1.1 The present GTC apply to all business dealings of LOMOSOFT GmbH, Obere Grenzstr. 74, 63071 Offenbach, hereinafter referred to as LOMOSOFT, with its customers. The GTC apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 The GTC apply in particular to contracts for the creation and delivery of software, software development, software applications, hardware, and its complementary products and accompanying materials as well as for the provision of all services. These GTC also apply in their current version (available at www.lomosoft.de/agb) to future contracts for supplies and services to the same customer, without LOMOSOFT needing in each individual case to refer again to the GTC.
1.3 These GTC shall apply exclusively. Contrary contract and purchasing terms of the customer will only become integral part of the contract upon express, written consent of LOMOSOFT. This consent requirement applies in all cases, even, for example, if LOMOSOFT conducts delivery to the customer without reservation and in full knowledge of the customer's GTC.
1.4 Legal declarations and notices that are to be issued by the customer to LOMOSOFT after conclusion of the contract (e.g., establishment of deadlines, declaration of defects, notice of rescission or reduction) require, for purposes of evidence, written form.
2.1 Offers by LOMOSOFT are fundamentally non-binding and without obligation. This also applies if LOMOSOFT has delivered catalogs, technical documentation, or other product descriptions or documents - including in electronic form - to the customer. LOMOSOFT retains the right of ownership and copyright to all catalogs, technical documentation, other product descriptions or documents - including in electronic form - delivered to the customer.
2.2 Orders and commissions by the customer are considered as binding contract offers. Orders and commissions must be issued to LOMOSOFT in writing by fax or email. Unless the order or commission states otherwise, LOMOSOFT is entitled to accept the offer of contract within three weeks of its receipt by LOMOSOFT.
2.3 The acceptance may be stated to the customer in writing (such as by fax or by email) or by delivery or performance of service.
3.1 The delivery period will be agreed upon individually. As far as preparation for the implementation of the delivery is necessary on the part of the customer, the delivery period starts only upon completion of these actions.
3.2 If LOMOSOFT is not able to adhere to binding delivery periods due to reasons for which LOMOSOFT is not responsible (non-availability of the service), LOMOSOFT will inform the customer of the same immediately and simultaneously inform him of the prospective new delivery period. If the service is still not available within the new delivery period, LOMOSOFT is entitled to withdraw from the contract in full or in part. LOMOSOFT will immediately compensate any consideration already provided by the customer. In particular, late delivery by the supplier to LOMOSOFT in considered to be a case of non-availability of service in this sense, under the condition that LOMOSOFT has concluded a congruent hedging transaction, or neither LOMOSOFT nor the supplier is at fault.
3.3 The event of delayed delivery by LOMOSOFT is determined in accordance with the legal regulations. In any case, however, a reminder by the customer is required.
As to installations, the customer must meet the following preconditions:
5.1 For software development conducted by LOMOSOFT, the following provisions apply:
5.1.1 Decisive for the services to be performed is the functional specification document (“Pflichtenheft”), which is mutually agreed to be integral part of the contract, or the performance description contained in the proposal. If deadlines are surpassed due to the complexity of the development of the order, any grace periods established by the customer are to be calculated categorically in consideration of the arising technical problems respectively possible delivery difficulties. If desired changes or additions on the part of the customer are to be considered, agreed deadlines are to be postponed according to the extra time required for the same.
5.1.2 Upon delivery of the software development, approval and possible troubleshooting is to take place. After approval, all further claims, in particular claims for damages due to delay of the start-up procedure or downtime, are barred. Claims of proven intent or gross negligence on the part of LOMOSOFT are excepted. An acceptance report shall be prepared which shall be signed by the customer and LOMOSOFT. As a result of acceptance, the customer acknowledges that the delivered equipment/programs correspond to the order. Any defects which exist and are recorded in the acceptance report will be resolved by LOMOSOFT within the scope of the contractual performance obligation according to the framework of the contract. If the customer has not returned a signed copy of the acceptance report within four weeks of the delivery of the software development, the acceptance is considered successful four weeks after delivery of the software development. This does not apply if, before the deadline, the customer claims in writing and with relevant grounds that the delivery has not occurred as agreed.
5.1.3 The customer acknowledges that the delivered software development includes and embodies patents, trademarks, trade secrets, know how and other intellectual property rights and that LOMOSOFT is solely entitled to these rights. The customer expressly acknowledges that these rights are not transferred by the sale or delivery of products to the customer. A right to the marketing of the software development by the customer himself is prohibited. As result of purchase, the customer receives a simple, non-exclusive, non-sublicensable, non-transferable right to use the software development on his business premises for purposes within his professional field. This right of use is limited to the territory of the Federal Republic of Germany.
In particular, the following conditions apply:
18.104.22.168 The software development may only be used on the CPU or, in the case of network versions, on the network on which it was first installed.
22.214.171.124 Changes, enhancements or other interventions of any kind are not permitted.
126.96.36.199 A duplication of the software development and any documents which might be provided is permitted solely for purposes of data protection.
5.1.4 The customer may not make the software development and the provided documents available to any third parties, use the software development of parts thereof for the benefit of third parties or allow third parties to view the documentation.
5.1.5 Other rights to the software development are not transferred to the customer.
5.2 For software modifications conducted by LOMOSOFT software, the provisions of item 5.1 apply accordingly.
6.1 All deliveries occur ex works/warehouse Offenbach, where the place of performance is also located. At the request and expense of the customer, the goods will be sent to another point of destination (sale by dispatch). Unless otherwise agreed, LOMOSOFT is entitled to determine themselves the type of shipment (in particular, transport companies, packing and dispatch route).
6.2 LOMOSOFT is entitled to partial deliveries, which are to be accepted by the customer.
6.3 The risk of accidental loss and accidental deterioration of the goods devolves to the customer latest upon delivery. During sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods devolves upon the shipping agent, the carrier or the other person or establishment designated for conducting the dispatch, even when carriage paid to has been stipulated. If acceptance is agreed, this is decisive for the transfer of risk. The delivery or acceptance have occurred even if the customer is in default of acceptance.
6.4 If the customer is in default of acceptance, if he fails to provide cooperation or if the delivery is delayed due to other reasons caused by the customer, LOMOSOFT is entitled to demand compensation for the resulting damages, including additional expenses (such as storage costs).
7.1 All services, such as concept development, software development, installation, activation, functional testing, consulting, training and software presentations, unless expressly agreed otherwise, will be calculated according to the number of hours actually worked (according to the hourly rate valid at time of execution as stipulated in connection with the closing of the specific contract). For the supply of hardware and software, the price and price lists which were current at the time of the closing of the contract and which have been stipulated in connection with the closing of the specific contract are likewise valid.
7.2 LOMOSOFT will adhere to the stipulated prices for four months after the placement of the order. If longer delivery times and deadlines are stipulated, the respective prices and price lists current on the day of delivery shall be valid, unless LOMOSOFT has expressly agreed to the price in writing.
7.3 All prices are exclusive of VAT. Costs for packaging, shipping and data storage devices, as well as other costs or tolls resulting from dispatch or shipment, will be additional.
7.4 Unless no expressly agreed otherwise, the following terms of payment apply:
7.5 Upon expiry of the above payment period, the customer is in default. According to § 247 of the German Civil Code (“Bürgerliches Gesetzbuch”), interest is to be added to the purchase price during the delay in the amount of eight percentage points above the relevant base interest rate. LOMOSOFT reserves the right to claim further damages caused by delay. In relation to business people, LOMOSOFT's claim to the commercial maturity interest at five percentage points above the relevant base interest rate (§ 353 of the German Commercial Code (“Handelsgesetzbuch”)) remains unaffected.
7.6 Payments are to be made solely and only directly to LOMOSOFT to the account stipulated in the invoice. Representatives are not entitled to receive payments, nor to issue receipts for payments made.
8.1 All goods delivered by LOMOSOFT remain the property of LOMOSOFT until the complete payment of all claims, including those resulting in the future from the business relationship.
8.2 The retention of title also extends to the products resulting from the processing, mixing or combining of the goods delivered by LOMOSOFT, to their full value, whereby LOMOSOFT is considered the manufacturer. If third parties possessing ownership exist in the event of processing, mixing or combining with goods, LOMOSOFT acquires joint ownership thereby in proportion to the invoice value of these processed goods. In all other respects, the same applies for the resulting product as for the goods delivered under retention of title.
8.3 The claims against third parties which result from the secondary purchase of the delivered goods or the objects with which the delivered goods have been processed, mixed or combined will be assigned by the customer to LOMOSOFT in total and/or in the amount of LOMOSOFT's possible share of co-ownership as security. The customer is authorized to collect these for his account until revocation or suspension of his payment to LOMOSOFT. The customer is not authorized to transfer the claim, even not for the purpose of the collection of accounts in the way of factoring, unless the obligation of the factor has been simultaneously established as effecting the consideration in the amount of the portion of the claim immediately to LOMOSOFT, as long as LOMOSOFT has claims against the customer.
8.4 The customer has to inform LOMOSOFT immediately of claims or of access by third parties to the goods belonging to LOMOSOFT. The notification must occur in writing or by fax.
8.5 The exercise of the retention of title does not effect a withdrawal from the contract.
8.6 The products and the claims which substitute for them may, prior to complete payment of the claims by LOMOSOFT, neither be pledged to third parties nor assigned or ceded as security.
8.7 If the value of the collateral exceeds LOMOSOFT's claims by more than 10%, LOMOSOFT will, at the request of the customer, release collateral according to LOMOSOFT's choice to the extent of the excess.
8.8 In case of delayed payment or upon the anticipated suspension of payments on the part of the customer, LOMOSOFT is entitled to collect the conditional goods still possessed by the customer. The customer will allow the persons authorized for the collection of the goods to have access to the business premises during office hours to the extent that it is required to take possession of the conditional goods.
9.1 LOMOSOFT ensures the functionality of the delivered software and hardware as described for the respective delivery. The warranty begins with the date of acceptance or activation of the delivered hardware or software. This shall be subject to compliance with the obligations imposed on the customer when dealing with the software, hardware and databases. The customer is aware that, according to the current state of the art of technology, it is not possible to create software in a way that it is free of defects in all applications and combinations.
9.2 Defects are considered to be only those that rescind or lessen the value or suitability of the delivered hardware or software for the stipulated or normally intended usage. Minor reductions in usability do not constitute a defect. An assurance of a particular suitability or characteristic of the delivered goods requires the express, written statement by LOMOSOFT. The information in brochures, attachments, documentation, manuals and handbooks do not constitute such a statement.
9.3 The customer must examine the goods delivered by LOMOSOFT immediately for defects and quality and to report complaints immediately, but latest within 14 days of delivery, in writing to LOMOSOFT in a way that is understandable and, as the case may be, program-technologically reproducible. Program errors in custom software must be specified and documented such that a substantive review is possible. If defects are identified later, the customer must report his complaint immediately and in writing, but latest within ten days upon knowledge of the defect. Exceeding the deadline releases LOMOSOFT of the obligation to conduct a possible remedy or replacement delivery.
9.4 Reported defects are to be eliminated by LOMOSOFT and will, according to LOMOSOFT's choice, be removed through the installation of an improved software version or through advice to aid in the removal of or in the circumventing of the results of the defect. The customer will provide, at no charge, all documents necessary to diagnose the error as well as the computer system and computer occupation time necessary to remove the defect. For parts or assemblies which, due to poor materials, have been demonstrably delivered insufficiently, replacement will be provided by LOMOSOFT.
9.5 The warranty is void if, without the consent of LOMOSOFT, the customer or a third party has changed the hardware, the software or the system configuration which was set upon installation. For hardware, this applies to the extent that the range of functions established by LOMOSOFT and/or agreed upon between the parties has been changed.
9.6 To the extent that a remedy or replacement delivery has been chosen by LOMOSOFT, the warranty does not include the installation or re-installation of the customer's data or its reproduction. This constitutes a separate service and is to be remunerated separately.
9.7 Regarding the delivered software, it is expressly stated that this is only suited for the purposes stipulated by LOMOSOFT and/or the purposes agreed upon between the parties. Malfunctions which are due to a use of the Software other than that which was intended do not constitute a defect covered under the warranty.
9.8 The customer is obliged to reimburse LOMOSOFT for the expenses incurred in connection with a notice of defects if the defect is not due to any fault of the delivery or services provided by LOMOSOFT.
9.9 The limitation period for material and title defects - subject to the provisions of no. 10 - is twelve months. It starts categorically upon delivery or the first performance of service by LOMOSOFT. If the delivery and service require acceptance, the limitation period begins upon acceptance.
10.1 Liability on the part of LOMOSOFT occurs only when the damage
10.2 If LOMOSOFT becomes liable for the breach of a cardinal obligation, without there being gross negligence, intent or the damage of life, body or health, the amount of liability shall be limited to the damage, the occurrence of which could be typically calculated at the time of the conclusion of the contract according to the circumstances known at the time and which were foreseeable in this sense.
10.3 For data loss, LOMOSOFT is liable (except when resulting from intentional action) only if the customer has conducted system checks and backup of data at regular intervals (at least once a day) and limited to the economically reasonable recovery expenses.
10.4 The liability of LOMOSOFT derived from the product liability law (“Produkthaftungsgesetz”) as well as from the independent promise of guarantee remains unaffected.
10.5 The disclaimers of liability and limitations mentioned above apply to the same extent for the benefit of LOMOSOFTs employees, legal representatives, institutional organs, executive staff, and agents.
The customer is obliged to maintain confidential information regarding internal matters of business and operations which he or his agents may have acquired as a result of the initiation or fulfillment on the contract. This obligation does not apply to information which
12.1 The customer must comply with the applicable data protection regulations. In particular, the customer will only collect, process or use personal data in accordance with the BDSG (Federal Data Protection Act) in the necessary context and will oblige his colleagues, representatives and agents in writing to comply with the data protection regulations.
12.2 The customer is responsible for the legal admissibility, in terms of data protection, of the data processing.
12.3 The customer agrees that his data will be electronically processed and saved by LOMOSOFT within the scope of the contractual relationship. This data will not be passed on to third parties without authorization. Expressly considered to not be unauthorized is the transmission of customer data to a company commissioned by LOMOSOFT for the purpose of contract processing and settlement. The customer is informed that for the transmission of data via the Internet for all participants, according to the current state of the art of technology, it can not be completely ruled out that unauthorized persons acquire access to the transmitted data during the transmission process.
13.1 These GTC are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG United Nations Convention on Contracts for International Sale of Goods of 11th April 1980).
13.2 Exclusive jurisdiction is Frankfurt am Main if the customer is a merchant according to the German Commercial Code, a legal entity under public law or a special fund under public law, or, when filing legal proceedings, has no registered office or habitual residence in the Federal Republic of Germany.
13.3 If any provision of these GTC shall be or become invalid, all other provisions shall remain unaffected thereby.
13.4 For linguistic ambiguities concerning translations of the website and the GTC or in other cases of doubt and problems of interpretation, the German text is considered binding.
LOMOSOFT GmbH, Offenbach, December 2012