Contractual terms and conditions for software services of tetys GmbH & Co. KG
I. Provision of application programs (standard) and project implementation
1 Delivery of standard programs
1.1 The properties of the programs can be found in the respective product description, supplemented by the user documentation. The provisions of German law or similar mandatory requirements for the programs are complied with.
1.2 The programs are supplied in executable form (as object programs) together with user documentation.
If its programs contain interfaces to programs not to be supplied by tetys, tetys shall be obliged to make the necessary information about the interfaces available to the customer against payment of the costs of delivery. The customer may disclose this information to other contractors if required.
1.3 The programs are delivered on data carriers that identify their owner as the authorized user. Ownership of the data carriers shall not pass to the customer until the license fee has been paid in full.
2 Right of use
2.1 tetys grants the customer the right to use the purchased programs for his own purposes to the extent specified in the contract.
2.2 The amount of the license fee shall depend on the agreed scope of use. The customer may increase the agreed scope of use by paying the surcharge provided for in the tetys price list valid at that time.
2.3 The customer shall use the programs on configurations that tetys has approved. The customer shall inform tetys if he wishes to change the configuration.
2.4 The customer may resell the right of use per program in executable form (object programs, not source programs) to another user if he waives the use of the program and the other party undertakes to protect the program in writing by declaration to tetys prior to receipt of the program and acknowledges the agreed scope of the right of use to the program.
3 Implementation
3.1 tetys shall install the programs and provide brief instructions. The customer confirms receipt of the programs in writing.
3.2 tetys is prepared to support the customer in the commissioning of the programs. All support services (in particular installation, preparation for use and demonstration of operational readiness, instruction, training or consulting) shall be remunerated on a time and material basis, unless otherwise agreed.
3.3 The customer checks the programs under his operating conditions before using them productively.
3.4 Each contractual partner appoints a project manager. These can make decisions or bring them about immediately. The project manager of tetys shall record decisions in writing. The customer's project manager shall be available to tetys for necessary information. tetys shall be obliged to involve the project manager if this is required for the execution of the contract.
3.5 The customer shall ensure that expert operating personnel are available at the latest at the time of installation. At least one employee must be trained in a course for each program.
4 Obligations of the customer to protect the program
4.1 The customer acknowledges that the programs, including user documentation and other documents - also in future versions - are protected by copyright and are trade secrets of tetys and the respective manufacturer. He shall take precautions to ensure that these are protected against misuse.
4.2 The customer may only make reproductions (copies) for backup purposes as a replacement. The customer may reproduce the user documentation for the permitted use.
II. Customized programming
5 Object
5.1 tetys shall grant the customer the same right of use to customer-specific programming as to the standard programs provided, to which they belong.
5.2 Customer-specific programming is only supplied in executable form.
5.3 User documentation is supplied as a supplement to the user documentation for the standard program.
6 Implementation
6.1 If it is necessary to detail the customer's requirements in the contract or additional requirements (§ 7.1), tetys shall do so with the customer's support, prepare a detailed concept and submit it to the customer for approval. The customer shall respond in writing within 14 days. Unless otherwise agreed, this service shall be remunerated on a time and material basis.
6.2 The approved detailed concept is a binding specification for the programming owed. If necessary, tetys will refine it in the course of programming in consultation with the customer.
6.3 Otherwise, § 3 applies accordingly.
7 Changes to the requirements
7.1 If the customer wishes to change its requirements (which includes extensions), tetys shall be obliged to agree to this insofar as it is reasonable for tetys. Insofar as the realization of a change request has an effect on the contract, tetys may demand an appropriate adjustment of the contract, in particular an increase in remuneration and/or the postponement of deadlines.
7.2 Agreements on changes to the requirements and on the adaptation of the contract must be made in writing. If the customer declares a change request verbally, tetys may demand that the customer formulate it in writing or confirm it in writing itself. In the latter case, the formulation of tetys shall be binding if the customer does not object to it immediately.
7.3 tetys shall assert the request for adjustment of the contract without delay. The customer shall object immediately if he does not agree with the requested adjustments.
III. Maintenance of the programs
8 Object
8.1 For a flat-rate fee, maintenance shall include the sending of versions of the standard programs further developed by tetys, the elimination of program errors (over and above the obligation arising from the license agreement) and telephone support for questions regarding the handling of the programs. Maintenance is provided from the installation of the programs.
8.2 tetys shall provide telephone support during tetys' normal business hours, and only to those employees of the customer who have been designated as tetys system administrators and trained accordingly.
8.3 All other services are remunerated separately.
8.4 This care agreement can be terminated in writing, and only in its entirety, with three months' notice to the end of a calendar year, but at the earliest at the end of the agreed minimum term.
After termination of the maintenance agreement, the customer has no claim to the rectification of errors.
9 Fault rectification as an agreed service
9.1 Program errors are deviations from the properties that the programs should have or must have for their normal use according to the specifications of tetys for the current version.
9.2 The obligation to rectify errors as an agreed service and to provide telephone support relates to the latest standard version of the programs that tetys has released as part of the further development in accordance with § 10. It shall continue to apply to the previous version for twelve months after the release of the latest version. It shall continue beyond this for as long as it is unreasonable for the customer to accept it, insofar as tetys is able to provide these services; tetys shall be entitled to remuneration for the additional expenditure (including that incurred for the provision of the maintenance environment required for this).
9.3 Section 16 shall apply accordingly to the performance of troubleshooting as an agreed service.
10 Further development of the standard programs to be maintained
10.1 tetys undertakes to send further developed standard versions including the associated documentation stored on data carriers after release. This shall not apply to extensions that tetys offers separately as new programs. The customer shall test further developed versions before using them productively.
10.2 If a manufacturer of the system software required for the use of the programs for which it provides maintenance releases a further developed version of the system software, tetys shall check after its availability whether this interacts properly with the programs to be maintained by tetys, and shall release this in the positive case (cf. § 2.3). Otherwise, tetys shall be obliged to adapt the programs to be maintained to the further developed version of the system software within a reasonable period of time. The reasonable period shall commence with their release and availability for tetys.
10.3 For system software for which the manufacturer does not offer new versions as part of maintenance, but instead offers new generations for purchase from time to time, the following shall apply: If the manufacturer provides improvements (e.g. service packs), tetys shall proceed in accordance with § 10.2.
If the manufacturer offers a new generation, tetys shall adapt its own programs to this generation, taking into account the needs of the user community. If tetys does this, tetys shall only further develop the programs on this basis (see also § 10.4 para. 2).
10.4 The customer shall ensure that its IT system, in particular its system software, has the technical status required by the programs to be maintained within the scope of further development in accordance with § 10.2 and § 10.3. A new version of the programs may require the customer to acquire and use a new version of the system software and new hardware. tetys shall inform the customer in good time as to when which technical status is to be provided for the maintenance services.
However, the customer shall be entitled to use a generation of the system software for at least three years, unless otherwise agreed. If necessary, tetys shall continue to develop its own programs on this basis until this period has elapsed. tetys need only do this to the extent that the programs remain operational. This period is calculated from the release of the respective generation by its manufacturer. If tetys has to develop a compatible version of its own programs for their use, the period shall only be counted from the release of the compatible version.
The customer may only introduce a new version of the system software after tetys has released the programs for this (cf. § 2.3).
The customer shall inform tetys in advance if it wishes to install a new version of the required system software.
10.5. § 10.2 to § 10.4 shall apply accordingly to other third-party programs with which the programs of tetys are to interact. § 10.3 and § 10.4 shall also apply to third-party programs that are freeware or in the public domain (e.g. Linux).
10.6 tetys undertakes to further develop the current version if changes to statutory provisions or other government regulations relevant to the programs make this necessary.
The maintenance fee does not cover the inclusion of changes that can only be implemented by substantially or completely reprogramming the programs concerned, or of new rules or regulations. In this case, tetys may demand reasonable additional remuneration, taking into account all customers who require and commission the reprogramming.
10.7 If a further developed version is incompatible with the previous version, tetys shall provide migration aids insofar as this is reasonable for tetys in terms of the effort involved. In the case of programs from upstream suppliers, tetys shall only be obliged to pass on the migration aids provided by the upstream supplier.
11 Care allowance
11.1 The flat-rate monthly fee is calculated according to the agreed scope of use (§ 2.2). It will be adjusted as soon as this increases.
11.2 The flat-rate remuneration is payable annually in advance.
11.3 With effect from the next calendar year, tetys shall be entitled to demand the remuneration that tetys charges when concluding new maintenance contracts in accordance with the price list. Increases must be announced three months in advance. tetys is obliged to pass on reductions without notice.
12 Maintenance of customization programming
12.1 As long as a maintenance agreement exists for standard programs, tetys shall also maintain the associated customer-specific programming against payment at cost. Defects shall be remedied free of charge during the limitation period for claims due to defects ("warranty period") from the creation contract.
12.2 If maintenance is agreed for a flat-rate fee, the following applies: the maintenance services are provided in the same way as for standard programs. The lump sum also covers the transfer of customer-specific programming to further developed versions of the standard programs. Maintenance can be terminated by the customer in accordance with § 8.4 independently of that for the standard programs.
IV. General conditions
13 Remuneration, payments
13.1 Travel expenses shall be remunerated separately. Insofar as remuneration is made on a time and material basis, hourly rates, travel expenses and ancillary costs shall be based on tetys' current price list, unless otherwise agreed. Travel times shall not be charged as working hours.
13.2 The fee shall be due after installation of the programs.
13.3 Payments shall be made immediately after invoicing without deduction.
The customer may only dispute invoices for support services within one month of receipt. tetys shall draw the customer's attention to this when issuing the invoice.
13.4 All prices are subject to statutory value added tax.
13.5 The right to use the programs shall be suspended if the customer is in default of payment.
14 Disruptions in the provision of services, delay
14.1 If a cause for which tetys is not responsible, including strike or lockout, impairs compliance with the deadline, tetys may demand a reasonable postponement of the deadlines. If the expenditure increases due to a cause for which the customer is responsible, tetys may also demand compensation for its own additional expenditure.
14.2 If tetys is in default for more than 30 days, the customer may demand a contractual penalty of 0.5% of the value of the services that cannot be used for their intended purpose for each additional week from this point in time, but no more than 5% of the order value.
15 Remote support
15.1 The customer shall enable tetys to provide remote support (remote diagnosis and corrections, transfer of new versions) insofar as this is technically feasible. In coordination with tetys, the customer shall provide a connection to a telecommunications network at its own expense so that the systems of both parties can be linked together. The customer shall bear the line costs incurred.
15.2 Login to the customer's system on the part of tetys shall be by means of a user profile/password controlled by the customer. For reasons of data protection, the customer shall release the line. tetys shall inform the customer of the measures taken.
15.3 If the customer does not enable remote support, it shall reimburse tetys for the additional expenditure caused by this, in any case travel times and additional costs for the rectification of defects or errors.
15.4 If data is transferred to tetys for the purpose of searching for faults/defects or restoration, tetys shall comply with all technical and organizational measures in its own area which the customer must take for its part in accordance with § 9 of the Federal Data Protection Act. Details shall be agreed separately at the customer's request.
16 Agreements to remedy defects
16.1 If defects occur when using the programs in accordance with the contract, the customer must report these in a comprehensible form, stating the information useful for identifying the defect, in writing at the request of tetys.
The prerequisite for claims against tetys is that the defect can be shown to be reproducible.
The customer must support tetys within the scope of what is reasonable in the elimination of defects, in particular to make machine time available at the request of tetys and to import corrective measures or replacement deliveries provided by tetys.
16.2 tetys shall remedy defects at its own discretion by rectification or by replacement delivery within a reasonable period (subsequent performance). In the case of defects that seriously impair the use of a program, tetys shall, if necessary, provide a workaround solution before the final subsequent performance, so that the defect no longer has a serious effect. tetys need only remedy other defects at the time at which tetys plans to do so within the framework of proper version maintenance.
tetys shall also provide workaround solutions for such defects, insofar as this is reasonable for tetys (in the case of software which is expressly marked as such from upstream suppliers, tetys shall only need to do this insofar as tetys is technically able to do so).
16.3 The obligation to rectify defects (subsequent performance) shall lapse for such programs that the customer modifies or otherwise interferes with, unless the customer proves in connection with the notification of defects that the interference is not the cause of the defect.
17 Liability of tetys
The statutory provisions apply with the following proviso:
17.1 The rectification of defects (subsequent performance) is governed by § 16.
17.2 Claims for damages, including claims for wasted expenditure - irrespective of the legal grounds - against tetys (including its vicarious agents), which presuppose slight negligence, shall only exist if an essential contractual obligation/cardinal obligation has been breached.
In this case, claims for damages shall be limited to the higher of EURO 20,000.00 or the order value (excluding VAT); liability for loss of profit shall be excluded. In the event of breaches of obligations under the maintenance agreement, claims for damages shall be limited per claim to the lump sum payable in the year in which the individual claim arises. The customer may demand further liability upon conclusion of the contract against payment of a risk surcharge.
The limitations shall not apply if the damage is covered by tetys' business liability insurance and the insurer pays. tetys undertakes to maintain the cover existing at the time of conclusion of the contract.
Claims for bodily injury and property damage under product liability law shall remain unaffected.
17.3 The limitation period for claims due to defects ("warranty period") is 12 months. It begins with the installation, if tetys carries this out, otherwise one month after delivery. If the scope of the right of use is extended (§ 2.2), this shall not lead to a new limitation period.
18 Confidentiality
18.1 tetys undertakes to use all knowledge of trade and business secrets and of information designated in writing as confidential within the framework of the contractual relationship only for the performance of the contract and to treat it confidentially for an unlimited period of time.
18.2 The obligation of confidential treatment shall not apply to ideas, concepts, know-how and techniques relating to program creation, or to data which is already known to tetys or which was or becomes known to tetys outside this contract.
18.3 tetys shall oblige its employees to maintain confidentiality.
18.4 tetys may include the name of the customer in a reference list. All other advertising references to the customer shall be agreed with the customer in advance.
19 Written form, place of jurisdiction, applicable law, severability clause
19.1 The contract and its amendments must be made in writing.
19.2 German law shall apply exclusively, to the exclusion of the EGBGB and the UN Convention on Contracts for the International Sale of Goods.
19.3 The place of jurisdiction for all present and future claims arising from the business relationship, including claims arising from bills of exchange and checks, shall be the registered office of the defendant party in relation to merchants. Notwithstanding this, the place of jurisdiction shall be Aachen if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is brought.
19.4 Should individual provisions of the contractual agreements or these terms and conditions be or become invalid or should a loophole be discovered, this shall not affect the legal validity of the remaining provisions. In this case, the parties undertake to agree on an objectively and economically equivalent provision with permissible content. The parties also undertake to make any necessary amendments to the contract in immediate cooperation.
20 Additional conditions for hardware
In all cases in which "hardware" is the subject matter of the contract, the "Additional Terms and Conditions for Hardware Deliveries of tetys GmbH & Co. KG" shall also apply.
Status: 01.01.2021
tetys GmbH & Co. KG