Delivery and service conditions
You can download the official general terms and conditions of delivery and service of IFANO GmbH here
General terms and conditions of delivery and service (GTC) of IFANO GmbH
1. General, scope
The following conditions apply to all offers, deliveries and services from purchase, work or service contracts and other contracts including those from future business deals and continuing obligations with companies or legal entities under public law (Section 310 BGB). The effect of any general terms and conditions of the customer is expressly excluded, even if the customer does not expressly object to our terms and conditions or repeatedly refers to his terms and conditions in the context of the contractual relationship. Sections 433 ff. BGB also apply to the delivery of software. For additional services (e.g. training, individual adaptation of the software - customizing), Sections 611 ff. BGB also apply.
2. Offers, order confirmation
2.1. Our offers are subject to change and non-binding, unless the offer is designated as binding in writing. A legal binding is only established through a contract or our written order confirmation, and also through the fact that we begin to provide services in accordance with the contract.
2.2 The customer is bound to declarations for the conclusion of contracts (contract offers) for four weeks.
3. Prices and payments / terms of payment
3.1. The prices agreed upon when the contract was concluded apply.
3.2. The prices are unpacked and ex works IFANO. Travel and delivery costs, expenses, accessories, shipping costs and telecommunications costs are to be reimbursed according to expenditure
3.3. The prices are exclusive of the statutory value added tax. Invoices are payable according to the date specified or, if the date is not specified, within 7 days of the invoice date net cash free paying agent.
3.4. In the case of the delivery / creation of software and training, the remuneration is due after completion of the service / delivery without deduction and payable within 10 days. Additional services requested by the customer (e.g. advice and support with program installation) will be invoiced according to our current prices at the time the contract is concluded.
3.5. The customer can only offset against claims that are undisputed by us or that have been legally established. He can only assign claims from this contract to third parties with our prior written consent. Section 354a of the German Commercial Code remains unaffected. The customer is only entitled to a right of retention or the objection of a non-fulfilled contract within this contractual relationship.
4.1. Information on delivery and service times are non-binding unless we have designated them as binding in writing. We can provide partial services as long as the delivered parts or services are usable for the customer.
4.2. Delivery and service deadlines are extended by the period in which the customer is in default of payment under the contract, as well as by the period in which we are prevented from delivering or performance by circumstances for which we are not responsible, plus one reasonable lead time after the end of the impediment. These circumstances also include force majeure and industrial disputes. Deadlines are also considered to be extended by the period in which the customer does not provide any cooperation in breach of the contract, e.g. does not provide information, does not create access, does not deliver something or does not provide employees. If the contractual partners subsequently agree on other or additional services that affect the agreed deadlines, these deadlines will be extended by an appropriate period.
4.3. If we exceed a binding delivery date and if the customer cannot reasonably be expected to wait further, he can assert further rights after the delay has occurred and a warning has been issued and a reasonable grace period has been set. In this case, a claim for damages by the customer is excluded, unless the delay is due to willful or grossly negligent behavior on the part of us or one of our legal representatives or vicarious agents. If the customer is in default of acceptance, we are entitled, after a grace period to be set by us, to refuse to fulfill the contract and to demand compensation. Instead, we can also dispose of the goods / services elsewhere and deliver them to the customer within a new reasonable period.
4.4. If we send the subject matter of the contract at the customer's request, this is done at the customer's expense and risk. In the case of all deliveries, the risk of loss of the goods is transferred to the customer when they are handed over to the forwarding agent, carrier or other person responsible for carrying out the shipment.
5. Scope of software services
5.1. Unless otherwise agreed, the subject matter is the delivery of software and the granting of usage rights and - if ordered - the training. We provide all deliveries and services according to the current state of the art. Before concluding the contract, the customer checked that the specification of the software corresponds to his wishes and needs. He is familiar with the essential functional features and conditions of the software.
5.2. The contract signed by both parties or our order confirmation is decisive for the scope, type and quality of the deliveries and services. Other information or requirements only become part of the contract if the contracting parties agree to this in writing or if we have confirmed them in writing. Subsequent changes to the scope of services require a written agreement or our written confirmation.
5.3. Product descriptions, representations and test programs are service descriptions, but not guarantees. A guarantee requires a written declaration by our management.
5.4 The customer receives the software consisting of the machine program and the user manual. The technology of delivery of the software is based on the agreements; Unless otherwise agreed, the program and manual are delivered on CD-ROM or USB stick. The customer has no claim to the transfer of the source program.
6. Customer Rights to Software
6.1. We deliver the programs covered by the contract by handing over the program data carrier or, at our option, by granting the option of downloading. If the customer wants us to install it, this is an additional service that can be commissioned as an additional service. This also applies to the introduction to the program. Such is provided by us against a separate order and separate remuneration according to the current hourly rate according to our currently valid price lists plus travel expenses and expenses. If the subject of our service is the delivery of third-party software, the customer is obliged to check the manufacturer's license terms to inform and to observe them. Documentation, especially from third-party providers, is delivered in the manner in which it is made available by the manufacturer. This can also mean extradition in a foreign language. We are not obliged to translate documentation about programs from third-party manufacturers into German.
6.2. The software (program code and user manual), the appearance, structure and organization of the program files, the program names, logos and other forms of representation within the software are protected by law. The copyright, patent rights, trademark rights and all other ancillary copyrights to the software as well as to other objects that we leave or make accessible to the customer in the context of the contract initiation and implementation are exclusively ours in relation to the contractual partners. If third parties are entitled to the rights, we have the corresponding exploitation rights. The customer is not entitled to grant sub-licenses.
6.3. The customer is only entitled to use the program to process his own data in his own company for his own purposes. After the full and unconditional payment of the fee, we grant the customer the authorizations necessary to use the software and a simple, non-exclusive right of use limited to the Federal Republic of Germany and the countries of the EU (European Union).
6.4. The customer may make the backup copies of the programs required for safe operation. As far as technically possible, the backup copies must be provided with the copyright notice of the original data carrier and stored securely. Copyright notices may not be deleted, changed or suppressed. Copies that are no longer required must be deleted or destroyed. The user manual and other documents provided by us may only be copied for internal purposes. If, for technical reasons, the data carrier provided to the customer contains software that is not included in the software license granted to the customer, this software may only be used on the basis of a separate license that is to be obtained by the customer. The software may have technical means to prevent the use of unlicensed software
6.5. The customer is only entitled to pass on the software or parts of it to a third party in accordance with the following rules: a) Only an original data carrier may be passed on. Other software or software in a different version may not be passed on. b) The customer deletes all other copies of the software (irrespective of the version), in particular on data carriers and in hard or main memories. He finally gives up use. He undertakes to carry out these processes before forwarding the original data carrier to the third party and to confirm them to us in writing without delay. c) The transfer to the third party takes place on a permanent basis, i.e. without a return claim or repurchase option.
6.6. The customer may only decompile the interface information of the programs within the limits of § 69 e UrhG and only if he has informed us in writing of his project and asked us to provide the necessary information within a period of at least two weeks.
6.7. All other exploitation activities, in particular the rental, lending and distribution in physical or intangible form, use of the software by and for third parties (e.g. outsourcing, data center activities, application service providing) are not permitted without our prior written consent.
6.8. Subjects of the contract, documents, suggestions, test programs, etc., which we make available to the customer before or after the conclusion of the contract, are considered our intellectual property and business and trade secrets and must be kept secret.
7. Obligations of the customer, acceptance
7.1. The customer is obliged to have all delivery items examined by a competent employee immediately after delivery or after they have been made accessible in accordance with the commercial regulations (§ 377 HGB) and to notify any defects in writing with a precise description of the error. The customer thoroughly tests each delivery item or delivered software for usability in the specific situation before starting productive use. This also applies to programs that the customer receives as part of the warranty and a maintenance contract.
7.2. If the customer does not provide a written or oral statement within 1 month of delivery of the software versions to be approved, the respective version is deemed to have been approved. Positive acceptance is defined in such a way that we and the customer reach a consensus that the desired product qualities have been realized or that the product qualities to be developed by us can be realized within the scope of this order. Otherwise, the statutory provisions apply.
7.3. The customer shall take reasonable precautions in the event that the program does not work properly in whole or in part (e.g. by backing up data, diagnosing faults, regularly checking the results, emergency planning). It is his responsibility to ensure the working environment of the program.
8. Retention of title
8.1 Each of the goods we deliver remains our property until the purchase price has been paid in full.
8.2 Until the complete settlement of all claims resulting from the business relationship (extended reservation of title). Any kind of disposal by the customer of the goods subject to retention of title is only permitted in the customer's regular business dealings. Under no circumstances may the goods be transferred to third parties as security in the course of regular business transactions. If the goods are sold in regular business transactions, the purchase price paid takes the place of the goods. The customer already now assigns to us any claims arising from a possible sale. The customer is authorized to collect these claims as long as he meets his payment obligations to us. With regard to the extended retention of title (advance assignment of the respective purchase price claim), an assignment to third parties, in particular to a bank, is contrary to the contract and not permitted. We are entitled at any time to check the customer's sales documents and to inform their customers of the assignment. If the customer's claim has been recorded in a current account, the customer hereby assigns his current account claim to his customer to us. The assignment takes place in the amount that we had charged the customer for the resold reserved goods. In the event of a seizure of the goods by the customer, we must be informed immediately by sending a copy of the foreclosure protocol and an affidavit that the seized goods are the goods we have delivered and are subject to retention of title. If the value of the collateral in accordance with the preceding paragraphs of this section exceeds the amount of the secured claim after deduction of the collateral costs by more than 20% in the foreseeable future, the customer is entitled to request the release of collateral from us insofar as the excess present.
9. Special provisions for maintenance and repair work
9.1. If we carry out maintenance or repair work, this will be carried out exclusively under the respective conditions and in addition to these general terms and conditions.
9.2. Our maintenance and repair activities are services. The prices are based on the currently valid service price list. Travel costs, material costs and the like are additionally charged according to our respective price lists. Travel times of our employees count as working hours and are to be remunerated according to the service price lists. If the customer requests a cost estimate, we will examine the matter and then submit a cost estimate. The costs of this examination are in turn borne by the customer. The costs of the test are calculated according to the expenditure and are only charged within the framework of a possible repair or maintenance contract if this has been expressly agreed in advance.
10.1. Training courses for the customer require a separate agreement. They take place at our discretion in our business premises, at the customer's or at another location to be determined in consultation with the customer. In the case of training at the customer's premises, the customer will provide the appropriate premises and technical equipment. In the case of a training course elsewhere, the customer rents the premises and provides the required hardware and software on site at his own expense.
10.2. We can skip a training session for an important reason and will notify the customer of the cancellation of an appointment in good time and offer alternative dates. In the event that the customer is justified in dissatisfaction with a training course, we have the option to remedy the situation.
11. Warranty / notification of defects
1 1.1.Wir provide a warranty as follows: For newly manufactured items and software 12 months for used goods, the warranty is excluded. The customer must immediately check the delivered goods for defects in accordance with no. 7.1. examine and report obvious defects to us in writing within a period of two weeks from receipt of the goods; Otherwise the assertion of the warranty claim is excluded. Deadline is sufficient for the timely dispatch of the notice of defects. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notification of defects. We will only accept notices of defects if they have been communicated in writing. Complaints that are asserted against field service employees or transporters or other third parties do not represent complaints that are in due form and in due time.
11.2. We are only liable for damages resulting from the defectiveness of the item if this is due to an at least grossly negligent breach of duty on our part, our legal representative or our vicarious agents. The above restriction expressly does not apply if a culpable breach of duty on our part, our legal representatives or vicarious agents gives rise to liability for damage resulting from injury to life, body or health.
12. Warranty for software
Unless in no. 11. Already regulated, the following primarily applies to the delivery of software:
12.1 The software has the agreed quality and is suitable for the contractually required use, or, in the absence of an agreement, for normal use. It meets the criterion of practical suitability and has the usual quality for software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or the like. is not a defect. An insignificant reduction in quality is not taken into account.
12.2. In the event of material defects, we can initially provide subsequent performance. The supplementary performance is carried out at our discretion by eliminating the defect, by delivering software that does not have the defect, or by showing us ways to avoid the effects of the defect. Due to a defect, at least three attempts at rectification are to be accepted. An equivalent new program version or the equivalent previous program version that did not contain the error is to be accepted by the customer if this is reasonable for him.
12.3. The customer will support us in analyzing errors and eliminating defects by specifically describing any problems that arise, informing us comprehensively and granting us the time and opportunity required to eliminate defects. At our option, we can remedy the defect on site or in our business premises or provide services by remote maintenance. The customer must ensure the necessary technical requirements at his own expense and grant us access to his EDP system after prior notification.
12.4. The contractual partners agree on the following error classes and response times:
a) Error class 1: Defects that prevent operations: The error prevents the customer from doing business; There is no workaround solution: We will start correcting the error immediately, at the latest within four hours of the error message, and continue with vigor until the error has been eliminated, if this is reasonable outside of normal working hours (workdays 8:00 a.m. to 5:00 p.m.).
b) Error class 2: Defects that hinder operations: The error significantly hinders business operations at the customer's premises; however, it can be used with workarounds or with temporarily acceptable restrictions or difficulties: in the event of an error message before 10:00 a.m., we begin troubleshooting on the same day, in the event of a later error message at the beginning of the next working day and continue within the normal working hours until the error is eliminated . We can first point out a workaround and correct the error later if this is reasonable for the customer.
c) Error class 3: Other defects: We start to correct the error within one week or only eliminate the error with the next program version if this is reasonable for the customer.
12.5. The deadlines according to para. 4 begin with a complaint according to no. 11 Paragraph 1. In the event of a disagreement about the assignment of an error to the classes according to Paragraph 4, the customer can request that it be assigned to a higher error class. He reimburses us for the effort if he cannot prove that his classification was correct.
12.6. We can demand reimbursement of additional costs resulting from the fact that the software was changed, used outside the specified environment or operated incorrectly. We can demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § 254 BGB applies accordingly.
13. Defects in title in software
13.1. We guarantee that the contractual use of the software by the customer does not conflict with any third party rights. In the event of legal defects, we guarantee that, at our option, they will provide the customer with a legally flawless option to use the software or equivalent software.
13.2. The customer informs us immediately in writing if third parties assert property rights (e.g. copyrights or patent rights) on the software against him. The customer authorizes us to deal with the third party alone. As long as we make use of this authorization, the customer may not accept the claims of the third party without our consent; we defend the claims of the third party at our own expense and release the customer from all costs associated with defending against these claims, provided that these are not based on his conduct contrary to duty (e.g. use of the programs contrary to the contract).
14. Liability for other breaches of duty
14.1. Without prejudice to the provisions on warranty and other special provisions made in these provisions, the following applies in the event that we have violated an obligation: We are liable for our employees, vicarious agents and vicarious agents for an unlimited amount of damages, including for slight negligence in the event of injury to life , Body or health of people. In addition, we are only liable to the following extent:
14.2 The customer must grant us a reasonable period of subsequent performance to remedy the breach of duty, which must not be less than three weeks. The customer can only withdraw from the contract and / or demand compensation after the subsequent performance period has expired without success.
14.3 If we violate an essential contractual obligation, i.e. one without whose observance the purpose of the contract could not be fulfilled, we are also liable in cases of willful intent, gross negligence and slight negligence. In these cases, however, the damage is limited to the typically foreseeable damage.
14.4. If the breach of duty by us is not a breach of an essential contractual obligation, we are only liable in cases of gross negligence and willful intent.
14.5. Our liability for malice and under the Product Liability Act remains unaffected.
14.6. The customer has to take account of contributory negligence, e.g. B. the inadequate provision of cooperation services (e.g. also inadequate error messages, organizational errors or insufficient data backup). We are only liable for the recovery of data insofar as the customer has taken the usual and reasonable precautions for data backup and has ensured that the data and programs, which are available in machine-readable form, can be reconstructed with reasonable effort. In particular, the customer is obliged to carry out a data backup before each of the aforementioned work and to check the successful success of this data backup. If the customer has not done this, he is obliged to inform our employee of this before starting any work. If our employees are to back up the data and check that it is successful, the customer bears the costs. The costs are calculated according to our current price list.
15. Processing of third-party guarantees Guarantees are performance promises made by the manufacturer to the customer. They therefore do not create any obligation for us. The customer is therefore obliged to create the conditions for the exercise of the claims from the guarantee at his own expense. In particular, the customer bears the costs of transport to the manufacturer and collection from the manufacturer, assembly and dismantling and, if applicable, the costs of a replacement device.
16.1. The contracting parties undertake to treat all items (e.g. software, documents, information) that are received or become known to them by the other contracting party before or during the execution of the contract as confidential, even after the end of the contract, unless they are not in breach of the confidentiality obligation publicly known. The contractual partners store and secure these items in such a way that access by third parties is excluded.
16.2. The customer only makes the contractual items accessible to employees and other third parties who need access to perform their official duties. He instructs these people about the confidentiality of the objects.
16.3. We process the customer's data required for business transactions in compliance with data protection regulations. We are allowed to name the customer as a reference customer after successful completion of the services.
17.1. Oral side agreements have not been made. Changes and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing.
17.2. In the event that provisions of these general terms and conditions are or become wholly or partially ineffective, this does not affect the effectiveness of the remaining provisions of the general terms and conditions. Instead of the ineffective provision, an appropriate provision should apply that comes as close as possible to what the parties would have wanted if they had considered the point when concluding this contract.
17.3. The sole place of jurisdiction for all disputes arising from the contract and its effectiveness is our registered office, unless the law mandates other places of jurisdiction. The law of the Federal Republic of Germany applies to the exclusion of the UN Sales Convention (CISG). The place of performance is the headquarters of IFANO GmbH.