General Terms and Conditions
Hanauer Landstraße 174
60314 Frankfurt am Main
§ 1 Scope
a) The following General Terms and Conditions (GTC) apply to all contracts concluded between an entrepreneur as defined in Section 14 of the German Civil Code (BGB) or an entity under public law, on the one hand, and CAD-PLAN GmbH (hereinafter “CAD-PLAN”), on the other.
b) By placing an order, the Client expressly acknowledges these GTC. These GTC apply exclusively; Conditions of the Client that contradict or deviate from these GTC shall not be recognized unless CAD-PLAN has agreed to their validity in writing and/or has made individual contractual arrangements with the Client.
§ 2 Conclusion of a contract
The offers made on our part and the descriptions of the services and works contained therein are fundamentally non-binding. Orders and commissions can be initiated by the Client in writing, by telephone, by e-mail or by fax. These shall be binding for the Client. A contract between us and the Client takes effect only when we send a written order confirmation or deliver the ordered goods or when we sign an individual contractual agreement.
§ 3 Copyright and rights of use
a) Copyright is formed when we provide creative services, such as the creation of designs, concepts, graphics, datasets, templates, software etc. (hereinafter referred to as “Work”). The provisions of the Copyright Act apply regardless of the required level of creation.
b) The Client is entitled to use the Work within the framework of the agreed purpose of the Contract and receives a simple right of use, unlimited to space and time.
c) The Work created by us may only be used for the type of use agreed upon in accordance with the order and the agreed purpose to the agreed extent. Any other or more extensive uses are only permitted with express consent. An additional usage fee may be agreed upon if necessary.
d) External funds used by us as operating resources to perform our contractual work remain our property —even in the case of separate settlement. This applies equally to all other data received or stored in connection with contractual performance.
§ 4 Terms of payment
a) Prices contained in the offer as well as the contractually agreed remuneration are decisive. All prices are exclusive of the applicable statutory value added tax.
b) If the parties have not agreed on any fixed remuneration or if the services exceed the scope of performance agreed upon, our remuneration shall be based on expenditure. To this extent, our hourly or man-day rates valid at the time the service is provided shall apply.
c) Unless otherwise agreed in an individual contract, services shall be invoiced directly after they have been rendered. The amount of the invoice is payable in full within 14 days from the date of the invoice.
d) Until all amounts due have been settled in full, all services remain the sole property of CAD-PLAN. Therefore, no right of use and/or exploitation of the services provided is granted until payment has been made in full. Furthermore, pursuant to Section 273 of the German Civil Code, we have the right to retain all the materials provided by the Client until payment has been made in full.
e) After payment of the remuneration has been made in full, we shall make the software available to the Client on a suitable storage medium or as a download.
f) If the Client fails to make payment, CAD-PLAN is entitled to charge interest on the invoice amount from the time of the delay at the rate of 8 percentage points above the applicable base rate of the ECB if the Client acts as an entrepreneur. If the Client fails to pay interim invoices, CAD-PLAN shall also be released from its obligation to provide other services. The right to assert further damage shall remain unaffected, especially for claims resulting from non-payment.
g) Any counterclaims from the respective contractual relationship that are disputed by CAD-PLAN or that have not been legally established shall not entitle the Client to perform any offset or to retain or reduce the amount payable.
h) Maintenance and rental amounts for the software products shall be collected by direct debit on due dates (usually monthly). In the case of first move-in, subsequent move-in, as well as changes, the Client shall be informed by pre-notification at least one day before the due date.
i) The Client agrees to receive invoices from CAD-PLAN in electronic form (Section 14, paragraph 1 of the Value Added Tax Act).
§ 5 Time of service
a) Fixed delivery dates shall be confirmed by us in writing. In the event of a delay in the provision of service attributable to us, a reasonable extension of deadline shall be granted. The Client may terminate the Contract only if this extension lapses without result.
b) In the case of fixed delivery times we shall not be liable for delays in delivery and performance if these are due to force majeure. If there is a delay in the provision of in-house or third-party services (whether tangible or intangible), the deadlines shall be extended accordingly.
§ 6 Guarantee for material defects
a) If the Client demands a remedy for a fault, we are entitled to choose between repair, delivery of a replacement or a replacement service.
b) The guarantee period is one year. This does not apply if there are claims for damages due to defects. In such a case, the following provisions regarding liability/compensation apply (Section 9 Liability/Compensation).
c) The Client shall grant us a reasonable amount of time for remedy, dependent on the extent of the remedial work required.
d) Defects must be reported in writing with a comprehensible description of the error symptoms and evidenced, as far as possible, by written records or other documents illustrating the defects. The notification of defects is intended to enable the error to be reproduced. This is without prejudice to the Client’s statutory duties of investigation and reporting.
e) The deadline for claims for defects is 12 months. The period for claiming begins with the delivery of the Work or, when purchasing standard software, when the risk of the purchased item is transferred. In the case of the delivery of updates, upgrades and new versions, the period for these parts begins to run with the delivery. This is regardless of the statutory deadlines for recourse claims pursuant to Section 478 of the German Civil Code.
f) The guarantee with regard to the created or adapted software shall not apply if the Client has made changes himself or has had it carried out by third parties without this being necessary due to delays for which we are responsible and the expiry of an extension period set by the Client or for other significant reasons.
§ 7 Guarantee for legal defects
a) The software supplied or made available by us is free of third party rights that would stand in the way of contractual use.
b) Insofar as defects of title exist, we are entitled to take legal measures to eliminate the rights of third parties that impair the contractual use of the software, or to eliminate their assertion or to change or replace the software in such a way that it no longer violates the rights of third parties, if and to the extent that this does not significantly impair the owed functionality of the software.
c) If the legal defect or a breach of the rights of third parties is based on content or materials that the Client has provided to us during the collaboration, the Client shall solely responsible for it, to the extent that compensation is in our favor if a third party argues against these claims. In this case, the other claims in Section 12 also apply vice versa at the expense of the Client.
§ 8 Liability/Compensation
a) The liability of CAD-PLAN for breaches of contractual obligations as well as for offense is limited to intent and gross negligence. This does not apply to injury to life, body and health of the Client, claims for breach of cardinal obligations and compensation for damage caused by delay (Section 286 of the German Civil Code). To this extent, there is liability for every degree of defect.
b) We are liable for product liability damages in accordance with the Product Liability Act.
c) Insofar as the liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of employees, personnel, staff, representatives and vicarious agents.
d) Insofar as liability for damages which are not based on injury to life, body or health of the customer for slight negligence is not excluded, such claims will become time-barred within one year from the occurrence of the claim or, in the event of a claim for damage due to a defect, from the submission of the claim.
e) In cases where we ourselves act as a third party customer, we are free to withdraw all guarantees, indemnities and other claims against the third party to the Client. Before making any claims against us, the Client undertakes to enforce the assigned claims using all legally permissible means.
§ 9 Right of set-off and retention
The Client cannot assert any right of retention against us under other orders. An offset against a claim from CAD-PLAN is permissible if the Client’s claim is incontestable or has been lawfully confirmed.
§ 10 Confidentiality and data protection
a) CAD-PLAN and the Client mutually undertake to treat all data and information as confidential, which are expressly designated as confidential or which are obviously not intended for the knowledge of third parties. This obligation also applies to the parties’ employees and agents. The confidentiality obligation naturally applies beyond the end of the contract, and also in the event that the Contract does not materialize.
§ 11 Right of withdrawal from training
a) The withdrawal from a commissioned software training course must be received by us in writing no later than 10 working days before the start of the seminar so that the Client does not incur any costs. If the withdrawal occurs 5 to 9 working days before the start of the course, the Client will be charged 50% of the total course fee. In the case of withdrawal within 4 working days before the start of the course, the entire course fee will be charged.
§ 12 Final provisions
a) All rights and obligations of the contracting parties are regulated in these GTC. Changes and additions to the contract, including this clause, must be made in writing. No side agreements have been entered into.
b) The law of the Federal Republic of Germany applies to these GTC and all legal relationships between CAD-PLAN and the Client, with the exception of the UN sales law.
c) The place of performance for all contractual and legal claims is the respective seat of CAD-PLAN. Unless otherwise stated in this contract, the place of performance and payment is the place of company’s headquarters.
d) Frankfurt am Main is the agreed place of jurisdiction.
e) The ineffectiveness of individual provisions of this Contract does not affect the validity of the remaining provisions. In the event that a provision is ineffective, it should automatically be replaced by an effective one that comes as close as possible to the economic purpose pursued by the parties with the ineffective provision.
Date: May 29, 2018