1. These general terms and conditions apply exclusively to transactions with businesses, legal entities organised under public law and special funds under public law within the meaning of § 310 (1) of the German Civil Code (BGB). Terms and conditions of the customer that conflict or deviate from these terms and conditions shall only apply if expressly agreed by the contractor in writing.
2. These terms and conditions also apply to all future business transactions with the customer insofar as they are legal transactions of a related nature.
3. Any individual agreements made with the buyer (including additional or supplementary agreements or amendments to these terms) shall always take precedence over these terms and conditions. Subject to evidence to the contrary, a written contract or written confirmation on our part shall be authoritative for the content of such agreements.
§ 2 Performance
1. Unless otherwise stated in the quote, quotations calculated on person days are also the performance of a work according to § 631 BGB. Person days mentioned are only internal estimates for information. In any case, we assume the risk of the defect-free work and calculate the stated amount regardless of the actual number of person days required without further evidence.
2. After written approval by the buyer, the detailed requirements document or descriptions of individual functions (“user stories”), which are to be drawn up by us as part of the contract, will replace the service description in the quotation.All documents such as requirement documents, function descriptions and documentation are written by us exclusively in English.
3. All documents such as requirement documents, function descriptions and documentation are written by us exclusively in English.
4. The licensing of the PropOps Cloud and Apps and other services are offered either as a flat rate or with verification, depending on the agreement.
5. We use subcontractors for the performance of the work. In particular, but not exclusively, Feil, Feil & Feil GmbH and FFUF Manila Inc. (Philippines). At the buyer’s written request, we will disclose all other subcontractors involved and limit ourselves to subcontractors agreed with the buyer by means of a written assurance.
§ 3 Offer and Conclusion of Contract
If an order can be regarded as a offer pursuant to § 145 BGB, we may accept it within two weeks.
§ 4 Documents provided
We reserve ownership and copyright of all documents – including those in electronic form – provided to the customer related to placing the order, such as estimates, drawings etc. These documents and records must not be made accessible to a third party unless we grant our explicit permission in written form to the customer. If we do not accept the customer’s offer within the time limit of § 2, these documents must be returned to us immediately.
§ 5 Pricing and payment
1. Unless otherwise agreed in writing, our prices include project management, planning, design, requirement documents, quality assurance and interface documentation plus VAT at the currently applicable rate. The licensing of the PropOps Cloud and apps, services (such as hosting, operation, updates, support and monitoring), as well as hardware rental, mobile phone tariffs and installation in third-party systems, including those of the customer, will be billed separately.
2. Payment of the purchase price has to be made exclusively to the accounts stated in the quotation and invoices. The deduction of a discount is only allowed if this is agreed to specifically and in writing.
3. Unless otherwise agreed in writing, 30% of the purchase price of each order item is due when the order is confirmed before the start of work, a total of 90% of each order item when the work is handed over and the remaining 10% when the work is accepted in writing by the buyer. All amounts are net and payable within 10 days. Default interest shall be calculated in the amount of 8% above the relevant annual base rate. We reserve the right to claim higher default damages.
4. PropOps and services are invoiced at the end of each month. Unless otherwise specified, both services will be used for an indefinite period of time for a period of at least 1 year. Both we and the customer have the right to cancel further services 3 months in advance before the end of the year.
§ 6 Right of retention
The customer is authorised to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
§ 7 Delivery period
1. The beginning of the delivery period as indicated by us requires the prompt and proper fulfilment of the obligations on the part of the customer. Subject to objection to the unfulfilled contract.
2. If the customer is in default of accepting delivery or if it knowingly infringes other obligations to cooperate, we reserve the right to demand adequate compensation for any and all damages resulting, including any additional expenditure. A default occurs if the service is rejected without no reason and not reported in writing within 3 weeks after the delivery of the service. Further claims remain reserved. If the above requirements are met, the risk of accidental loss or deterioration of the delivered item is transferred to the customer at the moment in which the acceptance or payment of the item is delayed.
§ 8 Reservation of title
1. We retain ownership of the property delivered until all claims from the delivery contract are paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to reclaim the goods if the customer breaches these terms.
2. For as long as the property has not been transferred, the customer must immediately inform us in writing if the supplied work is seized or subject to any other actions by third parties. If the third party is unable to reimburse us for the judicial and extrajudicial costs of any lawsuit pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the losses incurred.3. The customer is entitled to resell the reserved goods in the ordinary course of business. The customer cedes to us any claims by the new owner arising from the resale of the goods in the amount of the mutually agreed final invoice amount (including VAT). This assignment shall apply regardless of whether the purchased goods have been resold before or after being processed. The customer remains authorised to collect the debt even after assignment thereof. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in arrears, and in particular no petition is filed for the commencement of insolvency proceedings or suspended payments.4. We undertake to release the securities we are entitled to at the customer’s request if their value exceeds the receivables to be secured by more than 20%.
§ 9 Warranty, Notice of Defect as well as Recourse/Manufacturer’s Recourse
1. The customers’ warranty rights presuppose that it has properly fulfilled its obligation under § 377 HGB (German Commercial Code) with respect to inspection and notification of defects.
2. Claims for defects expire 12 months after delivery of the work supplied by us. The statutory period of limitation applies to claims for damages in the event of intent and gross negligence, as well as injury to life, body and health caused by an intentional or negligent breach of obligation on the part of the user.
3. If, despite all due care, the delivered work shows a defect, we must always be given the opportunity for subsequent performance within a reasonable period of time. Claims for recourse remain unaffected by the above regulation without restriction.
5. Claims for defects will not be substantiated in the case of only insignificant deviations from the agreed quality and/or only insignificant impairment of usability. The same applies to incompatibilities with other hardware or software, the compatibility of which is not part of the service description. This applies in particular to new versions of hardware and software from third parties that were not yet released at the time of the quotation. If improper repairs or modifications are made by the customer or third parties, no defect claims can be made for these or for any damages resulting from these.5. Any recourse claims on the part of the customer against us shall exist only to the extent that the customer has not entered into any agreements with its customers going beyond the mandatory statutory claims based on defects. The scope of recourse claims by the customer against the supplier are further regulated by Section 5.
§ 10 Miscellaneous
1. This contract and the entire legal relations of the parties are subject to the laws of the Federal Republic of Germany, excluding the UN Sales Convention (CISG).
2. The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is Ludwigsburg, unless otherwise stated in the order confirmation.
3. All agreements entered into by the parties for the purpose of the fulfilment of this contract are set forth in this contract in writing.