usual mode of calculation by CONTENTSERV.
(08) In the case of a suspension pursuant to clause 3, remuneration at the agreed rate is due as of the first workday per day and per CONTENTSERV employee involved in the project, whose work is suspended. If a rate has not been agreed on, the daily rate in accordance with the valid price list shall be due. In the case of final termination, the legal consequences are as provided in section 649 of the German Civil Code (§ 649 BGB).
§ 8 ACCEPTANCE
.(01) CONTENTSERV may require a written statement of acceptance from the Customer for all contract works that are subject to acceptance. The Customer must accept works and services without delay subject to the provisions of this section. An acceptance certificate may be created for this purpose. It must be signed by both contract parties.
(02) If the subject matter of a works contract comprises several individual works which can be used by the Customer separately, each of these individual works shall be accepted separately.
(03) If subsets of the works are defined in the works contract, CONTENTSERV may present subsets for acceptance. In the case of later acceptance, only the functioning of the new subset and the correct interaction of the new subset with the subsets which were accepted earlier shall be examined.
(04) If the contract comprises the creation of a concept, particularly, for the development, modification, and/or enhancement of CONTENTSERV software components, CONTENTSERV may require separate acceptance of the concept.
(05) The Customer has 10 workdays to examine the performance of works. After examination, the Customer’s contact person shall either declare acceptance to CONTENTSERV in writing or notify CONTENTSERV in writing of all the defects found. This includes a precise description of the defects and information on error systematics. If the Customer does not submit a written declaration within the set term or uses the works without notifying CONTENTSERV of the defects in writing, the works shall be regarded as accepted. Insubstantial defects are not grounds for withholding acceptance. The productive application or the productive operation of any work and/or part of a work by the Customer shall be deemed in all cases as the acceptance of the respective works used in live operation.
(06) In accordance with the previous clause (clause 5) CONTENTSERV must remedy the defects of which it has been notified within a reasonable period of time depending on the severity of the defect. The Customer must inspect the works within 5 workdays after notification that the defect has been eliminated. All other provisions in clause 5 apply accordingly.
(07) Clauses 1 to 6 apply accordingly to all other works and services performed by CONTENTSERV, for which the acceptance procedure has been agreed.
§ 9 RIGHTS
All rights to the resulting work, in particular, copyright law, intellectual property rights and related rights are reserved exclusively to CONTENTSERV in relation to the Customer. This also applies insofar as the resulting work was developed from the Customer’s guidelines and/or with the Customer’s collaboration. If no other agreement has been made in writing, the Customer has a simple right of use of the resulting work. That is, provided that the Customer has paid the due instalments in full up to and including the period of acceptance. The Customer then has the right to use the work for processing its own internal business transactions or those of other associated companies (i.e. parent company, members of a group of companies), as defined in section 15 of the German Companies Act (§ 15 AktG). The Customer may make backup copies of the product. Each backup must be identified as such and bear the copyright of the original data carrier.
§ 10 DEFECTS AS TO QUALITY; DEFECTS IN TITLE; OTHER FAULTS
(01) For any contract work or service that is subject to statutory liability for quality and title defects, CONTENTSERV warrants in accordance with clauses 1 to 7 of this section that the work and/or service fulfils the specifically agreed properties and condition. CONTENTSERV also warrants that no third-party rights are infringed through the grant of rights to the Customer (cp. Part II, Section 9). Where no properties and condition have been agreed on, CONTENTSERV warrants that the work or service is suitable for the use envisaged in the contract, that is, for ordinary use; it has the usual qualities and those that a Customer can expect from works and services of its kind.
(02) The customer must notify CONTENTSERV in writing without delay if it identifies defects. A precise description of the problem and information that is important in order to eliminate the defect must be included. After CONTENTSERV has delivered the contract works the Customer may inspect them without delay as is reasonably possible in the course of ordinary business. If a defect is apparent, the Customer must inform CONTENTSERV thereof without delay. If the Customer does not notify CONTENTSERV of the defect, the contract works shall be deemed to be approved unless the defect was not apparent at the time of inspection. If a defect of this kind becomes apparent subsequently, the Customer must notify CONTENTSERV immediately after discovering it. Otherwise the contract works shall be deemed approved also in consideration of this defect. In order to preserve the Customer’s rights, it is sufficient when the Customer sends the complaint on time. If CONTENTSERV intentionally conceals the defect by remaining silent, CONTENTSERV cannot refer to sentences 2 to 5. Only the contact person (cf. Part II, Section 4, clause 2) is authorized to reprimand in the aforementioned context.
(03) In the case of detected defects as to quality, CONTENTSERV shall ensure compliance by remedying defects either by providing the Customer with works that are free of defects or, depending on the method chosen, by eliminating the defects. CONTENTSERV may also eliminate a defect by showing the Customer a reasonable way to avoid the effect of the defect (= workaround). In the case of proven defects of title, CONTENTSERV shall assume liability by remedying the defects. CONTENTSERV shall either procure for the Customer the legally incontestable right under licence to use the delivered works or may provide the Customer with equivalent replacement or modified works.
The Customer must accept new software if it functions in accordance with the contract and if it is not unreasonable to expect the Customer to take over the replacement software. The urgency of the remedying of defects depends on how seriously business operations are impeded. The present provisions, especially Part II, Section 4 also apply accordingly.
(04) If CONTENTSERV ultimately fails to remedy the defect within the reasonable time limit set by the Customer, the Customer can reduce payment, withdraw from the contract or terminate any continuing obligation. The provisions of Part II, Section 2 (Contractual obligations) of these General Terms and Conditions must be complied with if a new time limit is set. In accordance with Part II, Section 11 (Liability), CONTENTSERV shall pay compensation for loss or wasted anticipatory expenditure caused by a defect. Other rights on account of defects as to quality and/or title are excluded.
(05) The claims in accordance with clauses 1, 3 and 4 come under the statute of limitations in a year as from the beginning of the statute of limitation with respect to the respective defects as to quality and/or title. This also applies to claims arising from withdrawal and/or reduction in payment in accordance with clause 4, sentence 1.
The shortening of the limitation period does not apply in the case of intent or gross negligence on the part of CONTENTSERV, fraudulent concealment of the defect, personal injury or defects of title within the meaning of section 438(1)(1a) of the German Civil Code (§ 438, Abs. 1, Nr. 1a BGB).
(06) In the case of defects in works or services to eliminate or avoid a defect, or defects in new software delivered during supplementary performance, the limitation period likewise expires at the point in time indicated in clause 5. The limitation period shall be suspended, however, in agreement with the Customer until CONTENTSERV can notify the Customer of the results of its examination, or until it declares supplementary performance terminated or refuses to provide supplementary performance. The period of limitation goes into effect three months after the end of the suspension at the earliest.
(07) If CONTENTSERV provides works and/or services during defect identification or elimination without being under obligation to do so (particularly if a support contract has not been concluded in accordance with Part VI), CONTENTSERV is entitled to bill the extra work as provided in Part II, Section 6 (Payment, price, terms of payment, retention of rights). This applies in particular to any reported defect as to quality that is not reproducible or for which CONTENTSERV cannot be held accountable. CONTENTSERV is entitled in particular to remuneration for the additional time and expenses put into remedying the defect, if the Customer does not properly fulfil its obligation to collaborate. This also applies if the Customer does not operate the software and/or contract works appropriately or has not made use of the services that CONTENTSERV recommends.
(08) If a third party claims that the exercise of the license granted under the contract infringes its rights, the Customer must inform CONTENTSERV fully in writing without delay. If the Customer ceases to use the works in order to mitigateloss or for other just reasons, the Customer must notify the third party that the cessation of use does not imply any recognition of the claimed infringement. The Customer authorizes CONTENTSERV on its request to assume sole conduct of the dispute with the third party both in and out of court. If CONTENTSERV exercises this authority, which is at its discretion, the Customer must not recognize the claims of the third party without CONTENTSERV’s consent. CONTENTSERV undertakes to avert the claims at its own expense. CONTENTSERV shall indemnify the Customer from all costs and damages resulting entirely from CONTENTSERV’s defence against the claim. The provisions of this section apply independent of the coming into effect of the limitation period pursuant to clause 5. Furthermore, CONTENTSERV can change or replace the affected works at its own discretion, so that no third-party rights are infringed. The agreements stipulated in the contract, however, shall still be fully observed or the Customer shall obtain the right to continue use of the work through an agreement with the holder of the right.
If CONTENTSERV does not perform or does not properly perform its works and/or services beyond the ambit of liability for sound title and for defects, or if CONTENTSERV commits any other breach of duty, the Customer must always notify a defect to CONTENTSERV in writing. The Customer must also grant CONTENTSERV an extension of term during which CONTENTSERV has the opportunity to fulfill it works and or services properly or to find another remedy. The provisions of Part II, Section 2 apply (Contractual obligations). In the case of compensation for loss or wasted anticipatory expenditure, the limitations set in Part II, Section 11 (Liability) shall apply.
§ 11 LIABILITY
(01) In all cases of contractual or non-contractual liability, CONTENTSERV is only liable for compensation for loss or wasted anticipatory expenditure as follows: a) In the case of intent, claims pursuant to the product liability law (ProdHaftG), bodily harm, damage to health and/or mortal injury, CONTENTSERV is liable in accordance with the statutory provisions. b) In the case of gross negligence or if a particular condition is not fulfilled, for which CONTENTSERV has given a guarantee, CONTENTSERV’s liability is restricted to the compensation of the typically foreseeable loss, which would have been prevented if the guaranteed condition had been fulfilled. c) In the case of slight negligence (i.e. remedied consequential damages), CONTENTSERV is only liable if a major contractual obligation has been breached. In this case liability is restricted to the compensation of the typically foreseeable loss. Liability is restricted to a sum equal to the relevant individual contract in question for each case of loss. d) If CONTENTSERV cannot fulfill the obligation or is delayed to an extent that is unacceptable to the Customer, or if CONTENTSERV is liable for reasons other than those listed in this clause, liability is limited to a payment claim in the amount of 5% of all claims arising from the contract. In total, however, a maximum of € 50,000 can be claimed independent of the specific cause, the degree of fault or the basis of the claim.
(02) Contributory negligence on the part of the Customer (i.e. insufficient backup pursuant to Section 4 “Customer’s duty to collaborate”) shall be ascribed to the Customer.
(03) The limitation period of one year applies to all claims against CONTENTSERV for compensation for loss or wasted anticipatory expenditure in the case of contractual or non-contractual liability. This does not apply in the case of liability resulting from gross negligence, personal injury, or pursuant to the product liability law (ProdHaftG). The limitation period in line 1 begins at the point in time specified in section 199 (1) of the German Civil Code (§ 199 Abs. 1 BGB). It takes effect on expiry of five years as of the origin of the claim. The period of limitation for claims resulting from defects of quality or legal imperfection in title remains unaffected by the provisions of this section (section 10, clauses 5 and 6).
(04) In the case of insured risks, CONTENTSERV is liable for the amount of all payments made by the insurance, even if the restrictions stipulated in this section are exceeded.
(05) Compensation claims become statute-barred one year after expiry of the year in which the Customer became aware or was negligently ignorant of the origin of the claims. This does not apply to liability in the case of intent.
(06) The liability of the Manufacturer for compensation for damages will be excluded irrespective of the legal basis, if damage was caused by third-party software. This exclusion of liability, however, does not apply to personal injury.
§ 12 CONFIDENTIALITY, DATA PROTECTION, PRESS RELEASES
(01) The contractual parties undertake to treat as confidential for an unlimited period of time the subject matter of the contracts concluded with each other and all confidential information and trade secrets of the other partner acquired during the performance of contract. This information is only to be used during the performance of contract. Among CONTENTSERV’s trade secrets are also CONTENTSERV’s standard software and other works and services provided under the present General Terms and Conditions.
(02) The Customer is only permitted to make the subject matter of the contract accessible to employees and other third parties in as much as this is required in order for the Customer to exercise the authorization of use granted to it. The material, knowledge and experience must only be used for the purpose of this contract. Third parties shall have no access to this information as long as it is not intended for third parties or is already familiar to the third party. Third parties do not include those auxiliary persons who have been brought in to perform the contract such as freelancers and sub-contractors, etc.
(03) Furthermore, the Customer shall treat all contract subject matter as confidential. The Customer shall instruct all persons, to whom the Customer has granted access to the contract subject matter, of CONTENTSERV’s rights to the contract subject matter and the obligation to maintain confidentiality. The Customer shall store the subject matter of the contract, particularly the source codes of CONTENTSERV products and modules, and documentation safely in order to prevent misuse.
(04) The Customer shall ensure that all necessary requirements have been fulfilled (e.g. by obtaining acceptance agreements), so that CONTENTSERV can perform the works and services under contract without infringing any provisions of the data privacy act.
(05) CONTENTSERV shall comply with the provisions of the data privacy act. Where CONTENTSERV is granted access to hardware and software used by the Customer (e.g. for remote maintenance), it is not intended that CONTENTSERV should process or use personal data for business purposes. The transfer of personal data shall only take place in exceptional circumstances as an incidental legal consequence of CONTENTSERVe performing its contractual duties. CONTENTSERV must treat these personal data in accordance with the provisions of the German data privacy act and other applicable protection legislation. The secrecy obligation also applies beyond termination of the contractual relationship.
(06) If requested by a contractual party, the material that has been provided by the party, such as strategic papers, briefing documents, etc. must be returned to its owner after termination of the contractual relationship provided that the other contracting party cannot prove any legitimate interest in it.
(07) A contractual party is only permitted to make reference to the other party in a press release and/or disclosure of information if an agreement has been made beforehand in writing or by email.
(08) CONTENTSERV is entitled to include the Customer in its customer reference list.
III General Terms and Conditions for the Delivery and Use of Software in Return for Payment
§ 1 SCOPE OF WORKS AND SERVICES
(01) The subject matter of these terms is the delivery of different components and modules of CONTENTSERV software and their unlimited use. The software is suitable for supporting the editing and processing of content and its output.
(02) CONTENTSERV software involves a browser-based client/server application, as well as the corresponding client applications.
§ 2 REQUIREMENTS FOR THE IMPLEMENTATION OF THE SOFTWARE
The Customer must provide access to the necessary hardware and systems software, as well as to the necessary network for the implementation of the CONTENTSERV software. The Customer shall be informed on request of the required hardware and software before delivery.
§ 3 SCOPE OF DELIVERY
(01) The program is delivered in the source code on a standard data carrier including the English documentation. Unless otherwise agreed, the Customer installs the software products and puts them into operation.
(02) The installation and configuration of hardware and software, the implementation, modification and customizing of CONTENTSERV software to meet the Customer’s requirements, the training of the Customer’s employees, as well as maintenance services are not included in the usual scope of delivery. These services can be acquired additionally.
§ 4 WARRANTY
(01) CONTENTSERV warrants that the software is essentially free of material and manufacturing defects for a period of 12 months after delivery. If the Customer is a consumer within the meaning of the German Civil Code, the warranty period is two years.
(02) CONTENTSERV warrants that the works and services to be performed shall be carried out with the required care and diligence by appropriately qualified personnel.
(03) CONTENTSERV warrants for defects in the delivered products including the absence of warranted quality as follows: CONTENTSERV warrants that the programs are executable and meet the program specifications as described in the corresponding documentation unless reference has been made to something else. The Customer is aware of the fact that with software, errors in programs and documentation cannot be excluded altogether. For this reason, such errors only lead to warranty claims if they prevent the implementation of the programs for the Customer’s purposes in an unacceptable manner.
(04) In the case of defects the procedure is regulated pursuant to Part II, Section 10, clause 2 of these Terms and Conditions. Furthermore, the required data carrier, exact documentation and other information must be provided for software defects when notification of the defect is made, so that the defect can be traced. In the case of defects that are not easy to reproduce, the Customer must provide a workable test example.
(05) CONTENTSERV shall remedy detected defects free of charge by means of the elimination of defects, work-arounds, or compensation at CONTENTSERV’s option. The exact corresponding conditions are found in Part II, Section 10, clause 3 of these Terms and Conditions.
(06) Should the supplementary performance fail definitively after expiry of a reasonable, additional time period set by the Customer, the Customer can reduce remuneration, withdraw from the contract, or terminate a continuous obligation. The requirements of Part II, Section 2 (Contractual obligations) of these Terms and Conditions must be adhered to with regard to the setting of an additional time period. CONTENTSERV shall compensate for loss or wasted anticipatory expenditure caused by a defect subject to the exclusions and limitations in Part II, Section II (Liability). Other rights based on material defects or defects in title are excluded. CONTENTSERV provides the same warranty for the elimination of defects or compensation delivery as for the original software product. In this case also, any detected defects in the CONTENTSERV software must be reported immediately. The limitation period for this claim comes into effect 3 months after completion of the elimination of the defect or after the compensation delivery but with expiry of the original limitation period at the earliest.
(07) The limitation period for claims pursuant to clauses 5 and 6 comes into effect one year from the beginning of the statutory period of limitation for claims regarding the respective material defects and defects in title. This also applies to claims arising from withdrawal from contract and reduction in remuneration in accordance with clause 6, line 1. The shortening of the limitation period does not apply in the case of intent or gross negligence on the part of CONTENTSERV, fraudulent concealment of a defect, personal injury, or defects in title to which the German Civil Code, section 438(1)(1) (a) (§ 438 Abs. 1 Nr. 1a BGB) applies.
(08) In the case of defects in improvement services, work-arounds or compensation delivery during supplementary performance, the limitation period also ends at the time indicated in clause 7. If CONTENTSERV examines the existence of a defect or carries out supplementary performance with the Customer’s consent, the limitation period shall be suspended until CONTENTSERV notifies the Customer of the results of its examination, declares the supplementary performance terminated or refuses to carry out supplementary performance. The limitation period goes into effect three months after the end of the suspension at the earliest.
(09) If CONTENTSERV provides services during the identification or elimination of a defect without being under obligation to do so, (particularly if a support contract has not been concluded according to Part VI, Section 1), CONTENTSERV can bill the extra work in accordance with Part II, Section 6 (Payment, price, terms of payment, retention of rights) and Part VI, Section 1. This applies especially if a reported material defect cannot be reproduced or attributed to CONTENTSERV. If the Customer does not fulfil its duty to collaborate, does not operate the software or contract goods appropriately, or has not used the services recommended by CONTENTSERV (i.e. upgrade to a current version), CONTENTSERV is entitled to remuneration for the time and expense involved in remedying any defects resulting from the Customer’s behaviour.
(10) The warranty does not cover defects resulting from normal wear, inappropriate operation, incorrect equipment, the influence of extraneous programs and/or devices, incorrect installation, changes or additions to the programs or any other tampering on the part of the Customer or any third parties, as well as copies made by the Customer.
(11) Any other warranty, in particular, that the software is suitable for specific purposes, for damages that have been caused directly or indirectly (e.g. lost profit, interruption of operation), as well for the loss of data or damages that have arisen during the recovery of data, are expressly excluded.
(12) The Customer shall lose all warranty rights and claims it is entitled to as the result of a defect, where applicable, if the Customer itself or a third party changes the program without CONTENTSERV’s consent. That is, unless the Customer can prove that a defect has not been caused by the change made to the program by the Customer or a third party.
§ 5 RIGHTS OF USE
The software rights of use comply with CONTENTSERV’s End User License Agreement (EULA) to which reference is made here and at the time of installation. This agreement can be made accessible to the Customer at any time and/or viewed under www.contentserv.com.
§ 6 DELIVERY TIME
(01) The stipulated delivery times apply only on condition that all details pertaining to the contractual relationship have been clarified on time.
(02) The delivery times refer to when the software is sent from CONTENTSERV’s company headquarters. If the software products cannot be sent on time through no fault of CONTENTSERV, the delivery times are deemed to be met with the notification of readiness for dispatch. When the software is handed over to the courier, the danger of accidental loss or damage is at the Customer’s own risk and expense.
§ 7 RETENTION OF TITLE
(01) CONTENTSERV reserves title of all delivered software until all accounts receivable arising from the business relationship with the Customer have been settled.
(02) Insofar as the Customer resells the software before it has acquired the title, the Customer must assign all accounts receivable accruing from the sales contract with the buyer automatically to CONTENTSERV in order to hedge receivables.
§ 8 COPYRIGHT AND TRADEMARK RIGHTS, THIRD-PARTY RIGHTS
(01) The Customer acknowledges CONTENTSERV’s copyright and thus the exclusive rights of use, and exploitation rights to the software. The exclusive rights of use and exploitation rights also apply to software enhancements or changes which CONTENTSERV performed for the Customer as ordered.
(02) The Customer acknowledges the trademark rights, naming rights, and patent rights to the software and the corresponding documentation. The Customer is not permitted to remove any indication of copyright and/or existing trademark rights, to change them or to otherwise alter them beyond recognition.
(03) The software contains licensed third-party software which is either embedded in the software or delivered with it.
(04) All rights to the software belong to CONTENTSERV. These rights, in particular, comprehensive copyright (and/or all the transferable rights arising from it) belong exclusively to CONTENTSERV. All powers to the entrusted software components/modules, documentation and information belong exclusively to CONTENTSERV during the process of negotiation and conclusion of contract, including warranty, maintenance and support.
(05) CONTENTSERV only uses programs, systems and processes which do not infringe third-party rights. If third parties raise claims against Customers on account of infringement of patents, copyright or other rights, CONTENTSERV shall indemnify the Customer from these claims and take over the out-of-court and court defence. The exact conditions comply with Part II, Section 10, clause 8.
IV General Terms and Conditions for Training Courses and Workshops
§ 1 SCOPE OF WORKS AND SERVICES
The Customer’s employees shall be familiarized with the operation of the products, solution scenarios, and applications in training courses and/or workshops at CONTENTSERV’s headquarters. The course details and scope of services, as well as the prerequisites for participation can be found in the currently valid price list.
§ 2 ENROLMENT BY THE CUSTOMER, CONFIRMATION OF ENROLMENT
The Customer must enrol for training courses and/or workshops in writing to CONTENTSERV (by fax or email). The Customer shall receive confirmation of enrolment from CONTENTSERV well before the course/workshop begins.
§ 3 CANCELLATION OF A TRAINING COURSE AND/OR WORKSHOP BY CONTENTSERV
In the case of cancellation of a training course and/or workshop at short notice for an important reason (i.e. illness of the trainer, force majeure), the Customer has no claim to remuneration of costs that have already accrued during the preparation of the training course and/or workshop.
§ 4 SUBSTITUTION OF PARTICIPANTS, CANCELLATION BY THE CUSTOMER
(01) The Customer is entitled to enrol another employee instead of the originally enrolled participant until before the course begins. This new participant, however, must fulfil the prerequisites for the respective training course and/or workshop as described in the program of events.
(02) In the case of cancellation of enrolment up to a month before the course date, no costs will incur to the Customer.
(03) In the case of cancellation within a month but more than 10 workdays before the course begins, CONTENTSERV shall bill the Customer a lump sum in the amount of 20% of the course fee plus VAT.
(04) In the case of cancellation 10 to 6 workdays before the course begins, 50 % of the course fee shall be charged. In the case of cancellation 5 days or fewer before the course or in the case of non-attendance, CONTENTSERV shall bill the Customer 90% of the fees plus VAT. The Customer is reserved the right to prove to CONTENTSERV that a higher proportion of expenditure was saved.
(05) In the case of cancellation or a change in dates on the Customer’s part, the Customer must bear the full cost of the cancellation fee and/or already booked trips and other incurred expenses.
V General Terms and Conditions for Update and Upgrade Contracts
(01) If the Customer has not concluded an Update and Upgrade Contract with CONTENTSERV, it is only entitled to the statutory warranty. Until expiry of the warranty as per contract, significant defects that have arisen in the CONTENTSERV software products/modules shall be remedied in the form of so-called hot fixes. Hot fixes comprise small patch packages with few files which remedy a trouble ticket exactly. During this process, however, the rest of the ContentSev system remains as unaltered as possible. In this case, the hot fixes are provided free of cost in the CSNet to download or are sent as an attached file via email to the responding Customer after active notification of the defect by CONTENTSERV. After expiry of the warranty period as per contract the Customer is no longer entitled to this service without an Update and Upgrade Contract.
(02) Further, service packs and releases of software products/modules from CONTENTSERV can only be used in conjunction with a valid Update and Upgrade Contract with the Customer.
(03) The cost of the update and upgrade services are calculated from 15 % of the list price of the selected CONTENTSERV software products and modules plus VAT. In each case, the basis for this calculation is the sum resulting from the valid price list at the time of conclusion of the Update and Upgrade Contract or at the time of purchase of software components which CONTENTSERV delivered to the Customer at a later date. Special discounts shall not be taken into account. For products and/or modules that have been acquired by CONTENTSERV at a later point in time, the additional update and upgrade costs shall be billed immediately after delivery in accordance with the actual service life. These costs shall be based on the list prices contained in the price list valid at this time. Subsequently agreed update and upgrade services shall be calculated in accordance with the CONTENTSERV price list valid at the time.
(04) The payments to be made on the basis of an Update and Upgrade Contract are independent of the value of the software. The fees for updates and upgrades are calculated in advance on an annual basis. The contract runs for one year. It shall be extended by another year automatically if notice of termination is not given three months before the end of the year. Notice of termination must be given in writing.
(05) After release, CONTENTSERV shall provide the Customer automatically and immediately with all updates, that is, with all improved versions, and upgrades, that is, with all further developed versions (particularly new features) for the components of the CONTENTSERV software products to download from the CSNet.
(06) The installation of updates and upgrades is not part of the contract. Installation can, however, be carried out by CONTENTSERV at a reduced hourly rate based on the hours of work.
VI General Terms and Conditions for Support
(01) CONTENTSERV accepts complaints concerning CONTENTSERV software by email without a valid support contract within the statutory and above all contractual warranty period. If the reported material defect cannot be reproduced or attributed to CONTENTSERV, CONTENTSERV can bill the work involved according to the currently valid hourly support rate of 280 €. This rate shall be charged every 15 minutes, the minimum time, however, being 15 minutes. CONTENTSERV is also entitled to remuneration for the additional time and effort involved in order to eliminate defects that occur in the CONTENTSERV software for the following reasons: The Customer does not properly fulfil its duty to collaborate and/or uses support services outside the statutory and/or contractual warranty period of previous CONTENTSERV versions. The Customer does not operate the software or contract goods appropriately (i.e. classic application errors) and declares these errors either mistakenly or intentionally as defects.
(02) In the case of Customers with a support contract, the response time and the remedying of a reported software defect are determined according to the number of support tickets to be processed and the urgency. A response time of fewer than 36 hours cannot be guaranteed for urgent enquiries.
(03) After the acceptance of a project, special and technical enquiries regarding the software products/modules, their use, explanations of the handbooks and technical documentation can only be dealt with by CONTENTSERV if the Customer has a valid support contract or through the support hotline at an extra charge.
(04) The Customer can select from different support models: a) Ticket-based billing according to the amount of time and work, monthly charge according to the use of the support services in accordance with clause 1. b) The exact stipulations regarding the preceding are found in the corresponding CONTENTSERV Support Contract. Price information can be found in the current price list.
VII General Terms and Conditions for the Installation of Software
§ 5 SCOPE OF WORKS AND SERVICES
(01) The subject matter of these terms and conditions is the installation of software. This includes the storing of program files in the Customer’s main memory and/or its service provider, as well as the carrying out of the necessary adjustments to the system parameters (configuration).
(02) Installation is a service; the fulfillment of certain functional features of the software and/or the remedying of software defects is not subject matter of the contract.
§ 6 INSTALLATION REQUIREMENTS
(01) The requirements for an installation by CONTENTSERV are, in particular, the efficient functioning of the installed hardware and respective required system software, a correctly subnetted network, as well as the provision of trained computer operation staff on the part of the Customer and/or its service provider. The Customer or its service provider is responsible for the punctual creation of the necessary installation requirements at its own expense.
(02) Waiting time, additional travelling expenses and time, as well as work that has to be carried out for reasons justified by the Customer/service provider that are unacceptable to CONTENTSERV shall be billed additionally by CONTENTSERV with reference to the valid hourly rates in accordance with the valid price list.
§ 7 COMPLETION OF THE INSTALLATION
(01) The installation is complete when the program files are stored on the hardware of the Customer or its service provider and the necessary adjustments have been made to the system parameters.
(02) After completion of the installation, a test run of the basic functions is carried out and an acceptance certificate is issued. The acceptance certificate must be signed by the Customer or its service provider, as well as by the responsible CONTENTSERV employee.
§ 8 INSTALLATION TIME
(01) The agreed installation times and dates are only valid on condition that the clarification of all details of the order and the fulfillment of all the Customer’s obligations were carried out on time, for example, the punctual completion of preparation for the installation on the Customer’s part.
(02) Installation times refer to the time of completion of the installation. If the installation is delayed for reasons that cannot be attributed to CONTENTSERV, the installation time shall be considered maintained.
VIII Final Provisions
(01) There are no verbal subsidiary agreements. Amendments and additions to these General Terms and Conditions must be in writing. This also applies to the removal of this clause concerning written form.
(02) All prices are net prices that do not include the statutory value-added tax.
(03) If these General Terms and Conditions are void in whole or parts, the effectiveness of the remainder shall be unaffected. The contractual parties are to replace by common accord the ineffective provision by another provision which, under consideration of the interests of both parties, suitably fulfils the desired economic purpose. The same applies to the filling of loopholes, which may arise.
(04) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Pfaffenhofen a.d. Ilm, provided that the Customer is a business person, a public law body corporate or special fund.
(05) This contract shall be governed exclusively by German law. The provisions of the CISG (United Nations Convention on Contracts for the International Sale of Goods) shall not apply.