CGV
The General Terms and Conditions of Soloplan GmbH
– Software for logistics and planning.
Following named “Soloplan”.
1. Preamble
1.1 Scope
The General Terms and Conditions (GTCs) of Soloplan GmbH (Soloplan) shall apply solely to companies in the sense of §14 of the German Civil Code (BGB), i.e. to natural persons and legal entities who, upon conclusion of legal transactions, act within the scope of their commercial or independent professional activity.
1.2 Definitions
1.2.1 CUSTOMER
refers to the buyer and/or orderer of the services of SOLOPLAN.
1.2.2 STANDARD SOFTWARE
refers to the software CarLo® with the current version number and/or (depending on the order) individual, independent or dependent modules such as, for example, CarLo® inSTORE, CarLo® inMOTION, CarLo® inTOUR, CarLo® inHUB, CarLo® inAIR&SEA.
1.2.3 SPECIAL PROGRAMMING
refers to an adjustment of the STANDARD SOFTWARE according to the requirements of the CUSTOMER. That includes not only the adjustment of the existing STANDARD SOFTWARE but also – but not solely – the adjustment of standard interfaces, the adjustment and/or creation of standard reports (e.g. invoices, delivery notes) and the creation of new modules or functions for the STANDARD SOFTWARE.
1.2.4 SOFTWARE
refers to the STANDARD SOFTWARE and/or SPECIAL PROGRAMMING.
1.2.5 INSTALLATION
refers to the installation of the STANDARD SOFTWARE on the data processing system of the CUSTOMER.
1.2.6 DATA PROCESSING SYSTEM
refers to the hardware requirements (system requirements) and vice versa.
1.2.7 DELIVERY
refers to (1) the delivery of a data medium to the address specified by the CUSTOMER; (2) the provision of the software on Soloplan’s marketplace and the disclosure of the download link; or (3) the INSTALLATION of the software by a Soloplan employee which takes place in person on-site or via remote maintenance.
1.2.8 CLAIMS TO DAMAGES
also include the claims to reimbursement of futile expenses in the sense of §284 of the BGB.
1.2.9 TEXT FORM
refers to a letter, fax or e-mail.
1.3 Possible subject matters of the contract
Possible subject matters of the contract are the purchase of the STANDARD SOFTWARE for one’s own use, SPECIAL PROGRAMMING, the execution of a workshop, consulting, the creation of minutes or a specifications sheet, the INSTALLATION by a Soloplan employee, the training of the CUSTOMER, or software maintenance. The functional range of the STANDARD SOFTWARE is that which is stated in the order form in connection with the product specification of SOLOPLAN.
1.4 Exclusivity
Solely SOLOPLAN’s GTCs shall apply. The CUSTOMER’s GTCs which conflict with or differ from the GTCs of SOLOPLAN will not be recognised unless SOLOPLAN explicitly agrees to their validity. SOLOPLAN’s GTCs shall also apply in the event that SOLOPLAN, being aware of conflicting or differing GTCs of the CUSTOMER, performs the service without reservation.
2. Execution of the contract
2.1 Contract negotiations
Soloplan reserves all property rights and copyrights to the examples, images, drawings, data, quotations and any other documents related to products and services of Soloplan of which the CUSTOMER is informed or which are given to him. The CUSTOMER undertakes not to make those documents available to third parties unless Soloplan explicitly agrees in written form. The documents named in sentence 1 are to be returned to Soloplan upon request if no order based on them is submitted to Soloplan.
2.2 Conclusion of the contract
2.2.1 Offers
The offers made or quotations given by Soloplan are subject to change provided that they are not explicitly identified as binding, do not contain explicitly binding promises or their binding nature was not explicitly agreed upon in any other way. They are invitations to order. That also applies to follow-up orders of the CUSTOMER.
2.2.2 Order
The CUSTOMER’s order is a binding offer.
2.2.3 Acceptance by order confirmation or commencement of the service
A contract is only established when Soloplan confirms the order of the CUSTOMER by means of an order confirmation in TEXT FORM or sends him an INSTALLATION appointment confirmation. The commencement of the INSTALLATION or the delivery of the service is also equivalent to the order confirmation.
2.3 Fulfilment of the contract
The scope of the fulfilment of the contract comprises the deliveries and services confirmed with the order confirmation from Soloplan. If the STANDARD SOFTWARE is to correspond with special purposes of the CUSTOMER, those special purposes and requirements which the software must fulfil must be explicitly and fully named by the CUSTOMER in the order and confirmed by Soloplan.
2.3.1 Delivery of the software
The SOFTWARE is DELIVERED solely in an executable form (object code). Even a mere partial conversion into source language (source code) and its editing is not permissible. Only within the scope of the binding provisions of the copyright law is the CUSTOMER, to the end of facilitating interoperability with other systems, authorised to decompile the machine-readable licence material and reproduce it, insofar as it is necessary for the facilitation of interoperability with other programmes, and insofar as Soloplan has not made the information necessary for that available to the CUSTOMER within an appropriate time period upon request.
2.3.2 Utilisation rights
2.3.2.1 Granting of the utilisation rights
Soloplan grants the CUSTOMER (against the remuneration named in the order form) the simple, permanent and non-exclusive right to simultaneous use of the SOFTWARE by the number of users stated by name in the order form (named users). The CUSTOMER is thus authorised to install, load and run the SOFTWARE at the maximum number of user work stations (named user) stated in the order form. The CUSTOMER is authorised to create backup copies and typical data backups in a reasonable quantity.
2.3.2.2 Reservation of property rights pertaining to the utilisation rights
The granting of the utilisation rights is conditional on the conclusion of a contract as well as the timely payment of the licence fees.
2.4 Range of utilisation
2.4.1 Limitation of the utilisation rights
The utilisation of the SOFTWARE is limited to the support of the internal business operations of the CUSTOMER. A separate agreement is necessary for the utilisation for the support of the business operations of a third party. Without a previous written agreement by Soloplan, the CUSTOMER may not issue sublicences
a) or rent or lend the software to third parties, nor may he release the software to third parties for temporary use or use it for the purposes of third parties or allow it to be used by third parties in the scope of IT services (in particular in the scope of the operation of a data centre or an outsourcing company or in the scope of timesharing agreements), or in any other way,
b) nor may he use the software to develop independent software.
Copyright and other protective right annotations within the SOFTWARE may not be removed or changed. They shall be included in each copy.
2.4.2 Utilisation in excess
Every utilisation in excess of the contractually agreed scope (in particular the simultaneous utilisation of the software by a greater number of users than named in the order form) is an action in violation of the contract. In that case, the CUSTOMER is obliged to inform Soloplan, without delay, of the excess utilisation. The parties will then try to reach an agreement regarding the extension of the utilisation rights. The CUSTOMER is obliged to pay compensation, in accordance with Soloplan’s price list, for the period of excess utilisation, i.e. until conclusion of such an agreement or until the cessation of the excess utilisation. A three-year linear depreciation shall be used as the basis for calculating the compensation. If the CUSTOMER does not inform Soloplan of the excess utilisation, a contractual penalty shall be payable to the sum of three times the price of the used utilisation in accordance with the Soloplan price list.
2.4.3 Resale
The CUSTOMER is entitled to transfer/sell the SOFTWARE to a third party a total of one time for a fee and thus once transfer the utilisation rights which were granted to the CUSTOMER. In that case, the CUSTOMER shall delete any copies of the SOFTWARE made by him or give them to the buyer or transferee. Further distribution or sublicensing requires Soloplan’s agreement and shall be subject to the corresponding payment.
2.5 Terms of delivery
2.5.1 Terms of delivery for the standard software
Terms of delivery are only binding if they have been explicitly confirmed by Soloplan in writing. The binding nature of a term of delivery is dependent on whether all participatory acts have been carried out in a timely manner by the CUSTOMER. The term of delivery has been adhered to
a) upon delivery by means of the INSTALLATION of the SOFTWARE by a Soloplan employee, as soon as the INSTALLATION has been carried out within the agreed term of delivery. It can be carried out by the Soloplan employee in person and on-site, or via remote maintenance.
b) upon delivery by the delivery of a data medium to the address specified by the CUSTOMER or by delivery by means of the provision of the software on SOLOPLAN’s marketplace and the disclosure of the download link, if the consignment has been sent to the CUSTOMER by Soloplan or a subcontractor of Soloplan or if it has been made available for the CUSTOMER to pick up within the agreed term of delivery. If the pick-up or delivery is delayed for reasons which the CUSTOMER is responsible for, the term of delivery is regarded as adhered to if the notification of readiness for dispatch took place within the agreed term of delivery.
In the case of disruptions due to force majeure and other obstacles which are not attributable to Soloplan, Soloplan’s terms of delivery shall be extended appropriately. Should the delivery become permanently impossible or unreasonable due to force majeure, Soloplan will definitively be released from the service obligation.
2.5.2 Other terms of delivery
Terms of delivery for the provision of SPECIAL PROGRAMMING or other services to be provided by Soloplan require an explicit written agreement. The terms of delivery for the creation of a specifications sheet or minutes by Soloplan will be extended correspondingly if the CUSTOMER does not give his approval until after the designated date or if any other documents which are necessary for the provision of the SPECIAL PROGRAMMING are, through no fault of Soloplan, not available on a specified date in order to start the work according to schedule. The same applies if Soloplan is prevented from correctly carrying out the order due to subsequent changes to the specifications sheet, subsequent adjustment requests of the CUSTOMER for SPECIAL PROGRAMMING, or any other circumstances which are not attributable to Soloplan. In particular, circumstances which are not attributable to Soloplan are delays or failure to fulfil duties on the side of the CUSTOMER which, in the scope of the collaboration, need to be provided by the CUSTOMER (see section 2.8), or problems pertaining to the system environment to be provided (hardware requirements, among other things).
2.6 Performance of services
2.6.1 Installation and training
The INSTALLATION of the STANDARD SOFTWARE and the training of the CUSTOMERS shall take place at the times named in the appointment confirmation.
2.6.2 Software maintenance
Soloplan will carry out the software maintenance starting at the time of the INSTALLATION and/or delivery of the STANDARD SOFTWARE and/or SPECIAL PROGRAMMING.
2.7 Remuneration
All prices and flat rates are exclusive of the respective statutory value added tax.
2.7.1 Due date
2.7.1.1 Due date for delivery of the standard software
The contractually agreed remuneration for the delivery of STANDARD SOFTWARE is payable, without any deduction, upon performance of services in accordance with section 2.3.1 and upon granting of utilisation rights in accordance with section 2.3.2. Non-settlement of the payment after expiry of the due date indicated on the invoice results in the customer being in arrears with payment.
2.7.1.2 Due date for delivery of special programming
The contractually agreed remuneration for the delivery of SPECIAL PROGRAMMING is payable, without any deduction, upon performance of services in accordance with section 2.3.1 and upon granting of utilisation rights in accordance with section 2.3.2. Non-settlement of the payment after expiry of the due date indicated on the invoice results in the customer being in arrears with payment.
2.7.1.3 Due date for remuneration for software maintenance
The remuneration for the software maintenance contract is that which is stated in the order form. Principally, the remuneration for the software maintenance contract is due on 1 January of each year. The remuneration is due in advance for the entire respective calendar year. Part payments are not permissible. Software maintenance contracts concluded during an ongoing calendar year are only invoiced based on the proportion of months until the end of the year. Then, the first day of the invoice period will be the first day of the month, if the performance of services took place up to and including the 15th day of the month. If the performance of services took place starting on the 16th day of the month, the first day of the succeeding month will be regarded as the start of the invoice period.
2.7.1.4 Due date of the other services and additional costs
The remuneration for other services and additional costs shall become due when the service is performed.
2.7.2 Prohibition of offsetting/right of retention
The CUSTOMER only has a right of offsetting or retention regarding such counterclaims so far as they are not disputed or legally established. The CUSTOMER’s right of retention can only be exercised provided that his counterclaim is based on the same contractual relationship. In that respect, the delivery of the STANDARD SOFTWARE and the software maintenance are respectively regarded as independent contractual relationships.
2.8 Participation of the customer
2.8.1 Provision of the hardware
The STANDARD SOFTWARE can only be installed on hardware which fulfils certain requirements. SOLOPLAN transmits the hardware requirements with the offer. The CUSTOMER is obliged to obtain the necessary hardware and confirm the fulfilment of the requirements with his signature on the hardware requirements. The CUSTOMER is obliged to compensate damages which are incurred because the INSTALLATION cannot be carried out on the existing hardware.
2.8.2 Support during performance of services
The CUSTOMER will name an employee (project manager) to SOLOPLAN who will monitor the performance of the agreed service and serve as a contact person for any questions connected with the process. The CUSTOMER will provide Soloplan with any information necessary for the execution of the contract in written, transparent form, particularly interface documentations and example files of systems to be connected, and will also explain that information verbally upon request of Soloplan. That will be carried out free of charge. Additionally, the CUSTOMER will make available to Soloplan the devices, (test) programmes, test data and persons necessary for the service, free of charge. The CUSTOMER will provide the Soloplan employees with unrestricted access to the data processing system designated for the INSTALLATION of the STANDARD SOFTWARE at the agreed times.
2.8.3 Participatory acts/services of the customer
Agreed personal contributions by the CUSTOMER are to be carried out by the project manager or a professional to be named by the CUSTOMER. The CUSTOMER (in particular, his project manager) is obliged to participate in the INSTALLATION within the contractually agreed scope, take part in the introductory and further training sessions and monitor and check the INSTALLATION as well as the data transfer.
2.8.4 Confirmation of the performance of services
After the delivery and/or INSTALLATION of the STANDARD SOFTWARE, the CUSTOMER shall confirm to Soloplan the correct performance of services. The customer shall confirm the correct delivery on the delivery note, and the correct INSTALLATION and training on an installation and training report provided by Soloplan. If, in general, the STANDARD SOFTWARE works in accordance with the contract, the CUSTOMER is to give that confirmation immediately. This declaration of confirmation cannot be refused due to insignificant defects. If the CUSTOMER refuses to give this confirmation, he is obliged to report specific defects to Soloplan with an exact description in writing, in the form of a defect report, at the latest within 10 working days after delivery and/or INSTALLATION). Soloplan needs to be able to reproduce the defect based on the description. If, within the specified time period, Soloplan receives neither a declaration of confirmation nor a defect report, the delivery and/or INSTALLATION will be regarded as correctly carried out. If the CUSTOMER pays the remuneration without complaint after delivery and/or INSTALLATION of the STANDARD SOFTWARE, that shall be equivalent to a confirmation of the correct delivery and/or INSTALLATION. An acceptance confirmation to a leasing company shall also be equivalent to a confirmation of the correct delivery and/or INSTALLATION towards Soloplan.
3. Special provisions for individual subject matters of the contract
In accordance with the CUSTOMER’s order, Soloplan is obliged to perform the following services:
3.1 Workshop
If Soloplan has undertaken to carry out a workshop, Soloplan will provide the CUSTOMER with a written documentation pertaining to the subject matter of the workshop after the workshop has been carried out. The documentation will be created in the form of minutes or a specifications sheet. A corresponding offer will be created based on the documentation. The CUSTOMER is obliged to take part in the workshop, provide Soloplan with all of the necessary information in written, transparent form, and also to verbally explain that information to Soloplan upon request and accept the documentation.
3.2 Minutes
The requirements of the CUSTOMER recorded during the workshop will be documented in minutes and presented to the CUSTOMER for acceptance. The CUSTOMER is obliged to check the minutes and (if it corresponds with his requirements) accept it. Objections must be communicated to Soloplan in writing 14 days after receipt of the minutes. If Soloplan does not receive any objections within that time, the minutes will be regarded as accepted. A corresponding offer will be created based on these minutes.
3.3 Specifications sheet
The requirements of the CUSTOMER recorded during the workshop will be documented in a specifications sheet and presented to the CUSTOMER for acceptance. The CUSTOMER is obliged to check the specifications sheet and (if it corresponds with his requirements) accept it. If the CUSTOMER does not refuse to accept the specifications sheet in writing and under indication of objection within 14 days of receipt of the specifications sheet and request for acceptance, (1) the CUSTOMER will be in default of acceptance and (2) the specifications sheet will be regarded as accepted. A corresponding offer will be created based on this specifications sheet.
3.4 Consulting
Employees of SOLOPLAN’s Customer Solution Management department can act as consultants (consulting). Within the scope of consulting, customer-specific requirements can also be recorded or the CUSTOMER’s technical requirements can be discussed. In accordance with section 2.8, the CUSTOMER is obligated to partake in participatory acts.
3.5 Special programming
3.5.1 Order
Upon written order, SOLOPLAN will, within the respective agreed scope, extend and/or adjust the delivered STANDARD SOFTWARE. The CUSTOMER must inform Soloplan of his requirements. Depending on the order, that shall take place in writing or within the scope of a coordination meeting with SOLOPLAN’s Customer Solution Management.
The requirements named by the CUSTOMER will be summarised by SOLOPLAN in writing and transmitted to the CUSTOMER for confirmation. If the CUSTOMER does not inform Soloplan of his requirements or if the CUSTOMER does not confirm the requirements summarised by Soloplan, Soloplan is only obliged to provide the STANDARD SOFTWARE.
3.5.2 Adjustment of the standard reports and creation of new reports
In accordance with section 3.5.1, the standard reports are adjusted to the requirements of the CUSTOMER and then presented to the CUSTOMER for acceptance. The CUSTOMER is obliged to check the adjusted standard reports and (if they correspond with his requirements) accept them. After the CUSTOMER has accepted them, the adjusted standard reports are delivered to the CUSTOMER. If the CUSTOMER does not refuse to accept the adjusted standard reports with a written statement of reasons within 14 days of receipt of the adjusted standard reports and request for acceptance, (1) the CUSTOMER will be in default of acceptance and (2) the adjusted standard reports will be regarded as accepted. The above regulations apply analogously to the creation of new reports.
3.5.3 Adjustment of standard interfaces
In accordance with section 3.5.1, a standard interface can be adjusted to match the requirements of the CUSTOMER.
The adjusted standard interface will be presented to the CUSTOMER for acceptance and the CUSTOMER will be asked to accept it.
The CUSTOMER is obliged to check the adjusted standard interface and (if it corresponds with his requirements) accept it. If the CUSTOMER does not refuse to accept the adjusted standard interface with a written statement of reasons within 14 days of receipt of the adjusted standard interface, (1) the CUSTOMER will be in default of acceptance and (2) the adjusted standard interface presented for acceptance will be regarded as accepted.
3.5.4 Special programming in accordance with minutes/specifications sheet. In accordance with accepted minutes or an accepted specifications sheet, Soloplan can programme new functions for the STANDARD SOFTWARE. That can be carried out by means of new programme sections, scripts, workflows or the like. If SPECIAL PROGRAMMING is documented in the specifications sheet (section 3.3), the specifications sheet is significant for the SPECIAL PROGRAMMING. If, in the specifications sheet, no final specification of the requirements was made, the remaining regulations pertaining to SPECIAL PROGRAMMING shall apply in accordance with section 3.5 to section 3.5.3.
3.5.5 Other special programming
In correspondence with section 3.5.1, the requirements of the CUSTOMER can be realised by a SPECIAL PROGRAMMING. The SPECIAL PROGRAMMING will be presented to the CUSTOMER for acceptance and the CUSTOMER will be asked to accept it. The CUSTOMER is obliged to check the SPECIAL PROGRAMMING and (if it corresponds with his requirements) accept it. If the CUSTOMER does not refuse to accept the SPECIAL PROGRAMMING with a written statement of reasons within 14 days of receipt of the SPECIAL PROGRAMMING, (1) the CUSTOMER will be in default of acceptance and (2) the SPECIAL PROGRAMMING presented for acceptance will be regarded as accepted.
3.5.6 Duties and obligations of the customer
If the CUSTOMER realises that the requirements documented by Soloplan do not correspond with his actual requirements, he shall immediately inform Soloplan of that.
3.6 System configuration
Soloplan can install and configure the ordered STANDARD SOFTWARE on the data processing system of the CUSTOMER. The configuration is temporally limited. The temporal limitation is stated in the order form. If the CUSTOMER violates the contractual obligation to participate, in particular the obligations in accordance with section 2.8.1, Soloplan shall be entitled to refrain from carrying out the system configuration or abort it. Additional costs which have already been incurred for Soloplan due to the system configuration are to be compensated by the CUSTOMER in accordance with section 2.8.1.
3.7 Training
3.7.1 Description of service
SOLOPLAN will explain the contents and standard functions of the STANDARD SOFTWARE within the scope of a training session. The training is temporally limited. The temporal limitation is stated in the order form. SOLOPLAN is not obliged to guarantee a certain degree of success during the training session. If the training takes place at the CUSTOMER’s location, the CUSTOMER is obliged to provide the sufficient technical equipment necessary for the training free of charge. Training participants must have basic computer knowledge.
3.7.2 Documents/recordings
Training documents, data and the software which Soloplan provides for the execution of the training are copyright-protected and may be used by the course participants solely during the time period during which the training takes place, for practice and revision of the training. All rights to the training documents and the provided software remain explicitly reserved. The training documents (and excerpts of those documents) may not be reproduced or, with the help of electronic systems, be processed, copied, distributed or used for public reproduction without the prior written consent of Soloplan. The customer or the employees sent to the training by him are not entitled to create video or audio recordings of the training.
3.8 Software maintenance
3.8.1 Description of service
Soloplan will perform the services contained in the ordered service package (Basis, Premium, PremiumPLUS) for the STANDARD SOFTWARE (with the exception of third-party software) and SPECIAL PROGRAMMING stated in the order form (see price list “Third-party software, Software maintenance and services”). In the scope of hotline support, Soloplan will support the CUSTOMER in handling technical problems during the use of the STANDARD SOFTWARE and SPECIAL PROGRAMMING. The hotline support does not include services which are performed in the scope of consulting (see section 3.4), system configuration (see section 3.6) or training sessions (see section 3.7). Those services must be ordered separately.
3.8.2 Cessation of the service obligation
Soloplan’s obligation to perform the agreed software maintenance does not apply if technical problems occur.
a) which arise due to the incorrect use of the software by the CUSTOMER, the modification/editing of the software by the CUSTOMER or due to any other fault of the CUSTOMER or a third party which is not a vicarious agent of the CUSTOMER, or due to third-party software,
b) or because the STANDARD SOFTWARE was installed on a data processing system which does not meet the hardware requirements of the STANDARD SOFTWARE.
3.8.3 Blocking of the customer
As long as the CUSTOMER does not settle due claims arising from the contractual relationship, Soloplan shall be entitled to suspend all services within the scope of software maintenance until the point in time when the CUSTOMER has settled any due claims. The suspension of the services in the scope of software maintenance does not release the CUSTOMER – not even proportionally – from paying the agreed remuneration.
3.8.4 Term of the contract
The software maintenance contract is for an indefinite period of time and starts with the delivery of the STANDARD SOFTWARE. It can be terminated by either side in writing with a notice of three months to the end of each calendar year. At the earliest, termination is possible to the end of the calendar year following the year in which the contract started.
3.8.5 Increase of the remuneration
Soloplan is entitled to adjust the flat-rate remuneration for the software maintenance to the beginning of an invoice period. An adjustment will consider, to the necessary extent, the change of the quality or the scope of functionalities, significant changes of the market conditions and the increase of the general wage costs or other employment costs. Soloplan shall inform the CUSTOMER of a change to the remuneration in writing, at least two months beforehand. If the maintenance remuneration is increased by more than 10%, the CUSTOMER shall be entitled, within a time period of one month after receipt of the demanded increase, to cancel the maintenance contract to the end of the current invoice period.
4. Material defects and defects of title
4.1 Obligation to investigate and give notice of defects
The CUSTOMER’s defect-related rights depend on whether he has correctly met his obligations to investigate and give notice of defects in accordance with §377 of the German Commercial Code (HGB).
4.2 Defects
A material defect exists if the SOFTWARE does not possess the contractually agreed properties. The contractual properties are stated in the order form in connection with the SOLOPLAN product specification. The buyer acknowledges that, due to the current state of technology, it is not possible to develop data processing programmes which always work free of errors, particularly when they are connected with other programmes. That does not constitute a defect.
4.3 Complaint
Complaints due to noticeable material defects are to be issued by the CUSTOMER immediately (but not later than 10 days after delivery); for hidden material defects, the complaint must be issued immediately after discovery. The complaint must be issued in writing and must contain a comprehensible specification of the points and scope. After expiry of the statute of limitations in accordance with section 4.6, no claims can be derived from noticeable or hidden defects. An untimely complaint excludes any claim of the CUSTOMER arising from a breach of duty due to material defects. That does not apply in the case of intentional, grossly negligent or fraudulent actions by Soloplan; in the case of the injury to body, life or health; or the assumption of a warranty by Soloplan guaranteeing freedom from defects or of a procurement risk in accordance with §276 of the BGB or other legally binding statements of liability.
4.4 Deadline extensions
If the assertion of rights by the CUSTOMER requires the setting of an appropriate deadline, it shall be at least 14 days and start upon receipt by SOLOPLAN.
4.5 Defect-related rights
SOLOPLAN is entitled to choose between rectifying the defect or delivering a replacement. The rectification of the defect by SOLOPLAN can also be carried out in the form of procedural instructions given to the CUSTOMER via telephone, written or electronic means. If SOLOPLAN’s subsequent performance was not successful within a reasonable period of time (which allows at least two rectification attempts), the CUSTOMER is obliged to set a final reasonable extension to the deadline for SOLOPLAN which allows at least two more rectification attempts. If SOLOPLAN is not successful within this final extension to the deadline either, the CUSTOMER is entitled to a reduction in payment or to withdraw from the contract. The right to withdraw from the contract or claim damages only exists in cases of severe defects.
4.6 Statute of limitations
The statute of limitations for the warranty claims amounts to 12 months, unless explicitly agreed upon otherwise in written or TEXT FORM. The statute of limitations starts upon delivery. If the CUSTOMER refuses to approve or accept the delivery, the statute of limitations shall begin upon notification of the delivery of the ordered service. That shall not apply to claims to damages arising from a warranty; the assumption of a procurement risk in the sense of §276 of the BGB; claims which arise due to the injury of body, life or health; intentional, grossly negligent or fraudulent actions by Soloplan or insofar as an extended statute of limitations is legally prescribed for any other reason. A reversal of the burden of proof is not connected to the above regulation.
4.7 Exclusion
Warranty claims (and the liability arising from them) are excluded if it cannot be proven that defects (and the damages connected to those defects) were caused by an incorrect execution of the programming or insufficient instructions for use. In particular, warranty claims (and the liability arising from them) and poor performance are excluded for the consequences of incorrect use by the CUSTOMER and for the consequences of electromagnetic or mechanical influences on the data mediums of the CUSTOMER. The above shall not apply in the case of intentional, grossly negligent or fraudulent actions by Soloplan or the injury of body, life or health; the assumption of a warranty; a procurement risk in accordance with §276 of the BGB and a liability in accordance with a legally binding statement of liability.
4.8 Acknowledgement
Material defects or defects of title must always be acknowledged in writing.
4.9 Changes made by the CUSTOMER
If the CUSTOMER has modified the STANDARD SOFTWARE or SPECIAL PROGRAMMING himself or has had it modified by a third party, the warranty claims are not applicable. That shall not apply if the CUSTOMER proves that the defects are not due to the modifications and the defect analysis and rectification by Soloplan will not be compromised.
4.10 Protective rights of third parties
4.10.1 Violation
If, by the utilisation of the delivered SOFTWARE, the protective rights of third parties are violated and the CUSTOMER is thus, entirely or in part, prohibited from using the SOFTWARE, the CUSTOMER shall, without undue delay, immediately inform Soloplan. Additionally, the CUSTOMER must, as far as possible, entrust to Soloplan the defence against the claims. To that end, the CUSTOMER shall provide Soloplan with any reasonable support; in particular, the CUSTOMER shall provide Soloplan with all of the necessary documents and information, if possible in writing, about the usage and any editing of the SOFTWARE.
4.10.2 Subsequent performance
If, by the SOFTWARE, the protective rights of third parties are violated and the CUSTOMER is thus, entirely or in part, prohibited from using the software, Soloplan will have the choice of either:
a) providing the CUSTOMER with the right to use the SOFTWARE again,
b) designing the SOFTWARE in an unprotected way or
c) replacing the STANDARD SOFTWARE and/or SPECIAL PROGRAMMING with a respective other software with a corresponding performance which does not violate a protective right.
5. Limitation of liability
5.1 Principle
In the case of a breach of obligations arising from the contractual relationship, Soloplan shall not be liable for the CUSTOMER’s claims to damages, regardless of the legal cause. The above limitation of liability shall not apply if there is a legally binding liability, nor for:
a) own intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty by legal representatives or vicarious agents,
b) the breach of essential contractual obligations. “Essential contractual obligations” are such obligations which protect the legal positions of the CUSTOMER which are essential to the contract and which the contract is to guarantee him in accordance with its content and purpose. In addition, such contractual obligations are essential whose fulfilment facilitates the correct execution of the contract in the first place and on whose fulfilment the CUSTOMER regularly relies and can regularly rely,
c) in the case of the injury of body, life or health, also by legal representatives or vicarious agents,
d) in the case of delay, as far as a fixed delivery and/or performance time was agreed upon,
e) if Soloplan assumed a warranty for the properties of the good or a performance success, or assumed a procurement risk in the sense of §276 of the BGB or
f) in the case of a liability in accordance with the German Product Liability Act or other legally binding statements of liability.
5.2 Scope of liability
For each case of damage, the amount of Soloplan’s liability is limited to the damage which is foreseeable and typically occurs. That shall not apply if Soloplan is guilty of fraud, malice or gross negligence; for claims due to the injury of body, life or health and in the case of a claim which is based on a tortious act or an explicitly assumed warranty or the assumption of a procurement risk in accordance with §276 of the BGB or in cases when higher amounts are mandatory by law.
5.3 Limitation period
Claims to damages of the CUSTOMER which arise from this contractual relationship can only be asserted within a limitation period of 12 months starting at the legal start of the limitation period. That shall not apply if Soloplan is guilty of malice or gross negligence; for claims due to the injury of body, life or health and in the case of a claim which is based on a tortious act or an explicitly assumed warranty or in the case that a longer limitation period is mandatory by law.
5.4 Liability for data loss
The liability for data loss shall be limited to the typical restoration effort which would have been required had backup copies been made regularly and according to risk. Liability in accordance with the German Product Liability Act remains unaffected. Liability regardless of fault is explicitly excluded.
5.5 Liability in the case of minor negligence
If Soloplan or a vicarious agent of Soloplan is only guilty of minor negligence and if no case of the above sections 5.1 lit. d), e) or f) exists, Soloplan shall only be liable for the contractually typical and foreseeable damage in the case of a breach of essential contractual duties, as well.
5.6 Liability for vicarious agents/subcontractors
The liability exclusions or limitations in accordance with the above sections 5.1 to 5.5 apply in the same measure in favour of the bodies of Soloplan, the executive and non-executive employees of Soloplan and other vicarious agents and the subcontractors of Soloplan.
6. Confidentiality
Soloplan and the CUSTOMER mutually undertake to keep confidential all business and company secrets of the other party and not pass them on to third parties or use them in any way. The documents and other information which the other contracting party receives due to the business relationship may only be used within the scope of the respective purpose of the contract. The delivered programmes, codes, documentations and programme concepts are regarded as Soloplan’s documents.
7. Data protection
Details on the topic of data protection can be viewed at https://www.soloplan.com/privacy-statement/.
8. Final provisions
8.1 Choice of law
For all legal relationships between the CUSTOMER and Soloplan, solely the law of the Federal Republic of Germany shall apply; in particular, the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. It is clarified that this choice of law is also to be understood as such in the sense of Article 14, section 1 b) of the Regulation (EC) No 864/2007 and shall thus also apply to non-contractual claims in the sense of this regulation. If, in individual cases, foreign law must mandatorily be applied, these GTCs are to be laid out in a way that the economic purpose they pursue is adhered to as far as possible.
8.2 Place of fulfilment and payment
Place of fulfilment and place of payment for all contractual obligations shall be the location of Soloplan’s headquarters.
8.3 Place of jurisdiction
The sole place of jurisdiction for all disputes shall be – as far as the CUSTOMER is a merchant in the sense of the German Commercial Code – the location of Soloplan’s headquarters. This rule of jurisdiction, for clarification, also applies to such issues between Soloplan and the CUSTOMER which can lead to non-contractual claims in the sense of the Regulation (EC) No 864/2007.
8.4 Written form
Any agreements, sub-agreements, assurances or changes to the contract must be made in writing. That also applies to the cancellation of the written form agreement itself. The priority of the individually negotiated terms in written, text or verbal form (§305b of the BGB) remains unaffected.
8.5 Authorised declarants
Except for the managing directors and authorised signatories, employees of SOLOPLAN are not entitled to make differing verbal agreements.
8.6 Force majeure
Soloplan is not responsible for duties from the contractual relationship which are not performed or are performed with a delay and are beyond Soloplan’s reasonable control. These include, in particular, natural events (e.g. floods), attacks on IT systems by third parties (e.g. attacks by hackers), labour shortages or labour disputes, governmental instructions or prohibitions (including currency restrictions, import or export licences, instructions during disease epidemics), war, terrorist attacks and disease epidemics. That shall also apply if those circumstances occur with a supplier, a performing assistant or a connected company. Soloplan shall immediately inform the CUSTOMER of this reason and will make economically reasonable efforts to resolve the non-performance or delayed performance as quickly as possible.
8.7 Amendment clause
Soloplan reserves the right to change these GTCs at any time, as far as it is necessary for valid reasons, in particular due to a different legal situation or supreme jurisprudence, technical changes or developments, new organisational requirements of mass transport, regulation loopholes in the GTCs, changes to the market conditions or for other equivalent reasons and does not put the CUSTOMER at an unreasonable disadvantage. The CUSTOMER will be informed in written or TEXT FORM of changes to the GTCs at least four weeks before they become valid. The changes will come into effect if the CUSTOMER does not object within that time period of four weeks (starting upon receipt of the notification of change) in written or TEXT FORM and Soloplan has made the CUSTOMER aware of that legal consequence in the notification of change.
8.8 Severability clause
Should individual clauses of these contractual terms or of individual agreements which may have been concluded alongside them be entirely or partially invalid, the validity of the remaining clauses shall remain unaffected. The invalid clause will be replaced with another clause which comes closest to the economic purpose of the invalid clause and is itself valid.