TERMS AND CONDITIONS
Status: Nov 2016
General terms and conditions of Necara GmbH
§ 1 Validity of contract conditions (1)
(1) These general terms and conditions (GTC) govern the contractual relationships of NeCara GmbH, Max-Planck-Straße 2, 55218 Ingelheim with its customers. (2) Even if this is not referred to again when concluding similar contracts, the general terms and conditions of Necara GmbH apply exclusively in the version valid when the customer submits the declaration, unless the contractual partners agree otherwise in writing. (3) Deviating from these terms and conditions in whole or in part. Terms and conditions do not become part of the contract, even if Necara GmbH does not provide them with expressly refuts.§ 2 Conclusion of contract
(1) Offers from Necara GmbH are subject to change and non-binding, unless the offer is described as binding in writing. A legal obligation is only concluded through a contract signed by both parties or by written order confirmation from NeCara GmbH, and also because Necara GmbH begins providing the services in accordance with the contract after the order has been placed. Necara GmbH may request written confirmations of oral contract declarations from the customer. (2) The customer is bound by declarations for the conclusion of contracts (contract offers) for four weeks.
§ 3 Subject matter of contract, scope of services (1)
The subject of these contractual conditions is the provision of services, the temporary licensing of software, and the granting of rights of use in accordance with § 4, as well as the services ordered with the purchase, e.g. training in accordance with § 15. (2) Before concluding the contract, the customer has verified that the specification of the software meets his wishes and needs. He is aware of the main functional features and conditions of the software. (3) The scope, type and quality of the deliveries and services is the mutually signed contract or order confirmation from Necara GmbH, otherwise the offer from Necara GmbH. Other information or requirements only become part of the contract if the contractual partners agree to this in writing or DieCara GmbH has confirmed them in writing. Subsequent changes to the scope of services require a written agreement or written confirmation by Necara GmbH. (4) Product descriptions, illustrations, test programs, etc. are service descriptions, but not guarantees. A guarantee requires a written declaration by the management of Necara GmbH. (5) Necara GmbH provides all deliveries and services in accordance with the state of the art. § 4 Service content when providing services (1)
Necara GmbH provides the service via the Internet on a server infrastructure operated by itself. It offers a platform as a service (PaaS) on which customers can create their own solutions for software as a service (SaaS). Necara GmbH offers both PaaS and SaaS solutions as cloud services. (2) Necara GmbH will create, provide and maintain the connection between the server and the Internet so that the data stored on the server can be forwarded to the retrieving computer at any time and without interference by external computers on the Internet (clients) using the protocols commonly used on the Internet and, with appropriate functionality of the website, customer data also are storable. (3) Subject to paragraph (4), Necara GmbH guarantees that the data stored by the customer in accordance with the contract can be accessed by the customer around the clock. However, NecaraGmbH assumes no responsibility for the success of the respective access to the service, unless networks operated exclusively by Necara GmbH or its immediate contractors, including their interfaces to third-party networks, are used. (4) In order to optimize and improve the performance of the systems provided for the provision of the services, Necara GmbH provides maintenance windows, which are generally used outside normal business hours, usually between 00:00 and 06:00 CET. During these maintenance periods, Necara GmbH may shut down its technical equipment to the extent necessary and to a limited extent. The customer will be informed in good time by e-mail that maintenance has been carried out outside the specified maintenance window. (5) Necara GmbH owes server availability of at least 98% during core hours and at least 96% availability outside core hours. The above minimum values are calculated on a monthly basis.5 Support for the software by Necara GmbH
(1) Unless there are individual agreements with the customer, DieCara GmbH will respond to support inquiries from customers sent by email to info@necara.degerichtet in accordance with the response times of the following categories:
a) In the event of critical problems, if the entire software or significant parts of it fail, making use completely or almost completely impossible, Necara GmbH will respond within 48 hours.
b) In the event of problems, if the use of the software is impaired to such an extent that reasonable work with the software is no longer possible or is only possible with disproportionate effort, Necara GmbH will respond within two working days
c) For all other inquiries, in particular regarding non-critical errors, inquiries about using the software or requests for functional enhancements, the provider will respond within four working days.
(2) In the case of a support request, the customer is obliged to describe problems in detail, possibly including screenshots, an error message or log files, and to name the system and environment on which the problem occurs. § 6 Customer rights to the software when delivering standard software
(1) The PaaS solution is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyright rights to the software and other objects that Necara GmbH provides or makes available to the customer in the context of contract initiation and execution are exclusively owned by Necara GmbH in the relationship between the contractual partners. Insofar as third parties own the rights, NecaraGmbH has corresponding exploitation rights.
(2) He is entitled to the intellectual property, in particular copyrights, to SaaS applications that the customer creates independently using the PaaS solution.
(3) With full payment of the fee in accordance with § 9 (1), the customer receives the non-exclusive, non-transferable and non-sub-licensable right to use the PaaS software to the extent agreed by the contract.
(4) The customer may only decompile the PaaS software interface information into the restrictive section 69e UrhG and only after he has notified Necara GmbH of his plan in writing and has asked for the necessary interface information to be provided with a period of at least two weeks. Section 15 applies to all knowledge and information that the customer receives about the software as part of decompilation. Prior to any involvement of third parties, he provides Necara GmbH with a written statement from the third party that the third party is directly committed to Necara GmbH to comply with the rules set out in § 5 and § 15.
(5) All other exploitation activities, in particular rental, rental and distribution in physical or intangible form, use of PaaS software through and for third parties (e.g. through outsourcing, data center activities, application service provision) are prohibited without the prior written consent of Necara GmbH.
(6) Contractual objects, documents, suggestions, test programs, etc. of Necara GmbH, which are made available to the customer before or after conclusion of the contract, are considered intellectual property and as a business and trade secret of Necara GmbH. They may not be used in any way without written permission from Necara GmbH and must be kept secret in accordance with § 15 § 7 Performance period, delays, place of performance
(1) Information on delivery and performance dates is non-binding, unless specified as binding in writing by Necara GmbH. Necara GmbH can provide general terms and conditions as of: Nov 2016 4 | 8 partial services, provided that the delivered parts can be usefully used by the customer.
(2) Delivery and performance periods are extended by the period in which the customer is in default of payment under the contract and by the period in which Dienecara GmbH is prevented from delivering or providing services due to circumstances for which it is not responsible, and by a reasonable start-up period after the impediment has ended. These circumstances include force majeure and industrial action. Deadlines are also considered extended by the period in which the customer does not provide cooperation in breach of contract, e.g. does not provide information, does not provide access, does not provide a provision or does not provide employees.
(3) If the contractual partners subsequently agree on other or additional services that have an effect on agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and deadlines set by the customer must be made in writing in order to be effective. A period of grace must be appropriate. A period of less than two weeks is only appropriate in cases of particular urgency.
(5) The place of performance of services is the place where the service is to be provided. In addition, the place of performance for all services arising from and in connection with this contract is the registered office of Necara GmbH. § 8 Duration and termination
(1) Contracts with customers are concluded for a specific or indefinite period of time. The deadline for customers is one month to the end of the month, for Necara GmbH three months to the end of the quarter. Contracts concluded for a specific period of time can be terminated for the first time at the end of the fixed period. If a contract concluded for a specific period is not terminated at the end of the fixed period, it will continue for an indefinite period of time.
(2) The right to cancel for good cause remains unaffected. An important reason exists in particular if the customer violates Necara GmbH's rights of use by using the software beyond what is permitted under this contract and does not remedy the infringement within a reasonable period of time in response to a warning from Necara GmbH.
(3) The termination must be made in text.§ 9 Remuneration, Payment
(1) The agreed remuneration is due without deduction for the agreed service period at the start of the billing period (in the case of training after the training has been completed) and after receipt of the invoice by the customer and is payable within 14 days.
(2) If the customer is in default of payment of the remuneration for two months, Dienecara GmbH has the right to block the customer's access to the PaaS platform.
(3) In the absence of any other agreement, the respective price and conditions list of NecaraGmbH.General terms and conditions as of: Nov 2016 5 | 8
(4) Travel expenses, expenses, accessories, shipping costs and telecommunications costs are to be paid in addition according to expenses. Additional services required by the customer (e.g. advice and assistance with program installation) will be invoiced according to Necara GmbH's current price list.
(5) Statutory sales tax is added to all prices.
(6) The customer can only offset claims that are undisputed or legally established by Necara GmbH. Except in the area of Section 354a HGB, the customer may only assign claims arising from this contract to third parties with the prior written consent of NecaraGmbH. The customer is only entitled to a right of withholding or the plea of an unfulfilled contract within this contractual relationship.§ 10 Obligations of the customer
(1) The customer is obliged to have all delivery items delivered by Necara GmbH immediately delivered or made available in accordance with commercial law regulations (§ 377 HGB) and to report identified defects in writing with a detailed description of the fault. The customer thoroughly tests each module 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.
(2) The customer takes appropriate precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular review of results, emergency planning). It is his responsibility to ensure the functioning of the program's working environment.§ 11 Material deficiencies
(1) The software has the agreed quality and is suitable for the contractually required and, in the absence of agreement, for normal use. It meets the criteria of practical suitability and has the usual quality of software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation, etc., is not a defect. An insignificant reduction in quality is not taken into account.
(2) In the event of material defects, Necara GmbH can first correct them. Because of a defect, at least three attempts to correct the problem are acceptable. To take over from the customer an equivalent new program version or the equivalent previous program version without the fault, if this is reasonable for him.
(3) The customer supports Necara GmbH in analyzing errors and resolving defects, in particular by specifically describing problems that arise, providing Necara GmbH with comprehensive information and granting Necara GmbH the time and opportunity necessary to rectify the defect. Necara GmbH may, at its option, rectify the defect either locally or at its business premises. Necara GmbH can also provide services through remote maintenance. The customer must ensure the necessary technical requirements at his own expense and grant Necara GmbH electronic access to the software after appropriate prior notice.
(4) Necara GmbH may demand additional costs as a result of the software being modified, used outside the specified environment or used incorrectly. It may claim reimbursement of expenses if no defect is found and the customer had not made the complaint without negligence. The burden of proof lies with the customer § 254BGB applies accordingly.
(5) If Necara GmbH finally refuses subsequent performance or this finally fails or is not reasonable for the customer, the customer can either withdraw from the contract or reduce the remuneration accordingly and additionally demand compensation or reimbursement of expenses in accordance with § 13. Claims expire in accordance with § 14.§ 12 Legal deficiencies
(1) Necara GmbH guarantees that the contractual use of the software by customers does not conflict with the rights of third parties. In the event of legal defects, NECARAGmbH guarantees that, at its discretion, it provides the customer with legally correct use of the software or equivalent software.
(2) The customer shall immediately inform Necara GmbH in writing if third parties assert property rights (e.g. copyright or patent rights) in the software. The customer authorizes Necara GmbH to resolve the dispute with the third party alone. As long as Necara GmbH makes use of this authorization, the customer may not, on its own initiative, accept the claims of the third party without Necara GmbH's consent; Necara GmbH then defends the third party's claims at its own expense and provides the customer free of charge of all claims associated with the defense of these claims, provided that they do not result in breach of duty by the customer (e.g. the use of the programs in breach of contract).
(3) Section 11 (2), Section 11 (4) and Section 11 (5) apply mutatis mutandis. § 13 Liability
(1) Necara GmbH shall pay compensation or reimbursement of futile expenses, irrespective of the legal basis (e.g. from legal and transaction-like obligations, material and legal defects, breach of duty and tort), only to the following extent:
a) Liability for intent and warranty is unlimited.
b) In the event of gross negligence, Necara GmbH is liable in the amount of typical and foreseeable damage upon conclusion of the contract.
c) In the event of a breach of such an essential obligation that jeopardizes the achievement of the purpose of the contract, Necara GmbH is liable in the amount of the typical damage foreseeable at the time of conclusion of the contract. In abstract, essential contractual obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance a contracting party may regularly rely.
d) In the event of injury to life, body and health and in the event of claims under the Product Liability Act, the legal regulations apply without restrictions.
e) Liability is otherwise excluded.
(2) Necara GmbH remains open to the objection of contributory fault. In particular, the customer has the obligation to back up data and defend against malware according to the current state of the art.§ 14 Statute of limitations
(1) The limitation period is a) for claims for repayment of remuneration arising from withdrawal or reduction of one year after receipt of the software, but for duly reported defects not less than three months from the submission of the effective declaration of withdrawal or reduction;
b) in the case of other claims arising from material defects, one year; c) in the case of claims not based on material or legal defects, two years; the period begins at the time when the customer became aware of the circumstances giving rise to the claim or had to obtain it without gross negligence.
d) The limitation period shall apply at the latest upon expiry of the maximum periods specified in Section 199 BGB.
(2) However, in the case of damages and expenses arising from intent, gross negligence, guarantee, malice and in the cases specified in § 13 (1) d), the statutory limitation periods always apply. Section 15 Confidentiality and Data Protection
(1) The contracting parties agree to keep confidential all objects (e.g. software, documents, information) received or become known to them by the other contractual partner before or during the execution of the contract, which are legally protected or contain business or trade secrets or are described as confidential, beyond the end of the contract, unless they are publicly known without breaching the confidentiality obligation. The contractual partners store and secure these items in such a way that access by third parties is excluded.
(2) The customer only makes the objects of the contract available to employees and other third parties who need access to perform their duties. He informs these people that the objects need to be kept secret.
(3) Necara GmbH processes the customer's data required to process the transaction in compliance with data protection regulations. Necara GmbH may name the customer as a reference customer after successful completion of the services § 16 Training
(1) At Necara GmbH's option, training is carried out at the customer's site or at another location to be determined in consultation with the customer. During training at the customer's site, the customer will provide appropriate premises and technical equipment after consultation with Necara GmbH. During training elsewhere, the customer rents the premises and makes the necessary hardware and software available on site. During training at Necara GmbH, she provides the premises and the necessary hardware. General terms and conditions as of: Nov 2016 8 | 8
(2) Necara GmbH may cancel a training appointment for good cause. Necara GmbH will notify the customer of the cancellation of an appointment in good time and offer replacement dates.
(3) In the event of justified dissatisfaction on the part of the customer, Necara GmbH has the opportunity to remedy § 17 Amendments to the general terms and conditions, service descriptions and prices
(1) An amendment to these terms and conditions is permitted insofar as this does not affect essential provisions of the contractual relationship and this is necessary to adapt to developments which were unforeseeable at the time of conclusion of the contract and whose failure to take into account would significantly disturb the balance of the contractual relationship. Significant regulations include, in particular, those relating to the nature and scope of the contractually agreed services and the duration, including the rules for termination. Adjustments or additions to the terms and conditions may also be carried out insofar as this is necessary to eliminate difficulties in the execution of the contract due to regulatory gaps arising after the conclusion of the contract. This applies in particular if the case law changes and one or more clauses of these terms and conditions are affected.
(2) Intended changes to the terms and conditions, which are not exclusively caused by an increase in sales tax or by legal regulations, will be notified to the customer in writing at least six weeks before they take effect. The customer has the right to extraordinary termination at the time the amendments take effect. If the customer does not cancel in writing within six weeks of receipt of the change notification, the changes become part of the contract at the time they take effect. The customer will be particularly informed of this consequence in the notification of change.§ 18 Final provisions
(1) Amendments and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. To process the written form, transmission in text form, in particular by fax or e-mail, is also sufficient.
(2) The law of the Federal Republic of Germany applies to the exclusion of the UN sales law. The place of fulfilment and jurisdiction for all disputes arising from and in connection with this contract in the case of contracts with merchants is the registered office of Necara GmbH.
(3) Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
General terms and conditions of Necara GmbH
§ 1 Validity of contract conditions (1)
(1) These general terms and conditions (GTC) govern the contractual relationships of NeCara GmbH, Max-Planck-Straße 2, 55218 Ingelheim with its customers. (2) Even if this is not referred to again when concluding similar contracts, the general terms and conditions of Necara GmbH apply exclusively in the version valid when the customer submits the declaration, unless the contractual partners agree otherwise in writing. (3) Deviating from these terms and conditions in whole or in part. Terms and conditions do not become part of the contract, even if Necara GmbH does not provide them with expressly refuts.§ 2 Conclusion of contract
(1) Offers from Necara GmbH are subject to change and non-binding, unless the offer is described as binding in writing. A legal obligation is only concluded through a contract signed by both parties or by written order confirmation from NeCara GmbH, and also because Necara GmbH begins providing the services in accordance with the contract after the order has been placed. Necara GmbH may request written confirmations of oral contract declarations from the customer. (2) The customer is bound by declarations for the conclusion of contracts (contract offers) for four weeks.
§ 3 Subject matter of contract, scope of services (1)
The subject of these contractual conditions is the provision of services, the temporary licensing of software, and the granting of rights of use in accordance with § 4, as well as the services ordered with the purchase, e.g. training in accordance with § 15. (2) Before concluding the contract, the customer has verified that the specification of the software meets his wishes and needs. He is aware of the main functional features and conditions of the software. (3) The scope, type and quality of the deliveries and services is the mutually signed contract or order confirmation from Necara GmbH, otherwise the offer from Necara GmbH. Other information or requirements only become part of the contract if the contractual partners agree to this in writing or DieCara GmbH has confirmed them in writing. Subsequent changes to the scope of services require a written agreement or written confirmation by Necara GmbH. (4) Product descriptions, illustrations, test programs, etc. are service descriptions, but not guarantees. A guarantee requires a written declaration by the management of Necara GmbH. (5) Necara GmbH provides all deliveries and services in accordance with the state of the art. § 4 Service content when providing services (1)
Necara GmbH provides the service via the Internet on a server infrastructure operated by itself. It offers a platform as a service (PaaS) on which customers can create their own solutions for software as a service (SaaS). Necara GmbH offers both PaaS and SaaS solutions as cloud services. (2) Necara GmbH will create, provide and maintain the connection between the server and the Internet so that the data stored on the server can be forwarded to the retrieving computer at any time and without interference by external computers on the Internet (clients) using the protocols commonly used on the Internet and, with appropriate functionality of the website, customer data also are storable. (3) Subject to paragraph (4), Necara GmbH guarantees that the data stored by the customer in accordance with the contract can be accessed by the customer around the clock. However, NecaraGmbH assumes no responsibility for the success of the respective access to the service, unless networks operated exclusively by Necara GmbH or its immediate contractors, including their interfaces to third-party networks, are used. (4) In order to optimize and improve the performance of the systems provided for the provision of the services, Necara GmbH provides maintenance windows, which are generally used outside normal business hours, usually between 00:00 and 06:00 CET. During these maintenance periods, Necara GmbH may shut down its technical equipment to the extent necessary and to a limited extent. The customer will be informed in good time by e-mail that maintenance has been carried out outside the specified maintenance window. (5) Necara GmbH owes server availability of at least 98% during core hours and at least 96% availability outside core hours. The above minimum values are calculated on a monthly basis.5 Support for the software by Necara GmbH
(1) Unless there are individual agreements with the customer, DieCara GmbH will respond to support inquiries from customers sent by email to info@necara.degerichtet in accordance with the response times of the following categories:
a) In the event of critical problems, if the entire software or significant parts of it fail, making use completely or almost completely impossible, Necara GmbH will respond within 48 hours.
b) In the event of problems, if the use of the software is impaired to such an extent that reasonable work with the software is no longer possible or is only possible with disproportionate effort, Necara GmbH will respond within two working days
c) For all other inquiries, in particular regarding non-critical errors, inquiries about using the software or requests for functional enhancements, the provider will respond within four working days.
(2) In the case of a support request, the customer is obliged to describe problems in detail, possibly including screenshots, an error message or log files, and to name the system and environment on which the problem occurs. § 6 Customer rights to the software when delivering standard software
(1) The PaaS solution is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyright rights to the software and other objects that Necara GmbH provides or makes available to the customer in the context of contract initiation and execution are exclusively owned by Necara GmbH in the relationship between the contractual partners. Insofar as third parties own the rights, NecaraGmbH has corresponding exploitation rights.
(2) He is entitled to the intellectual property, in particular copyrights, to SaaS applications that the customer creates independently using the PaaS solution.
(3) With full payment of the fee in accordance with § 9 (1), the customer receives the non-exclusive, non-transferable and non-sub-licensable right to use the PaaS software to the extent agreed by the contract.
(4) The customer may only decompile the PaaS software interface information into the restrictive section 69e UrhG and only after he has notified Necara GmbH of his plan in writing and has asked for the necessary interface information to be provided with a period of at least two weeks. Section 15 applies to all knowledge and information that the customer receives about the software as part of decompilation. Prior to any involvement of third parties, he provides Necara GmbH with a written statement from the third party that the third party is directly committed to Necara GmbH to comply with the rules set out in § 5 and § 15.
(5) All other exploitation activities, in particular rental, rental and distribution in physical or intangible form, use of PaaS software through and for third parties (e.g. through outsourcing, data center activities, application service provision) are prohibited without the prior written consent of Necara GmbH.
(6) Contractual objects, documents, suggestions, test programs, etc. of Necara GmbH, which are made available to the customer before or after conclusion of the contract, are considered intellectual property and as a business and trade secret of Necara GmbH. They may not be used in any way without written permission from Necara GmbH and must be kept secret in accordance with § 15 § 7 Performance period, delays, place of performance
(1) Information on delivery and performance dates is non-binding, unless specified as binding in writing by Necara GmbH. Necara GmbH can provide general terms and conditions as of: Nov 2016 4 | 8 partial services, provided that the delivered parts can be usefully used by the customer.
(2) Delivery and performance periods are extended by the period in which the customer is in default of payment under the contract and by the period in which Dienecara GmbH is prevented from delivering or providing services due to circumstances for which it is not responsible, and by a reasonable start-up period after the impediment has ended. These circumstances include force majeure and industrial action. Deadlines are also considered extended by the period in which the customer does not provide cooperation in breach of contract, e.g. does not provide information, does not provide access, does not provide a provision or does not provide employees.
(3) If the contractual partners subsequently agree on other or additional services that have an effect on agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and deadlines set by the customer must be made in writing in order to be effective. A period of grace must be appropriate. A period of less than two weeks is only appropriate in cases of particular urgency.
(5) The place of performance of services is the place where the service is to be provided. In addition, the place of performance for all services arising from and in connection with this contract is the registered office of Necara GmbH. § 8 Duration and termination
(1) Contracts with customers are concluded for a specific or indefinite period of time. The deadline for customers is one month to the end of the month, for Necara GmbH three months to the end of the quarter. Contracts concluded for a specific period of time can be terminated for the first time at the end of the fixed period. If a contract concluded for a specific period is not terminated at the end of the fixed period, it will continue for an indefinite period of time.
(2) The right to cancel for good cause remains unaffected. An important reason exists in particular if the customer violates Necara GmbH's rights of use by using the software beyond what is permitted under this contract and does not remedy the infringement within a reasonable period of time in response to a warning from Necara GmbH.
(3) The termination must be made in text.§ 9 Remuneration, Payment
(1) The agreed remuneration is due without deduction for the agreed service period at the start of the billing period (in the case of training after the training has been completed) and after receipt of the invoice by the customer and is payable within 14 days.
(2) If the customer is in default of payment of the remuneration for two months, Dienecara GmbH has the right to block the customer's access to the PaaS platform.
(3) In the absence of any other agreement, the respective price and conditions list of NecaraGmbH.General terms and conditions as of: Nov 2016 5 | 8
(4) Travel expenses, expenses, accessories, shipping costs and telecommunications costs are to be paid in addition according to expenses. Additional services required by the customer (e.g. advice and assistance with program installation) will be invoiced according to Necara GmbH's current price list.
(5) Statutory sales tax is added to all prices.
(6) The customer can only offset claims that are undisputed or legally established by Necara GmbH. Except in the area of Section 354a HGB, the customer may only assign claims arising from this contract to third parties with the prior written consent of NecaraGmbH. The customer is only entitled to a right of withholding or the plea of an unfulfilled contract within this contractual relationship.§ 10 Obligations of the customer
(1) The customer is obliged to have all delivery items delivered by Necara GmbH immediately delivered or made available in accordance with commercial law regulations (§ 377 HGB) and to report identified defects in writing with a detailed description of the fault. The customer thoroughly tests each module 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.
(2) The customer takes appropriate precautions in the event that the program does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular review of results, emergency planning). It is his responsibility to ensure the functioning of the program's working environment.§ 11 Material deficiencies
(1) The software has the agreed quality and is suitable for the contractually required and, in the absence of agreement, for normal use. It meets the criteria of practical suitability and has the usual quality of software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation, etc., is not a defect. An insignificant reduction in quality is not taken into account.
(2) In the event of material defects, Necara GmbH can first correct them. Because of a defect, at least three attempts to correct the problem are acceptable. To take over from the customer an equivalent new program version or the equivalent previous program version without the fault, if this is reasonable for him.
(3) The customer supports Necara GmbH in analyzing errors and resolving defects, in particular by specifically describing problems that arise, providing Necara GmbH with comprehensive information and granting Necara GmbH the time and opportunity necessary to rectify the defect. Necara GmbH may, at its option, rectify the defect either locally or at its business premises. Necara GmbH can also provide services through remote maintenance. The customer must ensure the necessary technical requirements at his own expense and grant Necara GmbH electronic access to the software after appropriate prior notice.
(4) Necara GmbH may demand additional costs as a result of the software being modified, used outside the specified environment or used incorrectly. It may claim reimbursement of expenses if no defect is found and the customer had not made the complaint without negligence. The burden of proof lies with the customer § 254BGB applies accordingly.
(5) If Necara GmbH finally refuses subsequent performance or this finally fails or is not reasonable for the customer, the customer can either withdraw from the contract or reduce the remuneration accordingly and additionally demand compensation or reimbursement of expenses in accordance with § 13. Claims expire in accordance with § 14.§ 12 Legal deficiencies
(1) Necara GmbH guarantees that the contractual use of the software by customers does not conflict with the rights of third parties. In the event of legal defects, NECARAGmbH guarantees that, at its discretion, it provides the customer with legally correct use of the software or equivalent software.
(2) The customer shall immediately inform Necara GmbH in writing if third parties assert property rights (e.g. copyright or patent rights) in the software. The customer authorizes Necara GmbH to resolve the dispute with the third party alone. As long as Necara GmbH makes use of this authorization, the customer may not, on its own initiative, accept the claims of the third party without Necara GmbH's consent; Necara GmbH then defends the third party's claims at its own expense and provides the customer free of charge of all claims associated with the defense of these claims, provided that they do not result in breach of duty by the customer (e.g. the use of the programs in breach of contract).
(3) Section 11 (2), Section 11 (4) and Section 11 (5) apply mutatis mutandis. § 13 Liability
(1) Necara GmbH shall pay compensation or reimbursement of futile expenses, irrespective of the legal basis (e.g. from legal and transaction-like obligations, material and legal defects, breach of duty and tort), only to the following extent:
a) Liability for intent and warranty is unlimited.
b) In the event of gross negligence, Necara GmbH is liable in the amount of typical and foreseeable damage upon conclusion of the contract.
c) In the event of a breach of such an essential obligation that jeopardizes the achievement of the purpose of the contract, Necara GmbH is liable in the amount of the typical damage foreseeable at the time of conclusion of the contract. In abstract, essential contractual obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance a contracting party may regularly rely.
d) In the event of injury to life, body and health and in the event of claims under the Product Liability Act, the legal regulations apply without restrictions.
e) Liability is otherwise excluded.
(2) Necara GmbH remains open to the objection of contributory fault. In particular, the customer has the obligation to back up data and defend against malware according to the current state of the art.§ 14 Statute of limitations
(1) The limitation period is a) for claims for repayment of remuneration arising from withdrawal or reduction of one year after receipt of the software, but for duly reported defects not less than three months from the submission of the effective declaration of withdrawal or reduction;
b) in the case of other claims arising from material defects, one year; c) in the case of claims not based on material or legal defects, two years; the period begins at the time when the customer became aware of the circumstances giving rise to the claim or had to obtain it without gross negligence.
d) The limitation period shall apply at the latest upon expiry of the maximum periods specified in Section 199 BGB.
(2) However, in the case of damages and expenses arising from intent, gross negligence, guarantee, malice and in the cases specified in § 13 (1) d), the statutory limitation periods always apply. Section 15 Confidentiality and Data Protection
(1) The contracting parties agree to keep confidential all objects (e.g. software, documents, information) received or become known to them by the other contractual partner before or during the execution of the contract, which are legally protected or contain business or trade secrets or are described as confidential, beyond the end of the contract, unless they are publicly known without breaching the confidentiality obligation. The contractual partners store and secure these items in such a way that access by third parties is excluded.
(2) The customer only makes the objects of the contract available to employees and other third parties who need access to perform their duties. He informs these people that the objects need to be kept secret.
(3) Necara GmbH processes the customer's data required to process the transaction in compliance with data protection regulations. Necara GmbH may name the customer as a reference customer after successful completion of the services § 16 Training
(1) At Necara GmbH's option, training is carried out at the customer's site or at another location to be determined in consultation with the customer. During training at the customer's site, the customer will provide appropriate premises and technical equipment after consultation with Necara GmbH. During training elsewhere, the customer rents the premises and makes the necessary hardware and software available on site. During training at Necara GmbH, she provides the premises and the necessary hardware. General terms and conditions as of: Nov 2016 8 | 8
(2) Necara GmbH may cancel a training appointment for good cause. Necara GmbH will notify the customer of the cancellation of an appointment in good time and offer replacement dates.
(3) In the event of justified dissatisfaction on the part of the customer, Necara GmbH has the opportunity to remedy § 17 Amendments to the general terms and conditions, service descriptions and prices
(1) An amendment to these terms and conditions is permitted insofar as this does not affect essential provisions of the contractual relationship and this is necessary to adapt to developments which were unforeseeable at the time of conclusion of the contract and whose failure to take into account would significantly disturb the balance of the contractual relationship. Significant regulations include, in particular, those relating to the nature and scope of the contractually agreed services and the duration, including the rules for termination. Adjustments or additions to the terms and conditions may also be carried out insofar as this is necessary to eliminate difficulties in the execution of the contract due to regulatory gaps arising after the conclusion of the contract. This applies in particular if the case law changes and one or more clauses of these terms and conditions are affected.
(2) Intended changes to the terms and conditions, which are not exclusively caused by an increase in sales tax or by legal regulations, will be notified to the customer in writing at least six weeks before they take effect. The customer has the right to extraordinary termination at the time the amendments take effect. If the customer does not cancel in writing within six weeks of receipt of the change notification, the changes become part of the contract at the time they take effect. The customer will be particularly informed of this consequence in the notification of change.§ 18 Final provisions
(1) Amendments and additions to the contract must be made in writing to be effective. The written form requirement can only be waived in writing. To process the written form, transmission in text form, in particular by fax or e-mail, is also sufficient.
(2) The law of the Federal Republic of Germany applies to the exclusion of the UN sales law. The place of fulfilment and jurisdiction for all disputes arising from and in connection with this contract in the case of contracts with merchants is the registered office of Necara GmbH.
(3) Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
