General Terms and Conditions
1. Scope of application, conclusion of contract
1.1 “OS” shall be OPTIMAL SYSTEMS GmbH or any affiliated
company affiliated with the OPTIMAL SYSTEM group in
accordance with §§ 15ff. AktG.
1.2 The following General Terms and Conditions
(hereinafter referred to as "GTC") apply to all contracts
concluded with Customers by OS in relation to the
delivery and maintenance of software and the provision
of consulting and other services in this context
("individual contracts"). In the event of contradictions
between these GTC and the provisions of an individual
contract, the provisions of the individual contract shall
take precedence.
1.3 The Customer's general terms and conditions shall not
become part of the contract even if OS does not
expressly object to them. The Customer's general terms
and conditions deviating from these GTC are only valid
if OS expressly confirms this in writing.
1.4 The Customer is bound to its orders for 14 days.
2. Right to Use
2.1 Rights to use software result from the respective
license conditions and/or from the software license
agreement. If the delivery of third-party software is the
subject matter of the contract, OS shall, in case of
doubt, procure the rights of use for the Customer in
accordance with the license terms of the respective
manufacturer. Unless expressly agreed otherwise in
writing, only non-exclusive rights of use to software are
granted. There shall be no transfer or granting of rights
to source codes and no granting of processing rights.
Rights are granted exclusively to the executable object
codes.
2.2 Rights to adaptations of software and similar copyright
services performed on behalf of the Customer shall
never exceed the scope of rights that OS has granted
the Customer to the original software or services and
shall only entitle the Customer to joint use with the
original software or the original services.
2.3 OS shall grant the Customer a simple, non-exclusive,
and non-transferable personal right to use the final
results of project- or consulting services for its own
internal business purposes with full payment of the
agreed remuneration, except for software. Software
usage rights are set in Sections 2.1and 2.2.
3. Fees
3.1 Unless otherwise agreed, OS deliveries and services
shall be remunerated in accordance with OS's current
price list at the time of conclusion of the contract or
call-off of services. If fixed prices have been agreed and
OS provides additional services at the request of the
Customer that are not included in the agreed scope of
the fixed-price services, these shall be remunerated
additionally on a time and material basis.
3.2 Regardless of the type of remuneration, the Customer
shall bear any travel and accommodation costs as well
as other expenses (collectively referred to as costs)
incurred by OS employees and third parties
commissioned by OS for on-site assignments. These
costs are usually invoiced monthly by OS with the
original receipt or at the maximum rates recognized for
tax purposes. Travel times are charged at the currently
applicable hourly rates. OS will arrange travel only after
prior consultation with the Customer.
3.3 All remunerations are exclusive of statutory value
added tax. Any charges and fees, in particular customs
duties in the case of exports, shall be borne by the
Customer.
3.4 Payments shall be made within 30 calendar days of
receipt of the invoice without discount to the account
specified on the invoice.
3.5 The offsetting of counterclaims and the assertion of a
right of retention by the Customer are not permitted,
unless the claims are undisputed or recognized by final
judgment. Furthermore, the Customer can assert a right
of retention only if it is based on the same individual
contractual relationship as the claims of OS.
3.6 If the Customer defaults on payment, OS is entitled,
without prejudice to its other rights, to suspend
performance until the Customer has made all
outstanding payments.
4. Warranty for material defects
As far as claims for material defects exist against OS
due to the nature of the respective services by law, the
following applies:
4.1 OS guarantees that, at the time of the transfer of risk,
the deliveries do not have defects that invalidate their
suitability for the contractually stipulated use in
accordance with the agreed service description or
substantially reduce it. The limitation period for claims
for material defects is 12 months.
4.2 In the event of a warranty claim, OS is initially entitled,
at its own discretion, to rectify defects or provide a
replacement delivery. Only if the defect has not been
remedied within a period of three months may the
Customer, in accordance with the applicable statutory
provisions, demand either a reduction in the
remuneration or withdrawal from the contract. However,
withdrawal is possible only with regard to the partial
performance concerned and only in the event of a
serious defect that excludes or significantly hinders
commercial use. In the case of continuing obligations,
withdrawal from the contract is excluded. Instead, the
Customer can terminate the contract extraordinarily. At
OS's request, the Customer is obliged to declare within
a reasonable period of time whether it will withdraw
from or terminate the contract after failed or refused
subsequent performance or whether it insists on
contractual performance. The right of self-performance
is excluded.
4.3 A reasonable circumvention of the error or the
demonstration of a reasonable circumvention of an
error by OS is equivalent to the elimination of the error,
whereby the right to reduction remains unaffected.
4.4 Obvious or recognizable defects shall be reported
immediately. The same applies to the notification of
hidden defects after they have been identified. For this,
the Customer shall describe the time and detailed
circumstances of the occurrence of the defect, and
state the defect pattern and its effect. § 377 HGB
remains unaffected.
4.5 If the Customer changes deliveries or services on parts
that are not intended for changes by the Customer or
operates deliveries and services in a non-specified
system environment, warranty is excluded unless the
Customer proves that the defect cannot be attributed
to the aforementioned behavior of the Customer. OS
does not provide any warranty for faulty configurations
by the Customer or third parties or for defects that are
based on them.
4.6 Unless expressly agreed otherwise in writing, OS does
not guarantee that the deliveries or services will work
with programs selected by the Customer or meet any
special requirements of the Customer, or that the
Customer will achieve its desired goals.
4.7 Information materials, brochures, oral information, and
promises of any kind, in particular descriptions,
illustrations, drawings, and indications of quality,
character, composition and usability, shall be
understood exclusively as a description of the
character and not as an independent warranty,
guarantee of character or durability, or assurance of
certain properties by OS.
4.8 OS provides an independently audited certification,
that the Software complies with certain laws, official
regulations, and industry norms and standards. OS does
not guarantee compliance with any laws, regulations, or
industry norms or standards that extend beyond the
certified ones.
5. Warranty for defects of title, industrial property rights
As far as claims for defects of title exist against OS due
to the nature of the respective services, the following
applies:
5.1 OS guarantees that, to the best of its knowledge, the
deliveries are free of third-party industrial property
rights that exclude or restrict their use by the Customer.
The limitation period for claims for defects of title is 12
months.
5.2 If infringements of industrial property rights are
asserted within the warranty period and the contractual
use of the deliveries is impaired or prohibited, OS is
obliged, at its discretion, either to modify or replace the
deliveries in such a way that it is no longer subject to
industrial property rights, but nevertheless complies
with the contractual provisions, or to obtain the right
that it can be used in accordance with the contract
without restriction and without additional costs.
5.3 The Customer is obliged to inform OS immediately in
writing if claims for infringement of property rights are
asserted against it and to act in agreement with OS
when dealing with third parties. In particular, OS is
entitled and obliged to conduct all legal disputes
arising from these claims at its own expense. OS
releases the Customer from all costs that are asserted
against the Customer in the context of claims of third
parties due to infringement of industrial property rights.
6. Liability
OS is liable for damages and expenses caused
intentionally or through gross negligence as well as for
injury to life, body, or health or for liability according to
the Product Liability Act within the scope of statutory
provisions. In all other cases the liability of OS is limited
as follows:
6.1 OS is liable only for culpable breaches of essential
contractual obligations, i.e. obligations whose
fulfillment is essential for the proper performance of
the contract and on whose compliance the Customer
may regularly rely, and also in these cases only up to
the amount which could have been foreseen as damage
with the application of all necessary care.
6.2 Liability for consequential damages, the absence of
which is not covered by a warranty or guarantee, is
excluded.
6.3 The sum of all payments of damages and
reimbursement of expenses pursuant to clauses 6.1 and
6.2 is limited to a payment claim in the amount of the
respective order value. In the case of continuing
obligations, the annual remuneration to be paid in each
case shall be deemed to be the order value.
6.4 The strict liability of OS pursuant to § 536a, 1, BGB, due
to defects of rented software, which already existed at
the time of the conclusion of the contract, is excluded.
6.5 The limitations of liability regulated here apply
irrespective of the legal basis, in particular with regard
to pre-contractual and tortious claims. They also apply
to OS's vicarious agents and employees.
6.6 The limitation period for non-fundamental breaches of
contract shall be limited to two years, unless a shorter
period is provided for by law. The limitation period shall
start to run at the end of the year in which the claim
arose.
7. Non-disclosure
7.1 The Parties undertake to treat in strict confidence
information and/or knowledge of whatever nature that
is not intended for the general public and that is made
available to them in connection with contractual
relationships and preliminary negotiations for
contracts or otherwise made known to them in any
other way and not to make it accessible to third parties
either during the existence of the contractual
relationship or after its termination.
7.2 The Parties shall ensure that their employees are
subject to an appropriate confidentiality obligation.
8. Service performance
8.1 OS is also entitled to have the contractual services
performed by third parties (in particular companies
affiliated with the company group in accordance with
§§ 15ff. AktG). OS's responsibility for the proper
performance of services remains unaffected by this.
8.2 OS has the professional and disciplinary right to issue
directives to the employees of OS. This also applies if
the services of OS are to be carried out at the
Customer's premises or at third-party premises for
project-related reasons. The Customer shall ensure
that no direct instructions are given to OS employees
unless this concerns legal or operational safety
regulations. The employees of OS or subcontractors of
OS shall not enter into an employment relationship with
the Customer, even if they work on the Customer's
premises. The Parties shall ensure that OS employees
are not integrated into the Customer's operations in
their respective organizational areas.
9. Special regulations for services and consulting
9.1 The content of OS services results from the contractual
service description, e.g. a specification, a service level
agreement, or an offer. The subject matter of the
service is the agreed consultation or support activities,
but not the achievement of a certain result. Unless
further specified in the service description, the
realization or implementation within the general state
of the art is at the discretion of OS.
9.2 The Customer can request subsequent changes to the
scope of services from OS. OS will then submit an offer,
including any necessary changes to the previous
agreements, in particular with regard to remuneration,
scheduling, and coordination with other services.
However, OS is not obliged to submit a corresponding
offer. The Customer shall immediately inform OS as to
whether it accepts or rejects the offer.
9.3 In the event of remuneration on the basis of time spent,
the time schedules submitted by OS shall be deemed
accepted by the Customer if it does not expressly
object to them in writing within 14 days of receipt. OS
shall expressly refer to this on presentation of the time
schedule.
9.4 Insofar as acceptance is provided for individual services
according to the law or the Parties agree on
acceptance, the following provisions shall apply:
9.5 Errors occurring during acceptance or testing are
documented and classified into three groups:
- Errors preventing operation – errors that make it
impossible for Customers to guarantee their work
orders, as the functions of the software required for
this are faulty and a change to the procedure or
workarounds are not possible.
- Errors hindering operation – errors that make it
harder for Customers to guarantee their work orders,
because the necessary functions of the software are
faulty, but the work results, even if there are
complications or workarounds, can be achieved or
the work can be postponed.
- Minor errors – errors that do not result in any major
complications in using the software and only slightly
reduce the capability of the software. Minor errors,
then, impede operations if they appear frequently
enough that regular work is made considerably more
difficult.
9.6 If test cases have been agreed for acceptance,
acceptance is deemed to have been granted if the test
cases have achieved the specified results for the
specified input data. Otherwise, the Customer shall
grant acceptance if the service does not show any
errors preventing operation.
9.7 Errors occurring during acceptance shall be corrected
by OS within a reasonable time or bypassed in such a
way that they no longer significantly impair
performance. The necessary work shall begin
immediately after completion of the acceptance test.
9.8 The Customer may reserve the right to remedy defects
that do not prevent acceptance and that are remedied
by OS within the scope of the warranty.
9.9 At the request of one Party, the result of the
acceptance shall be recorded in a report to be signed
by both Parties.
9.10 Acceptance shall be deemed to have been granted if
the Customer performs production work or other work
on the basis of production data. This also applies if it is
done only on a trial basis, e.g. in a parallel test
operation. The same applies if the Customer does not
assert any errors that prevent acceptance within 30
days of the provision of the acceptance service (errors
preventing operation in accordance with Section 9.5).
9.11 All work prior to acceptance is carried out by the
Customer at its own risk. The liability of OS for damages
and increased expenditure that results from such work
is excluded, unless OS has caused the damages or
increased expenditure intentionally or through gross
negligence.
10. Final clauses
10.1 If OS’ registered business address is in Germany,
German law, and if OS’ registered address is Austria,
Austrian law shall apply. Legal provisions that refer to
other legal systems shall be excluded. The uniform UN
Convention on Contracts for the international Sale of
Goods (UNCITRAL) does not apply.
10.2 If the Customer is a merchant, a legal entity under
public law, or a special fund under public law, the
exclusive place of jurisdiction for any disputes arising
from and in connection with this contract shall be
Berlin, Germany. However, OS is also entitled, at its
discretion, to bring an action against the Customer at
its general place of jurisdiction.
10.3 The Customer can assign rights and obligations from
this contract only with the prior written consent of OS.
§ 354a HGB remains unaffected by this.
10.4 Should any provision of this Agreement be invalid, this
shall not affect the validity of the remainder of this
Agreement if it can be assumed that the Parties to the
Agreement would still have concluded the Agreement.
In place of the invalid provisions, a provision shall be
deemed to have been agreed which corresponds to the
statutory provision. Should the Parties to the
Agreement have overlooked a point in need of
regulation in the contractual regulations, the regulation
shall be deemed to have been agreed as they would
have agreed had they known about the gap in the
Agreement and taking into account the interests of
both Parties.
10.5 Changes or amendments to these GTC or the other
contractual documents shall be made in writing and
signed by the authorized contact persons of both
contractual Parties in order to be effective.
Cancellation of the written form requirement shall also
be made in writing in order to be effective. The written
form requirement is deemed to be fulfilled in the case
of communication by fax. An email does not satisfy the
written form requirement.
10.6 Only the German version of these and conditions terms
is legally binding. The English translation is solely for
information purposes.