Terms and conditions

Terms and Conditions for Software Services of tetys GmbH & Co. KG

I. Provision of Application Programmes (Standard) and Project Implementation

1 Supply of Standard Programmes

1.1 The characteristics of the programmes are set out in the relevant product description and, in addition, in the user documentation. Provisions of German law or similarly binding requirements applicable to the programmes shall be complied with.

1.2 The programmes shall be supplied in executable form (as object programmes) together with user documentation.

Where tetys’ programmes contain interfaces to programmes not supplied by tetys, tetys is obliged to provide the customer with the necessary information regarding these interfaces in return for payment of the costs incurred in supplying such information. The customer may disclose this information to other contractors if necessary.

1.3 The programmes shall be supplied on data carriers which identify their owner as the authorised user. Ownership of the data carriers shall not pass to the customer until the licence fee has been paid in full.

2 Right of Use

2.1 tetys grants the customer the right to use the purchased programmes for their own purposes to the extent specified in the contract.

2.2 The amount of the licence fee is based on the agreed scope of use. The customer may increase the agreed scope of use by paying the surcharge specified for this purpose in tetys’ then-current price list.

2.3 The Customer shall use the programmes on configurations approved by tetys. The Customer shall notify tetys if they wish to change the configuration.

2.4 The customer may resell the right of use for each programme in executable form (object programmes, not source programmes) to another user, provided that the customer ceases to use the programme and the other party, prior to receiving the programme, undertakes in writing to tetys to protect the programme and acknowledges the agreed scope of the right of use for the programme.

3 Implementation

3.1 tetys shall install the programmes and provide a brief induction. The Customer shall confirm receipt of the programmes in writing.

3.2 tetys is prepared to assist the Customer with the commissioning of the programmes. Unless otherwise agreed, all support services (in particular installation, preparation for deployment and demonstration of operational readiness, induction, training or consultancy) shall be remunerated on a time-and-materials basis.

3.3 The customer shall test the programmes under their own operating conditions before putting them into production.

3.4 Each contracting party shall appoint a project manager. These project managers may take decisions or ensure that decisions are taken without delay. The tetys project manager shall record decisions in writing. The customer’s project manager shall be available to tetys to provide any necessary information. tetys is obliged to involve the customer’s project manager where the performance of the contract so requires.

3.5 The customer shall ensure that competent operating personnel are available by the time of installation at the latest. For each programme, at least one member of staff must be trained on a course.

4 The Customer’s Obligations Regarding Programme Protection

4.1 The Customer acknowledges that the programmes, together with the user documentation and other supporting documents – including future versions – are protected by copyright and constitute trade secrets of tetys and the respective manufacturer. The Customer shall take precautions to ensure that these are protected against unauthorised use.

4.2 The customer may only produce copies for backup purposes as replacements. The customer may reproduce the user documentation for authorised use.

II. Customised Programming

5 Subject Matter

5.1 tetys grants the Customer the same right of use in respect of customised programming as it does in respect of the standard programmes provided, to which such customised programming belongs.

5.2 Customised programming is supplied only in executable form.

5.3 User documentation shall be supplied as a supplement to the user documentation for the standard programme.

6 Implementation

6.1 Where it is necessary to specify the customer’s requirements set out in the contract or any additional requirements (§ 7.1) in detail, tetys shall do so with the customer’s assistance, draw up a detailed concept and submit it to the customer for approval. The customer shall provide written feedback within 14 days. Unless otherwise agreed, this service shall be remunerated on a time-and-materials basis.

6.2 The approved detailed concept shall constitute a binding specification for the programming to be carried out. If necessary, tetys shall refine it in consultation with the customer during the course of the programming work.

6.3 In all other respects, § 3 shall apply mutatis mutandis.

7 Changes to requirements

7.1 Should the client wish to amend their requirements (including additions), tetys is obliged to agree to this, provided that this is reasonable for tetys. Insofar as the implementation of a requested change affects the contract, tetys may demand a reasonable amendment to the contract, in particular an increase in remuneration and/or a postponement of deadlines.

7.2 Agreements regarding changes to requirements and amendments to the contract must be in writing. If the customer expresses a request for a change verbally, tetys may require the customer to set this out in writing, or may confirm it in writing itself. In the latter case, tetys’s wording shall be binding unless the customer objects to it without delay.

7.3 tetys shall assert the request for amendment of the contract without delay. The customer shall object without delay if they do not agree with the requested amendments.

III. Programme Maintenance

8 Scope

8.1 Maintenance comprises, in return for a flat-rate fee, the provision of versions of the standard programmes further developed by tetys, the rectification of programme errors (beyond the obligations under the licence agreement) and telephone support regarding questions on the use of the programmes. Maintenance shall be provided from the time the programmes are installed.

8.2 tetys shall provide telephone support during tetys’ normal business hours, and only to those employees of the customer who have been designated by tetys as system administrators and have been trained accordingly.

8.3 All other services shall be remunerated separately.

8.4 This maintenance agreement may be terminated in writing, but only in its entirety, subject to three months’ notice to the end of a calendar year, but no earlier than the end of any agreed minimum term.

Upon termination of the maintenance agreement, the customer shall have no entitlement to the rectification of faults.

9 Fault rectification as an agreed service

9.1 Programme faults are deviations from the characteristics which the programmes are intended to have, in accordance with tetys’ specifications for the current version, or which they must possess for their normal use.

9.2 The obligation to rectify faults as an agreed service and to provide telephone support relates to the latest standard version of the programmes released by tetys as part of further development in accordance with Clause 10. This obligation continues for the previous version for a period of twelve months following the release of the latest version. It shall also continue for as long as it is unreasonable to expect the Customer to adopt the latest version, provided that tetys is able to provide these services; tetys shall be entitled to remuneration for the additional expenditure incurred (including that arising from the provision of the maintenance environment required for this purpose).

9.3 Section 16 shall apply mutatis mutandis to the performance of bug fixing as an agreed service.

10 Further development of the standard programmes to be maintained

10.1 tetys undertakes to provide, upon approval, further developed standard versions—including the associated documentation—stored on data media. This does not apply to extensions which tetys offers separately as new programmes. The customer shall test further developed versions before putting them into production.

10.2 If a manufacturer of the system software required to run the programmes, for which it provides maintenance, releases an updated version of the system software, tetys shall, upon its availability, verify whether it interacts properly with the programmes to be maintained by tetys and, if so, approve it (see Clause 2.3). Otherwise, tetys is obliged to adapt the programmes subject to maintenance to the updated version of the system software within a reasonable period. The reasonable period shall commence upon its release and availability to tetys.

10.3 In the case of 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 applies: 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 programmes to it, taking into account the needs of the user base. If tetys does so, tetys will only continue to develop the programmes on this basis (see also § 10.4(2)).

10.4 The customer shall ensure that its IT infrastructure, in particular its system software, is always at the technical standard required by the programmes to be maintained as part of further development in accordance with § 10.2 and § 10.3. A new version of the programmes may require the customer to acquire and implement a new version of the system software and new hardware. tetys shall inform the customer in good time of the date from which the relevant technical standard must be provided for the maintenance services.

However, the customer is entitled to use a single generation of the system software for at least three years, unless otherwise agreed. Where necessary, tetys shall continue to develop its own programmes on this basis until this period has elapsed. However, tetys is only required to do so to the extent necessary to ensure that the programmes remain operational. This period shall be calculated from the date of release of the relevant generation by its manufacturer. If tetys is required to develop a compatible version of its own programmes for their use, the period shall be calculated only from the date of release of the compatible version.

The customer may only introduce a new version of the system software once tetys has approved the programmes for this version (see § 2.3).

The customer shall inform tetys in advance if they intend to install a new version of the required system software.

10.5. Clauses 10.2 to 10.4 shall apply mutatis mutandis to other third-party programmes with which tetys’ programmes are intended to interoperate. Clauses 10.3 and 10.4 shall also apply to third-party programmes that are freeware or in the public domain (e.g. Linux).

10.6 tetys undertakes to continue developing the current version should changes to statutory provisions or other government regulations relevant to the programmes so require.

The maintenance fee does not cover the incorporation of changes that can only be implemented through substantial or complete reprogramming of the programmes concerned, nor does it cover new provisions or regulations. In such cases, 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 one, tetys shall provide migration support to the extent that this is reasonable in terms of the effort required of tetys. In the case of programmes from upstream suppliers, tetys is only obliged to pass on the conversion support provided by the upstream supplier.

11 Maintenance fee in accordance with the maintenance contract

11.1 The flat-rate monthly fee is calculated in accordance with the agreed scope of use (Clause 2.2). It will be adjusted as soon as this scope increases.

11.2 The flat-rate fee is payable in advance on a calendar-year basis.

11.3 tetys is entitled, with effect from the following calendar year, to charge the fee that tetys charges when concluding new support contracts in accordance with the price list. Increases must be given three months’ notice. tetys is obliged to pass on any reductions without notice.

12 Maintenance of customised programming

12.1 As long as a maintenance agreement for standard programmes remains in force, tetys shall also maintain the associated customised programming in return for payment based on the time and effort involved. Defects shall be rectified free of charge during the limitation period for claims arising from defects (‘warranty period’) under the development contract.

12.2 Where maintenance is agreed against a flat-rate fee, the following shall apply: Maintenance services shall be provided in the same manner as for standard programmes. The flat-rate fee also covers the transfer of customised programming to further developed versions of the standard programmes. The customer may terminate the maintenance service in accordance with Clause 8.4, independently of the termination of the standard programmes.

IV. General Terms and Conditions

13 Remuneration, Payments

13.1 Travel expenses shall be reimbursed separately. Where remuneration is based on actual expenditure, hourly rates, travel expenses and ancillary costs shall be determined in accordance with tetys’ current price list, unless otherwise agreed. Travel time shall not be counted as working time.

13.2 The licence fee is due upon installation of the programmes.

13.3 Payments are to be made immediately upon invoicing, without any deductions.

The customer may only dispute invoices for support services within one month of receipt. tetys will draw the customer’s attention to this when issuing the invoice.

13.4 All prices are exclusive of statutory value added tax.

13.5 The right to use the programmes shall be suspended if the customer is in default of payment.

14 Disruptions to the provision of services, delay

14.1 Where a cause beyond tetys’s control, including a strike or lock-out, impedes adherence to deadlines, tetys may demand a reasonable postponement of the deadlines. If the workload increases due to a cause within the customer’s sphere of responsibility, 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, from that point onwards, claim a contractual penalty of 0.5 per cent of the value of those services which cannot be put to proper use for each subsequent week, up to a maximum of 5 per cent of the contract value.

15 Remote Support

15.1 The customer shall enable tetys to provide remote support (remote diagnosis and corrections, installation of new versions), insofar as this is technically feasible. To this end, the customer shall, in consultation with tetys, provide a connection to a telecommunications network at its own expense, so that the systems of both parties can be linked. The Customer shall bear any line charges incurred.

15.2 tetys shall log in to the Customer’s system using a user profile and password controlled by the Customer. For data protection reasons, the Customer shall authorise access. tetys shall inform the Customer of the measures carried out.

15.3 If the Customer does not permit remote support, they shall reimburse tetys for the additional costs incurred as a result, including, in any event, travel time and additional costs for rectifying faults or errors.

15.4 Where data is transferred to tetys for the purpose of identifying faults or defects or for restoration, tetys shall comply with all technical and organisational measures within its own sphere of control which the customer is required to implement in accordance with Section 9 of the Federal Data Protection Act. Details shall be agreed separately at the customer’s request.

16 Agreements on the rectification of defects

16.1 If defects arise whilst the programmes are being used in accordance with the contract, the customer must report these in a clear and comprehensible manner, providing the information necessary for the identification of the defect, and in writing at tetys’s request.

A prerequisite for any claims against tetys is that the defect can be demonstrated in a reproducible manner.

The customer shall, within reasonable limits, assist tetys in rectifying defects, in particular by making machine time available at tetys’s request and by implementing corrective measures or replacement deliveries provided by tetys.

16.2 tetys shall, at its discretion, rectify defects by repair or replacement within a reasonable period (subsequent performance). In the case of defects that seriously impair the use of a programme, tetys shall, where necessary, provide a workaround prior to final subsequent performance, so that the defect no longer has a serious impact. tetys is only required to rectify other defects at the time at which tetys schedules this as part of proper version maintenance.

tetys shall also provide workarounds for such defects, insofar as this is reasonable for tetys (in the case of software expressly identified as such by upstream suppliers, tetys is only required to do so insofar as tetys is technically capable of doing so).

16.3 The obligation to rectify defects (subsequent performance) shall lapse in respect of any programmes which the Customer modifies or otherwise interferes with, unless the Customer demonstrates, in connection with the notification of the defect, that such interference was not the cause of the defect.

17 Liability of tetys

The statutory provisions shall apply, subject to the following:

17.1 tetys shall be liable to the customer for any damage arising in connection with software maintenance only in accordance with the following provisions. In all other respects, liability is excluded.

17.2 tetys shall have unlimited liability

1. in the event of wilful misconduct or gross negligence;

2. within the scope of a guarantee expressly assumed by tetys;

3. for injury to life, limb or health;

4. for a breach of a fundamental contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely (‘cardinal obligation’), but limited to the damage reasonably foreseeable at the time the contract was concluded;

5. under the Product Liability Act.

17.3 In cases of simple (minor) negligence, tetys shall not be liable for indirect or unforeseeable damage, nor for consequential damage (in particular, not for pure financial loss, loss of profit, reduction in goodwill and similar damage). Furthermore, in such cases, tetys’s liability shall be limited to a maximum of the amount corresponding to the remuneration for care services for one contractual year under this contract. The claims referred to in this paragraph 3 shall be time-barred within one year.

17.4 These liability provisions shall also apply mutatis mutandis to the conduct of, and claims against, employees, legal representatives, vicarious agents and agents of tetys, and any of its subcontractors.

18 Confidentiality

18.1 tetys undertakes to use all knowledge of trade and business secrets and of information designated in writing as confidential, obtained in the course of the contractual relationship, solely for the purpose of performing the contract, and to treat such information as confidential for an indefinite period.

18.2 The obligation of confidentiality shall not apply to ideas, concepts, know-how and techniques relating to software development, nor to data which is already known to tetys or which was known or becomes known outside the scope of this contract.

18.3 tetys shall require its employees to maintain confidentiality.

18.4 tetys may include the customer’s name in a list of references. Any other promotional references to the customer shall be agreed with the customer in advance.

19 Written Form, Jurisdiction, Governing Law, Severability Clause

19.1 The contract and any amendments thereto must be in writing.

19.2 German law shall apply exclusively, to the exclusion of the Introductory Act to the German Civil Code (EGBGB) and the UN Convention on Contracts for the International Sale of Goods.

19.3 For all present and future claims arising from the business relationship, including claims relating to bills of exchange and cheques, the place of jurisdiction in relation to merchants shall be the registered office of the defendant. Notwithstanding the foregoing, the place of jurisdiction shall be Aachen if the customer has no general place of jurisdiction in Germany, moves their place of residence or habitual abode outside Germany after the conclusion of the contract, or if their place of residence or habitual abode is unknown 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 in the provisions be discovered, this shall not affect the legal validity of the remaining provisions. In such a case, the parties undertake to agree on a provision that is functionally and economically equivalent and of permissible content. The parties also undertake to make any necessary amendments to the contract without delay, acting in concert.

20 Supplementary Terms and Conditions for Hardware

In all cases where ‘hardware’ is the subject matter of the contract, the ‘Supplementary Terms and Conditions for Hardware Deliveries by tetys GmbH & Co. KG’ shall also apply.

Date: 1 January 2022