GENERAL TERMS AND CONDITIONS OF BUSINESS OF GSI OFFICE MANAGEMENT GMBH
Products, services and software licences
A Contractual foundations
These Terms and Conditions of Business apply to all contractual relationships and pre-contractual negotiations with our customers, regardless of the nature and scope of the service as part of ongoing and future business relationships.
Our Terms and Conditions of Business apply exclusively.
Any conflicting terms and conditions of business of our contractual partners or third parties are only valid if GSI explicitly agrees to their validity in writing. If you do not agree to them, you must advise GSI in writing immediately. In this case, we reserve the right to withdraw our offer without such action giving rise to any claims against us of any kind. We explicitly reject any reference to your own terms and conditions of business contained in any form.
3 Conclusion of the contract and written form
As a general rule, we will only enter into a contractual obligation if the nature and scope of the service and consideration have been defined in writing by both parties. Later verbal changes and additions will only be effective if they are subsequently confirmed in writing. The same applies to declarations of intent, particularly objections, reminders and complaints relating to the contractual relationship. Both parties to the contract must reserve the right in writing to impose contractual penalties. This clause can only be suspended by means of an explicit written agreement.
B Provision of software
4 Licence and scope of use
In its capacity as the rights holder, GSI grants the customer the non-transferable, non-exclusive right to use the software and documentary material specified in the order and/or invoice for an indefinite period. Contractual use is defined as follows. Copying instructions or data for a program by entering them at a terminal, transferring them from storage units or data carriers to the agreed hardware for the purpose of processing, as well as making a copy in machine-readable format as a data backup. The area of deployment, performance and all other specific properties of the program are defined exclusively in the product specification enclosed with the offer. Details in brochures and/or advertising material are non-binding, particularly because the products are subject to constant modification and the information may also relate to future developments. The customer acquires the right to use the software at as many workstations connected in a local network as he has paid licence fees for. The assessment basis for this is the number of licences listed in the associated invoice as well as any special agreements that may have been made (volume discounts, unrestricted licences, etc.). Workstations on the network also include home office stations forming part of the network, portable computers temporarily connected to the network as well as remote work desks. If such work desks merely serve as a substitute for workstations connected to the local network, no additional work desk licence is required for them. If the agreed number is exceeded, error-free operation cannot be guaranteed. Use of the software on portable computers is also deemed to be simultaneous operation.
5 Property rights
GSI indemnifies the customer against all claims asserted against him in connection with the use of the software due to breach of copyrights, patents or other intellectual property rights, provided
- the customer informs GSI immediately of all charges of infringements raised against him.
- the customer does not acknowledge any such claims without the agreement of GSI.
- the customer permits GSI to conduct all negotiations and proceedings and gives GSI the necessary support although all costs associated with the negotiations and any court cases will be for GSI’s account.
The obligation described above will not apply if the breach of copyright or patent or any other legal impairments are due to the fact that the software or parts of it have been used with devices or programs not supplied or their combined use has not been agreed by GSI. The above provisions define GSI’s entire liability in connection with the breach of copyrights, patents or other intellectual property rights. In the event of claims already asserted or to be expected due a breach of copyrights, patents or other intellectual property rights, GSI will be entitled to change or replace the devices or programs in order to prevent any breach. The performance of the software system supplied by GSI may not be reduced as a result. If use of the software or parts of it is forbidden on the basis of a court order or in GSI’s judgment, there is a threat of a lawsuit due to a breach of property rights, GSI may opt at its own expense and excluding all other rights of the customer to:
- Change the programs in such a way that they no longer breach any property rights;
- Procure the customer’s right to continue using the systems;
- Replace the relevant programs with programs that do not breach any property rights and which either meet the customer’s requirements or are equivalent to the programs replaced;
- Withdraw the programs or parts of them and refund the (if applicable pro rata) purchase price to the customer after deducting an appropriate amount for their use and their depreciation in value, less any damages incurred by the customer as a result.
6 Title and copyrights
The software given to the customer remains the property of GSI together with all documentation. GSI remains the owner of all copyrights and rights of use to the programs given to the customer including associated documentary material in each case even if the customer changes them or combines them with his own programs and/or those of a third party. In the case of such changes or combinations and if copies are made, the customer will attach a corresponding copyright notice. Changes and extensions to the program code carried out at the request and expense of the customer, become the property of GSI and can be made available to other customers. The rights to use program enhancements will be assigned to GSI. The buyer hereby accepts the assignment. The customer is only entitled to change the program code with the prior written agreement of GSI. Agreement may only be refused for good cause. The customer will provide GSI with a copy of such changes on a data carrier or in printed form together with all necessary information. Any exploitation of the changed version of the program requires the customer’s agreement. If changed programs or different programs not procured by GSI are used by the customer or third parties, and the working of the system is impaired as a result, GSI will not be liable for any damage incurred.
The customer is obliged to pay a one-off licence fee for use of the software for an indefinite period. The level of the licence fee will be based on the current price list or any separate agreements reached as shown in the order or invoice. The licence fee will be due immediately upon delivery of the software with no deductions. The fee for maintaining the software is due on delivery and will be charged every six months in advance. All other services charged in connection with this contract will be billed monthly but no later than on provision of the service. Unless otherwise agreed, the customer will make payments immediately to a bank account belonging to GSI. If the customer falls into arrears by more than 14 days with respect to due payments, GSI will be entitled to charge default interest at the rate of 8%.
8 Obligations of the customer
The programs and documentation material entrusted to the customer may not be made available in part or in whole to third parties if there are grounds for suspecting possible misuse. The customer may not alter GSI’s markings, copyright and proprietary notices to the programs in any shape or form. The customer must ensure that all program material, documentation, operating instructions and knowledge specific to the programs is kept confidential with respect to the outside world. This includes any documents which have been made available to the customer in fulfilment of this contract, but not including advertising material and its content. He must obligate his employees to maintain the same level of confidentiality. This duty of confidentiality also applies beyond the term of the contract, regardless of whether the contractual relationship was terminated prematurely for any particular reason. The duty of confidentiality also covers a ban on publishing extracts from the material or quotes. Any breach of the duty of confidentiality is only permitted with GSI’s prior written approval. The customer undertakes to reimburse GSI for any damages incurred by a breach of the above provisions in the event of gross negligence, to a maximum amount equivalent to the price of the licence, except in the case of wilful action. The customer is obliged to independently ensure sufficient data backups after prior warning by GSI before a GSI employee makes changes to the configurations on the customer’s live server.
GSI can terminate the contract with immediate effect if the customer is more than two months in arrears with the agreed payment of the licence fee, and/or the customer – after a written warning – continues to breach a provision of these General Terms and Conditions of Business or other rules contained in separate contracts. The customer is only entitled to terminate this contract because GSI is delayed in providing performance or due to defects that cannot be remedied if GSI has failed to meet its obligations and if he has previously issued GSI with a written warning and a suitable period of time has elapsed in which the breach of contract complained about has not been remedied. Within a deadline of five days after termination of the licence, the customer will destroy all programs, copies, associated material including any modified or combined programs, unless they have to be retained due to statutory regulations. The customer will confirm their destruction or retention due to statutory provisions within 30 days without being requested to do so. He will also grant GSI the right to check whether this provision is adhered to.
C Software extension and adaptation
GSI will extend and adapt the software supplied as defined in the order. The customer will provide GSI with all the information required to produce the software in a clear, written format and at GSI’s request will also explain it verbally. If the customer discovers that requirements analyses, performance specifications or statements of requirements do not match the requirements actually demanded by the customer, he will immediately notify GSI of this fact in writing and submit alternative proposals. The parties will then decide by mutual agreement on adding to or altering the requirements. The customer will meet all his duties of cooperation specified here free of charge. If GSI establishes that details or information provided by the customer are erroneous, incomplete or not appropriate for carrying out the order, it will immediately draw the customer’s attention to this fact in writing. The customer will take an immediate decision on any change resulting from such notice to the extent that it relates to the process of writing the software. As soon as the contract has been concluded, each party will nominate a competent person authorised to bring about decisions in connection with the production of the software.
11 Requests for changes
As long as the software has not been delivered by GSI, the customer can request a change in the requirements in writing at any time as long as the request for a change is in reasonable proportion to the overall order and is based on objective considerations. GSI will enact this request for a change unless it is unreasonable to expect it to do so due to the specific operating situation. If such a request for a change by the customer leads to a situation where the contractual balance between performance and consideration is more than insubstantially impaired, the contracting parties will immediately agree a written modification of the contractual arrangements with regard to the essential content of the contract (particularly remuneration, lead time, etc.). If the parties are unable to reach an agreement within four weeks from receipt of the request for a change by GSI, the order will be carried out without taking the request for a change into consideration.
D Delivery, approval, warranty and liability
12 Delivery, schedule and installation
As a general rule, delivery dates and delivery periods represent non-binding guidelines in terms of the schedule unless they have been explicitly agreed in writing as fixed dates.
As a general rule, a standard version of the software to be supplied will be installed. The standard software will only be extended or modified if this has been specified accordingly in the order in writing. Installation will be performed in consultation with the customer. For this purpose, the customer will nominate a contact in writing as soon as the contract has been concluded. Immediately upon conclusion of the contract, the customer will hand over to GSI all the documentation from which GSI can see the current configuration of the hardware / operating system platform which the customer is currently using. If GSI establishes that the configuration needs to be changed, this change must be carried out before installation of the software at the expense and risk of the customer. The customer is obliged to provide all the cooperative services required to implement the software. In particular, this includes facilitating access to the hardware as well as free provision of test data and computing time in accordance with GSI’s requirements and the free provision of an expert employee who can carry out the necessary tests or review adjustments. On conclusion of the contract, GSI will provide the customer with a copy of the latest version of the licensed product generally offered by GSI on an appropriate data carrier, sent to the address specified as the delivery address. GSI reserves the right to adapt the specifications of the licensed product, e.g. to meet technical developments, changes to the laws or future market requirements. A print-out of the operating manual will be supplied with the software. It serves to learn how to run the program as well as to answer questions in this connection. The operating manual remains the property of GSI and may only be used by the customer for the purpose agreed. If the software or manual is lost, GSI will supply a replacement copy at cost price. GSI only guarantees that the software will run faultlessly on hardware systems which it has approved. Approval will be deemed to have been issued when GSI installs the program on a hardware system belonging to the customer.
After installation and testing, GSI will inform the customer in writing that the parts of the software that have been extended or modified by comparison with the standard version are fully functional and it will request the customer to issue its acceptance. The customer can thereupon test the software. If the conditions for acceptance have been met, the customer will immediately inform GSI in writing of its acceptance, but no later than within 30 days of GSI’s written notification. If the customer does not issue acceptance, GSI will be entitled to set a deadline of 10 days to issue confirmation of acceptance. The clock starts running on receipt of the letter by the customer. Acceptance will be deemed to have been issued if the customer fails to sufficiently specify in writing the reasons for refusing acceptance before the deadline expires.
GSI will provide a guarantee for a period of 12 months from the time of handover that the software will essentially meet the description in the manual or documentation with regard to the way in which it works. GSI will only be liable for promised features if any such promise is given in the form of an explicit assurance in writing. GSI points out that the current state of the art does not permit computer software to be produced with zero errors. If an error occurs in the software, the customer will be obliged to report it in writing to GSI within 2 weeks. GSI will then be free to remedy the error within an appropriate period of time by making a maximum of three replacement deliveries or performing remedial work a maximum of three times. If GSI is unsuccessful in remedying the fault, the customer can choose between reducing the purchase price or cancelling the contract. If the program documentation gives unambiguous information on how to analyse the problem and clear instructions on how to remedy it, and if the fault is therefore one which is based on faulty operation, GSI will be entitled to demand reimbursement of its expenses incurred in investigating the claim. The guarantee covers the remedying of errors in the program code, but not the removal of faults occurring as a result of external effects for which GSI is not responsible, operating errors or changes not carried out by GSI. An inconsequential reduction or restriction in the usability or performance of the program does not constitute an error. If it is genuinely impossible to remedy a fault or it is unreasonable to expect GSI to do so on economic grounds, GSI will be entitled to install a workaround if this leads to an acceptable solution of the problem. GSI gives no guarantee that the software will meet the customer's special requirements of that it will work with the customer's programs or hardware installed on the customer's premises.
GSI will teach the customer the knowledge and information required to use the software supplied on a user level as part of its training. Unless otherwise agreed in writing, the training will be held in the customer’s training rooms. If the training is held on the customer’s premises, he will be obliged to provide sufficient technical equipment required for the training free of charge. Those attending the training must possess basic PC knowledge. If GSI incurs accommodation costs or other expenses as part of the training, such outlays must be reimbursed by the customer on submission of receipts. Travel expenses will be reimbursed by the customer on submission of receipts.
16 Restrictions on liability and expiration of statute of limitations
GSI will be liable without restriction for damages caused by legal deficiencies and failure to provide promised features. Liability for initial incapacity, delay and impossibility is limited to five times the sum of the order and limited to damages which can be typically expected to occur when providing software. Otherwise GSI will only be liable for wilful intent and gross negligence including by its management and vicarious agents unless a duty is breached the observance of which is of crucial importance for achieving the purpose of the contract (cardinal duty). If a cardinal duty is breached, GSI will also be liable for slight negligence. However, the restriction of liability for initial incapacity must be applied. Liability for loss of data is limited to the typical cost of restoring the data which would be incurred if back-up copies had been regularly made in reflection of the risk level. Liability under the Product Liability Act remains unaffected. Strict liability on the part of GSI under Section 538 (1) of the German Civil Code is explicitly excluded. The statute of limitations for immaterial contractual breaches is limited to two years.
E Rights on termination of use
17 Return of property
On termination of the contract, all items which we have provided the customer for his use, in particular rented or leased hardware, must be returned to us with the transport and insurance costs to be paid for by our customer.
In the case of software for which usage rights are only granted with restrictions, such software must be returned at the end of the contract together with data carriers if it is installed on data carriers belonging to us, and otherwise it must be deleted on the customer’s own data carriers and the deletion log sent to us.
All material forming part of the documentation – including source programs and development documentation – must be returned to us in the original together with all copies made of it.
20 Confirmation of complete return
On request, we are entitled to formal confirmation that all obligations to return items have been completely fulfilled in compliance with the contract.
F Ancillary provisions
21 Choice of jurisdiction, place of performance and place of jurisdiction
All our business relationships with our customers are subject exclusively to the law of the Federal Republic of Germany. If this law refers to foreign legal jurisdictions, such references will be invalid. Application of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL) is explicitly excluded. The place of fulfilment for products and services is the location contractually agreed as the delivery address, Munich in the event of doubt. The place of fulfilment for payments is the place of payment specified in the invoice. The place of jurisdiction for both parties is Munich, but GSI will be entitled to elect to assert its own claims at the place of jurisdiction of our partner. If GSI’s contractual partner is not a registered trader, statutory regulations will apply.
22 Severability Clause
Should individual clauses of these contractual conditions or any individual side agreements concluded, be wholly or partially invalid, this will not affect the validity of the remaining clauses. The invalid clause will be replaced by a different clause which most closely approximates to the financial purpose of the invalid provision and which in turn is valid.