General Terms and Conditions of Advancis Software & Services GmbH

Status 08/2023

1. Subject Matter

1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) govern the purchase of computer programs and other work and services (hereinafter referred to as “Contract Services”) of Advancis Software & Services GmbH (hereinafter referred to as “ADVANCIS”) by CUSTOMER.

1.2 The contract between ADVANCIS and CUSTOMER under the terms these GTC shall be concluded by ADVANCIS making a written offer for the Contract Services and CUSTOMER accepting the offer in writing, or CUSTOMER placing a written order for the Contract Services and ADVANCIS accepting the order in writing. The contract and these GTC may only be amended or supplemented by written declarations of both Parties.

1.3 Written quotations and orders take precedence over these GTC. ADVANCIS does not accept any terms and conditions of CUSTOMER, regardless of whether they are included in an order placed by CUSTOMER or are otherwise made known to ADVANCIS.

1.4 If CUSTOMER acquires computer programs from a third party such as an authorized partner of ADVANCIS, or if this third party provides work and services, CUSTOMER shall be entitled to contractual claims exclusively against this third party and not against ADVANCIS.

 

2. Software

2.1 The following provisions apply when ADVANCIS provides CUSTOMER with Contract Software.

2.2 ADVANCIS shall provide CUSTOMER with the Contract Software in object code and the associated documentation by providing a download and a license file or a license key. CUSTOMER shall not receive the Contract Software in source code.

2.3 The Parties shall agree upon conclusion of the contract whether CUSTOMER shall receive a right to use the Contract Software for an unlimited period of time in return for a one-time payment (perpetual license) or a right of use for a limited period of time in return for multiple payments (subscription license).

2.4 Upon conclusion of the contract, the Parties agree on the period of time and the conditions under which ADVANCIS will provide CUSTOMER with patches, updates, upgrades and support for the current version of the Contract Software.

 

3. Work

3.1 The following provisions apply when ADVANCIS performs work for CUSTOMER.

3.2 Upon conclusion of the contract, the Parties shall agree on the work to be performed by ADVANCIS. These works may be, in particular, the development and adaptation of computer programs in accordance with CUSTOMER’s requirements. The specifications and (additional) functions as well as the required programming steps and milestones shall be described. Furthermore, the expected delivery time and the corresponding remuneration shall be estimated, and it shall be agreed whether CUSTOMER may use the computer program for a limited or unlimited period of time.

3.3 CUSTOMER shall provide ADVANCIS with the information, specifications and data required for the performance of the work and shall be responsible for their accuracy and completeness. If ADVANCIS recognizes that this information, specifications and data are incomplete, incorrect or not executable, it shall inform CUSTOMER and the Parties shall take this circumstance into account in the performance of the work.

3.4 If ADVANCIS determines that the work cannot be performed as agreed or that the estimated delivery time is exceeded, the Parties may adjust the scope and content of the work by mutual agreement.

3.5 CUSTOMER shall accept the completed work by means of a declaration of acceptance within a reasonable period after notification of completion of the (partial) work. Acceptance shall be deemed to have taken place if CUSTOMER makes productive use of the (partial) work in accordance with the contract or does not notify ADVANCIS of any material defects within a reasonable acceptance period set by ADVANCIS.

 

4. Services

4.1 The following provisions apply when ADVANCIS provides services to CUSTOMER.

4.2 ADVANCIS provides the services under its own responsibility, at its own dutiful discretion and independently of CUSTOMER. ADVANCIS provides the services with due care and according to the state of the art. It does not owe any result or success of the services.

4.3 ADVANCIS provides services Monday through Friday, eight (8) hours daily between the hours of 08:00 and 18:00, not including public holidays in Frankfurt am Main, Germany. Services are recorded and invoiced on a 0.5 hour basis. A twenty-five percent (25%) surcharge will apply for services between 18:00 and 08:00. Services on Saturday will be charged a fifty percent (50%) surcharge. A surcharge of one hundred percent (100%) will be charged for services on Sunday or public holidays in Frankfurt am Main. Travel costs and expenses of ADVANCIS will be passed on to CUSTOMER.

4.4 If the Parties agree on a specific date for the services, CUSTOMER may cancel free of charge up to fourteen (14) days before the date. Cancellations up to seven (7) days before the date shall be charged at sixty percent (60%) and later cancellations at ninety percent (90%) of the remuneration. This shall apply accordingly if an agreed appointment is not carried out for reasons for which CUSTOMER is responsible. Other expenses and costs of ADVANCIS shall be reimbursed by CUSTOMER according to expenditure.

 

5. Provision of the Contract Services

5.1 Dates and deadlines for the performance of the Contract Services are generally non-binding and only binding if the Parties expressly agree in writing.

5.2 ADVANCIS may use subcontractors and affiliates to perform the Contract Services.

5.3 The Parties shall have the statutory rights to rescind or terminate the contract, in particular to terminate the contract without notice for good cause. Rescission and termination must be declared in writing.

5.4 Certain standards, norms, guidelines, certificates, testing and approval procedures need only be observed in the Contract Services if the Parties expressly agree in writing.

5.5 The Parties may separately agree in writing on changes to Contract Services and provisions after conclusion of the contract.

 

6. Right to Use the Contract Services

6.1 ADVANCIS and its licensors have the exclusive rights to use the Contract Services and grant CUSTOMER the non-exclusive right of use against remuneration.

6.2 The following provisions apply if CUSTOMER is an end user and acquires the Contract Software for its own use and purposes.

  • 6.2.1 CUSTOMER may use the Contract Software in its IT systems, locations and premises, in particular install and copy it permanently or temporarily and display and operate it. If the Parties specify certain IT systems, locations and premises, CUSTOMER may use the Contract Software otherwise only with ADVANCIS’ prior written consent.
  • 6.2.2 The right of use is bound to CUSTOMER and may not be transferred or sublicensed to third parties without ADVANCIS’ prior written consent. CUSTOMER may not distribute, make publicly available, lease or otherwise enable third parties to use the Contract Software and other Contract Services. Affiliated companies of CUSTOMER may only use Contract Software and other Contract Services if the Parties expressly agree to this in writing.

6.3 The following provisions apply if CUSTOMER is a reseller and acquires the Contract Software to distribute it to an end user for its own use and purposes.

  • 6.3.1 CUSTOMER may transfer the right to use the Contract Software to the end user pursuant to Section 6.2.1. In doing so, the restrictions pursuant to Section 6.2.2 shall apply accordingly to the end user and CUSTOMER may only transfer the right of use to the extent it has previously acquired this right of use from ADVANCIS. CUSTOMER must inform ADVANCIS to which end users it distributes the Contract Software.
  • 6.3.2 After the transfer of the right of use to the end user, CUSTOMER may not use the Contract Software purchased by itself.
  • 6.3.3 The transfer of the right of use from CUSTOMER to the end user does not create a contractual relationship between ADVANCIS and the end user.

6.4 CUSTOMER is entitled to make a backup copy of the Contract Software and other Contract Services.

6.5 In addition to the aforementioned right of use, CUSTOMER shall only be entitled to copy, rework, decompile, distribute and reproduce Contract Software and other Contract Services if this is expressly permitted by law. Other uses are not permitted to CUSTOMER.

6.6 If ADVANCIS provides CUSTOMER with patches, updates or upgrades to the Contract Software, CUSTOMER shall have the same rights thereto as to the Contract Software. CUSTOMER shall only be entitled to use a patch, update and upgrade if it has a right to use the Contract Software. Patches, updates and upgrades do not give CUSTOMER any additional or extended right to use the Contract Software.

6.7 The granting of the right of use is subject to the condition precedent that CUSTOMER pays the agreed remuneration to ADVANCIS in full.

6.8 If ADVANCIS provides CUSTOMER with software of a third party as part of the Contract Services, CUSTOMER’s right of use shall be governed exclusively by the license terms of such third party. Upon request, ADVANCIS shall inform CUSTOMER which third party software is included in the Contract Services and provide CUSTOMER with access to the license terms. This applies accordingly to open-source software.

6.9 If CUSTOMER copies, distributes or makes publicly available the Contract Software without the required right of use, it must acquire this right of use from ADVANCIS. Further claims of ADVANCIS remain reserved.

 

7. Obligations of CUSTOMER

7.1 CUSTOMER is obliged to support ADVANCIS in the provision of the Contract Services to a reasonable extent, on its own responsibility and at its own expense. CUSTOMER shall appoint competent employees as contact persons for the performance of the Contract Services. The Parties may contractually agree on special duties to cooperate.

7.2 CUSTOMER must procure and operate the hardware, software, networks, system environments, test systems and other IT systems required to perform the Contract Services in accordance with the system specifications made by ADVANCIS at its own expense and under its own responsibility.

7.3 CUSTOMER shall provide ADVANCIS with data, information, means of communication as well as access to IT systems, premises and infrastructure to the extent necessary for the performance of the Contract Services.

7.4 CUSTOMER shall back up its data in accordance with the state of the art and ensure that its data can be reproduced with reasonable effort from a data stock kept in machine-readable format. CUSTOMER shall take reasonable precautions to maintain its business operations in the event that defects or malfunctions of the Contract Services impair the use of the IT systems, premises and infrastructure.

7.5 CUSTOMER shall test the Contract Services prior to productive use, in particular with regard to their suitability for the use intended by CUSTOMER. CUSTOMER must install and use patches, updates and upgrades provided by ADVANCIS during the use of the Contract Services. CUSTOMER must install an update at least once within twelve (12) months in order to be able to use the Contract Services.

7.6 CUSTOMER shall secure the Contract Services against access by unauthorized third parties to an appropriate extent and in accordance with the state of the art. CUSTOMER must protect the license files and keys provided by ADVANCIS from unauthorized access and inform ADVANCIS immediately if unauthorized third parties have access.

7.7 CUSTOMER is responsible for complying with the regulatory, professional and other legal requirements applicable to it when using the Contract Services.

7.8 CUSTOMER’s cooperation is a prerequisite for the provision of the Contract Services. If CUSTOMER fails to perform a required act of cooperation in a timely, complete and defect-free manner, any resulting damages, costs and delays shall be borne by CUSTOMER. ADVANCIS may, at its own discretion, offer CUSTOMER assistance or self-performance or set a reasonable deadline for cooperation and terminate the contract after the deadline has expired.

 

8. Remuneration

8.1 The remuneration for the Contract Services shall be contractually agreed by the Parties. The remuneration may be payable non-recurring or recurring (for example, on an ongoing daily, monthly, annual basis), on a time basis or at a fixed price. Unless otherwise agreed by the Parties, computer programs shall be invoiced upon transfer, and work and services shall be invoiced at the end of each calendar month.

8.2 All ADVANCIS price quotations are net amounts plus the applicable sales tax.

8.3 In the event of billing on a time basis, ADVANCIS shall provide CUSTOMER with a written time record describing the Contract Services rendered.

8.4 Invoices are payable within fourteen (14) calendar days of receipt. In the event of late payment, ADVANCIS shall be entitled to statutory interest, reminder charges and compensation for the damages caused by delay and may make further Contract Services conditional upon payment, or demand advance payment.

8.5 If the remuneration is payable on a recurring basis, the remuneration shall be adjusted at the first and each subsequent renewal of the contract term in an appropriate amount to the percentage by which the Consumer Price Index of the German Federal Statistical Office has changed between the beginning and the end of the previous contract term. In the event of renewals and extensions of existing contracts, the provisions therein shall take precedence over the provision in this clause, unless the Parties agree otherwise in the offer and the order.

 

9. Performance Defects

9.1 ADVANCIS shall provide CUSTOMER with the Contract Software and perform the work free of defects.

9.2 Claims for defects do not exist in the case of an insignificant deviation from the agreed or assumed quality and an insignificant impairment of use.

9.3 ADVANCIS shall not be responsible for defects caused by the Contract Software (1) not being installed and used as agreed and intended, (2) being used under conditions, for uses or in IT systems for which it is not suitable and intended, (3) not being used in accordance with the given system specifications, or (4) being modified without the consent of ADVANCIS. Further, ADVANCIS shall not be responsible if CUSTOMER fails to install patches, updates and upgrades to the Contract Software to rectify defects.

9.4 CUSTOMER must report faults and defects to ADVANCIS without delay, providing the information known and relevant to the purpose. For this purpose, CUSTOMER shall use the communication services provided by ADVANCIS. The report must be made by a competent employee of CUSTOMER who can describe malfunctions and defects and assist ADVANCIS in rectifying them.

9.5 CUSTOMER must assist ADVANCIS in the investigation, reproduction and rectification of a defect. For this purpose, it must grant ADVANCIS remote or physical access to the IT system and provide the necessary information, data and passwords. If ADVANCIS determines during the investigation that the defect is possibly caused by other components in CUSTOMER’s IT systems, CUSTOMER shall, at its own expense, conduct an analysis of the IT systems itself or through a third party.

9.6 To rectify a significant defect, ADVANCIS may choose between rectification, replacement delivery or substitute performance such as provision of a patch, updates or upgrades, a workaround or appropriate instructions to CUSTOMER. If CUSTOMER has set ADVANCIS another reasonable grace period to rectify the significant defect after a grace period has expired without result, and this grace period has also expired without result, or if a reasonable number of attempts to rectify the defect, deliver a replacement or provide a subsequent service have been unsuccessful, CUSTOMER may reduce the remuneration and claim damages or reimbursement of expenses. CUSTOMER is not entitled to rectify the defect itself or have it remedied by third parties at the expense of ADVANCIS.

9.7 CUSTOMER’s claims for defects shall become time-barred within one (1) year and shall be subject to the limitations of liability of these GTC. If CUSTOMER is a consumer, the claims for defects shall become statute-barred within two (2) years. The provision of a patch, updates or upgrades as well as other services for rectification, replacement delivery and substitute performance shall not trigger a new warranty and limitation period.

9.8 If CUSTOMER complains about a defect that does not actually exist or for which ADVANCIS is not responsible, CUSTOMER shall bear the expenses and costs incurred by ADVANCIS in examining and possibly rectifying the defect.

 

10. Indemnification

10.1 The Contract Services are free of property rights of third parties in the area of the European Union and the European Economic Area, or ADVANCIS has the necessary right of use.

10.2 If a third party asserts claims against CUSTOMER due to the infringement of property rights by the Contract Services and if their use is impaired or prohibited as a result, the following provisions shall apply:

  • 10.2.1 ADVANCIS may, at its own expense, either modify or replace the Contract Services in such a way that they do not infringe the property rights, but essentially provide to the agreed functionality and performance, or indemnify CUSTOMER against claims of the property right holder.
  • 10.2.2 If subsequent performance is impossible for ADVANCIS or only possible under disproportionate conditions, ADVANCIS shall have the right to withdraw the Contract Services against reimbursement of the remuneration paid. In doing so, ADVANCIS shall give CUSTOMER an appropriate grace period, unless this is only possible under unreasonable legal or other conditions.

10.3 The Parties shall notify each other without delay of any claims asserted by third parties. In order to avoid any damages, CUSTOMER shall cease using the Contract Services after being requested to do so by ADVANCIS. CUSTOMER shall not acknowledge the alleged infringement of property rights and shall either leave any dispute, including any out-of-court settlements, to ADVANCIS or conduct it only in agreement with ADVANCIS. ADVANCIS shall reimburse CUSTOMER for any necessary defense costs and other damages to the extent that CUSTOMER is entitled to appropriate defense measures and settlement negotiations on legal grounds.

10.4 Insofar as CUSTOMER is responsible for the infringement of property rights, claims against ADVANCIS are excluded.

10.5 CUSTOMER shall indemnify ADVANCIS upon first request against all penalties, costs and claims of third parties arising from the fact that CUSTOMER as well as its affiliated companies, employees, representatives and vicarious agents use the Contract Services in breach of the contract, infringe the rights of third parties or breach applicable law.

 

11. Liability

11.1 ADVANCIS shall be liable without limitation in the event of (1) injury to life, limb or health, (2) warranties, (3) intent and gross negligence and (4) under the Product Liability Act.

11.2 In the event of negligence, ADVANCIS’ liability is limited to the typically foreseeable damages without loss of profit. In case of slight negligence, ADVANCIS shall only be liable if it has breached a material contractual obligation that CUSTOMER can rely on being fulfilled. This liability is limited for all damages in total to the contractual remuneration. ADVANCIS shall not be liable for the slightly negligent breach of other obligations.

11.3 Any further liability of ADVANCIS is excluded on the merits.

11.4 Insofar as ADVANCIS’ liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.

 

12. Data Protection and Confidentiality

12.1 The Parties shall comply with the applicable provisions on data protection and shall oblige their employees who have access to personal data to maintain data secrecy. In the event that the data protection-compliant provision and use of the Contract Services require certain declarations, agreements or measures, the Parties shall undertake them.

12.2 The Parties undertake (1) to treat the other Party’s confidential information as strictly confidential, (2) to not disclose or make it available to third parties, (3) to not to publish it, (4) to use it exclusively for the performance of their contractual obligations and (5) to not exploit it in any other way. Furthermore, the Parties undertake to take appropriate precautions to protect the other Party’s confidential information, at least those precautions with which they protect their own confidential information.

12.3 Confidential information is – irrespective of its designation as confidential – all information made available to the respective other Party orally, in writing, online or on data carriers or otherwise coming to the knowledge of the other Party, in particular all financial, technical, economic, legal, tax-related, business, product, employee and management-related information. If confidential information does not meet the requirements of a trade secret within the meaning of the German Trade Secrets Act, such information shall nevertheless be protected by these GTC.

12.4 The obligation of confidentiality shall not apply to such information for which the other Party proves that it (1) was known to it prior to the time it became available to this Party, (2) was made available to it by an authorized third party for the purpose of free use and without an obligation of confidentiality prior to or after the time it became available to this Party, (3) was known or generally available to the public prior to the time it was made available to this Party, or (4) became known or generally available to the public without a breach of this confidentiality agreement at or after the time it became available to this Party.

 

13. Force Majeure

13.1 Neither Party shall be obligated to fulfill its contract obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be considered as force majeure: (1) Accidents, disasters, pandemics and catastrophes for which the Party is not responsible, as well as war, blockades and embargoes, (2) labor disputes lasting more than four (4) weeks, as well as (3) general malfunctions of telecommunications and the Internet.

13.2 Each Party must immediately notify the other in writing of the occurrence of a case of force majeure.

 

14. General Provisions

14.1 If any provision of these GTC is invalid, the statutory provisions shall apply instead. If a provision of a contract concluded under the terms of these GTC is invalid, the provisions of these GTC shall apply instead.

14.2 CUSTOMER shall only be entitled to withhold or offset counterclaims if its claims have been legally established or recognized by ADVANCIS. CUSTOMER may only assign claims arising from these GTC and the contracts concluded under their terms with the prior written consent of ADVANCIS.

14.3 These GTC and the contracts concluded under their terms shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

14.4 The exclusive place of jurisdiction for all legal disputes in connection with these GTC and the contracts concluded under their terms shall be Frankfurt am Main, Germany, provided that CUSTOMER is an entrepreneur, a legal entity under public law or a special fund under public law.