Terms and conditions
1. Validity of the terms and conditions
1.1
These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively to the use of software solutions offered by Corevas GmbH & Co.KG (hereinafter referred to as “Provider”), to services agreed upon within the scope of the relevant contractual relationship, and to pre-contractual obligations, unless otherwise agreed. Other contractual terms and conditions shall not become part of the contract, even if the Provider does not expressly object to them.
1.2
Even if no further reference is made to this when concluding similar contracts, these GTC shall apply exclusively in the version available at www.emergencyeye.de when the customer submits the declaration, unless the contracting parties agree otherwise in writing.
1.3
Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4
Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.5
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. Conclusion of contract
2.1
Offers of the supplier are subject to change and non-binding, unless the offer is designated in writing as binding. A legal binding comes about only through a contract signed by both parties or through a written order confirmation of the provider, furthermore through the fact that the provider starts to provide the service after the order. The Provider may request written confirmations of verbal contract declarations made by the Customer.
2.2
The customer is bound to his declarations on the conclusion of contracts for four weeks.
3. Scope of services
3.1
The scope of services is defined in the contract signed by both parties and in the respective product or service description.
3.2
Before placing a binding order or concluding a contract, the customer is responsible for obtaining information from the provider about the current prices and any changes to the scope of services and functions.
3.3
Other information or requirements shall only become part of the contract if the contracting parties so agree in writing or if the supplier has confirmed them in writing. Subsequent changes to the scope of services require written agreement or written confirmation by the provider. This does not affect the right of the provider to make updates or upgrades.
3.4
Product descriptions, representations, etc. are descriptions of performance, but not guarantees. A guarantee requires an express written declaration by the management of the supplier.
4. Remuneration, payment, performance protection, deadlines
4.1
Unless otherwise agreed, the remuneration is usually calculated in the form of an annual usage fee at the Provider’s prices valid at the time of the conclusion of the contract and regulated by contract in each case. Remunerations are always net prices plus legally applicable value added tax. Invoicing is carried out according to the respective contractually regulated deadlines.
4.2
If services are paid for on a time and materials basis, the provider shall document the nature and duration of the activities and submit this documentation with the invoice.
4.3
Unless otherwise contractually agreed, all invoices shall be payable without deduction no later than 14 calendar days after receipt free paying agent.
4.4
With regard to payment claims of the Provider, the Customer may only offset or exercise a retention with undisputed or legally established claims.
4.5
The Provider retains title and rights to be granted to the Services until full payment of the remuneration owed, taking into account justified retentions for defects pursuant to Section 4.4 of these GTC. Furthermore, the supplier retains ownership until all his claims arising from the business relationship with the customer have been fulfilled. The Provider shall be entitled to prohibit the Customer from further use of the Services for the duration of any default in payment by the Customer. The provider can only assert this right for a reasonable period of time, usually for a maximum of 12 months. This does not constitute a withdrawal from the contract. § 449 para. 2 BGB remains unaffected.
4.6
If the customer or the customer’s customer returns the services, the acceptance of the services does not constitute a withdrawal by the supplier, unless the supplier has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the supplier. The customer may neither pledge nor assign by way of security items subject to retention of title or reservation of rights.
4.7
The customer is strictly prohibited from reselling.
4.8
If the customer does not settle a due claim in full or in part by the contractual payment date, the provider may revoke agreed payment terms for all claims. Furthermore, the supplier is entitled to perform further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer licensed in the European Union. The advance payment shall cover the respective billing period or – in the case of one-time services – their remuneration.
4.9
In the event of the Customer’s economic inability to fulfill its obligations to the Provider, the Provider may terminate existing exchange contracts with the Customer by rescission or continuing obligations by termination without notice, including in the event of an application for insolvency by the Customer. § Section 321 BGB and Section 112 InsO shall remain unaffected. The Customer shall inform the Provider in writing at an early stage of any impending insolvency.
4.10
Fixed performance dates shall be agreed exclusively in an expressly documented form. The agreement of a fixed date of performance shall be subject to the proviso that the Provider receives the services of its respective upstream suppliers in due time and in accordance with the contract.
5. Cooperation, duties to cooperate, confidentiality
5.1
The customer and the provider shall each designate a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contact persons. The contact persons shall immediately bring about all decisions related to the execution of the contract. The decisions shall be documented in a binding manner.
5.2
The Customer is obliged to support the Provider as far as necessary and to create in its sphere of operation all conditions required for the proper execution of the order. To this end, he will in particular provide necessary information and, if possible, enable remote access to the customer’s system.
5.3
The Customer shall also ensure that expert personnel are available to assist the Provider. Insofar as it is agreed in the contract that services can be performed on site at the Customer’s premises, the Customer shall provide sufficient workplaces and work equipment free of charge at the Provider’s request.
5.4
Unless otherwise agreed, the customer shall provide for proper data backup and failure precautions for data and components (such as hardware, software) that are appropriate to their type and importance.
5.5
The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect must be stated. Unless otherwise agreed, the appropriate forms and procedures of the Provider shall be used for this purpose.
5.6
Upon request, the Customer shall provide the Provider with appropriate support in examining and asserting claims against other parties in connection with the provision of services. This applies in particular to recourse claims of the supplier against upstream suppliers.
5.7
The customer and the provider are obliged to maintain confidentiality regarding business and trade secrets as well as other information designated as confidential that becomes known in connection with the execution of the contract. Such information may only be disclosed to persons who are not involved in the conclusion, performance or execution of the contract with the written consent of the respective other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information has become known, but in the case of continuing obligations not before their termination. The contractual partners shall also impose these obligations on their employees and any third parties engaged.
5.8
The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, they will therefore not make any claims based on the absence of encryption, except to the extent that encryption has been previously agreed.
6. Disruptions in the provision of services/ delay
6.1
If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with deadlines (hereinafter “disruption”), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. The Provider shall immediately notify the Customer of the cause of any disruption occurring in its area and the duration of the postponement.
6.2
If there is a delay on the part of the Customer, the Provider may also demand compensation for the additional work incurred in this respect, unless the Customer is not responsible for the delay and its cause lies outside its sphere of responsibility.
6.3
If the customer can withdraw from the contract due to improper performance of the provider and / or claim damages instead of performance or claims such, the customer will declare in writing at the request of the provider within a reasonable period of time whether he asserts these rights or continues to wish the performance of the service.
6.4
In the event of withdrawal, the Customer shall reimburse the Provider for the value of previously existing possibilities of use; the same shall apply to deterioration due to intended use.
6.5
If the Provider is in default with the provision of the service, the Customer’s compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of the default. The liability for default shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the default in the case of continuing obligations in relation to the remuneration for the respective services affected for the full calendar year. This does not apply insofar as a delay is due to gross negligence or intent on the part of the supplier.
7. Defects and reimbursement of expenses
7.1
The provider warrants the contractually owed quality of the services. There shall be no claims for material defects for an only insignificant deviation of the Provider’s services from the contractual quality.
7.2
Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, software errors that cannot be reproduced or otherwise proven by the customer, or in the event of damage that occurs due to special external influences that are not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties.
7.3
The limitation period for material defect claims is one year from the statutory commencement of the limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected. The same shall apply insofar as the law pursuant to sec. 438 para. 1 No. 2 or § 634a para. 1 No. 2 BGB prescribes longer periods, in the event of an intentional or grossly negligent breach of duty by the supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act.
7.4
The processing of a notice of material defect by the customer by the supplier only leads to the suspension of the statute of limitations insofar as the legal requirements for this are met. This shall not result in a new start of the limitation period. A supplementary performance (new delivery or rectification of defects) can only have an influence on the limitation period of the defect triggering the supplementary performance.
7.5
The Provider may demand remuneration for its expenses to the extent that
(a) it acts on a report without there being a defect, unless the customer could not with reasonable effort have discovered that there was no defect; or
b) a reported malfunction is not reproducible or otherwise provable by the customer as a defect, or
c) additional expenses are incurred due to the customer’s failure to properly fulfill existing obligations.
7.6
For defects of title the preceding clauses 7.1 as well as 7.3 and 7.5 shall apply accordingly.
8. Third party rights
8.1
The Provider shall not be liable for any infringement of third party rights by the Customer if and to the extent that such infringement results from a breach of the obligations assigned to it, in particular the rights of use granted under this Agreement. In this case, the customer shall indemnify the provider against all third-party claims upon first request.
8.2
If a third party claims against the customer that a service of the provider violates his rights, the customer has to inform the provider immediately.
9. Other liability
9.1
The provider is liable to the customer
a) for damages caused by him as well as his legal representatives or vicarious agents intentionally or by gross negligence,
b) under the Product Liability Act and
c) for damages resulting from injury to life, body or health for which the Provider, its legal representatives or vicarious agents are responsible.
9.2
The Provider shall only be liable for slight negligence if it has breached a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely. In the case of property damage and financial loss, this liability shall be limited to the foreseeable damage typical of the contract. Liability for other remote consequential damages is excluded.
9.3
For a single case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year. However, the contracting parties may agree in writing on a more extensive liability at the time of conclusion of the contract, usually for a separate fee. Priority is given to an individually agreed liability sum. The liability according to clause 6.1 remains unaffected by this paragraph.
9.4
Clause 7.3 shall apply accordingly to the limitation period.
9.5
From a warranty declaration, the supplier is only liable for damages if this was expressly assumed in the warranty. In the event of slight negligence, this liability shall be subject to the limitations set forth in Sections 9.2 to 9.4. The liability according to clause 9.1 remains unaffected.
9.6
In case of necessary recovery of data and/or components (such as hardware, software), the Provider shall only be liable for the effort required for the recovery in case of proper data backup and failure precaution by the Customer. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident.
10. Data protection
10.1
The Customer shall conclude with the Provider agreements necessary under data protection law for the handling of personal data.
10.2
The Customer and the Provider undertake to comply with the applicable provisions of data protection law, in particular the General Data Protection Regulation.
11. Choice of law and place of jurisdiction
11.1
These GTC and the contractual relationship between the Provider and the Customer shall be governed by the law of the Federal Republic of Germany, as it would apply to German residents, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.2
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of the supplier. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, the supplier is also entitled in all cases to bring an action at the place of performance of the service or a prior individual agreement or at the general place of jurisdiction of the purchaser. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.
