Art. 1 Scope of Application Qognify GmbH (Qognify) shall conclude with the contractual partner individual contracts, e.g. concerning software licensing and support, hardware maintenance, contracts for work, services and consulting, network services and electronic commerce (hereinafter, the “Performances”). Qognify shall render the Performances: a) in accordance with the provisions of the individual contract; b) in accordance with the special terms and conditions for each Performance; c) in accordance with the End-User License Agreement (EULA); and d) in accordance with these General Terms and Conditions. 2. These General Terms and Conditions shall regulate all types of Performances. The special terms and conditions for software licensing and support, hardware maintenance, contracts for work, services and consulting, network services and electronic commerce shall contain further provisions concerning the individual Performances. The special terms and conditions shall take precedence over the General Terms and Conditions. Art. 2 Origination of Contract; Contractual Terms and Conditions 1. No terms and conditions of the contractual partner shall apply, even if Qognify does not expressly object to them. 2. The offers of Qognify shall be non-binding and subject to change, unless issued for a temporally limited period of time. A contract shall first come about with the written order confirmation from Qognify. 3. These General Terms and Conditions as amended shall apply to the Performances agreed between the Parties in connection with this order and to future contracts. 4. Representations in test programs, product and project descriptions and documentation, etc. shall not constitute warranted features. Any warranty of features shall require an express written confirmation from Qognify. 5. The contractual partner is aware of the hardware requirements as well as of the technical possibilities and conditions of use relating to the software and services provided. The contractual partner has verified that the specifications for the Performances meet its plans and needs. In the case of doubt, before concluding the contract, the contractual partner should seek advice by employees of Qognify or third-party specialists. Any specifications by the contractual partner must be made in writing. 6. Qognify shall be entitled to delegate Performances to subcontractors. Art. 3 Collaboration of the Contractual Partner 1. The contractual partner shall provide Qognify in due time all information necessary to carry out the contract. 2. In the event of disruptions when rendering the Performance, the contractual partner shall take reasonable precautions through data backups, fault diagnoses, ongoing monitoring, etc. The contractual partner shall back up its data in accordance with generally accepted technical practices (e.g. daily, weekly and monthly backups). The contractual partner shall assure that the current data from data records maintained in machine-readable form can be reproduced at reasonable cost. 3. The Parties know that it is not possible in accordance with current state of technology to program completely error-free software. Each Party agrees to continuously monitor the software and to report errors without delay to the other Party. 4. If the contractual partner fails to meet its collaborative duties, Qognify shall be released from the duty to render the Performance. If Qognify nonetheless renders the Performance, Qognify shall bill the time and materials in accordance with the valid price list. Art. 4 Dates, Delays 1. Performance times shall only be approximate, unless Qognify has designated them as binding in writing. Performances shall always be subject to deliveries by Qognify’s suppliers. This applies, for example, to the delivery of database software. Partial Performances shall be permissible, provided the rendered parts can be expediently used by themselves. Each partial Performance may be invoiced separately. 2. Even if deadlines or periods have been agreed upon bindingly, Qognify does not need to answer for delays in delivery or performance based on force majeure or on events that significantly impede or make the delivery impossible for Qognify in a not merely temporary fashion, including operating disruptions, strikes, lockouts, administrative orders, raw material shortages, energy supply difficulties, mobilization, unrest, etc., even if such events have occurred with suppliers of Qognify or subcontractors thereof. 3. Performance periods shall be extended by the period in which Qognify is hindered through circumstances for which it is not responsible from rendering the Performance as well as by a reasonable startup period after the hindrance. This shall also apply to any period in which Qognify has had to wait for information, collaborative acts or a decision concerning a subsequent offer from the contractual partner. 4. Qognify shall only be in default after a warning. All warnings and grace periods by the contractual partner must be made in writing. Art. 5 Inspection Duty and Duty to Lodge Defect Complaints 1. If the contractual partner is a merchant and a commercial transaction is involved for both Parties, the contractual partner must inspect the Software immediately after the delivery thereof by Qognify or after downloading the Software, provided this is feasible in the ordinary course of business, and, if a defect is detected, notify the defect to Qognify without delay. If the contractual partner fails to provide notice, the merchandise shall be considered as approved, unless a defect is concerned that was not detectable upon inspection. In the event of such a defect, notice must be made immediately after the defect is detected; otherwise, the merchandise shall be considered as approved even in view of such defect. To preserve the rights of the contractual partner, it shall be sufficient that the notice is sent in due time. The foregoing provisions shall not apply if and to the extent Qognify has maliciously concealed a defect. 2. Defect reports must contain information about the type of error, the module in which the error has occurred and the work being carried out on the computer when the error occurred. The error must be described so that it can be reproduced. This obligation shall be determined in accordance with the possibilities of the contractual partner to detect and name the error. If Qognify conducts an error search at the contractual partner’s request and it is revealed that no errors exist or that errors outside Qognify’s scope of responsibility exist, Qognify may invoice its time and materials. Art. 6 Warranty 1. Qognify warrants that the Performances can be used for the hardware and the licensed software in accordance with the product description valid on the closing date and essentially meet the functionalities described therein. Qognify does not warrant, however, that the licensed software will always run securely without interruptions and errors. In the terms of this warranty, “errors” shall mean exclusively reproducible errors caused by quality-related defects in the software. An impairment of functioning resulting from hardware defects, environmental conditions, misuse, defective data, etc. shall therefore not constitute an error. Qognify notes that even minor changes in the software can lead to significant, unforeseeable disruptions in the execution of the relevant program and other programs. The contractual partner is therefore emphatically warned against making its own changes to the programs, and shall do so solely at its own risk. 2. If a defect appears, Qognify shall be entitled, at its choice, to remedy the defect or to supply replacement Software (subsequent performance). 3. If the subsequent performance definitively fails after several attempts despite a reasonable preclusive period set in writing, the contractual partner shall have the right to reduce the compensation or rescind the contract. Section 7 shall apply to damages claims. Further warranty claims shall be excluded. 4. A prerequisite for the warranty shall always be a defect complaint pursuant to Art. 5(2) and proof by the contractual partner that the defect is based on the Performances of Qognify. 5. The warranty shall further require that the contractual partner has not changed the Performances, particularly the Software, or used them contrary to the terms and conditions of licensing and use. 6. Unless otherwise specified in the special terms or the EULA, the warranty shall be determined in accordance with the provisions of law and shall commence with the rendering of the Performance or, in the case of licensed standard software, upon delivery or, in the case of individual programming and projects, upon the acceptance thereof. Art. 7 Liability 1. The liability of Qognify to pay damages based on any legal ground and the amount thereof shall be determined in accordance with the provisions below. 2. The liability of Qognify for damage caused by Qognify or its vicarious agent or legal representative intentionally or due to gross negligence shall be unlimited in terms of the amount. 3. In the event of damage based on injury to life, limb or health, the liability for a breach of duty due to simple negligence on the part of Qognify or its vicarious agent or legal representative shall be unlimited in terms of the amount. 4. The liability for damage attributable to serious organizational negligence on the part of Qognify or for damage caused by the absence of a feature warranted by the Licensor shall likewise be unlimited in terms of the amount. 5. In the event of a breach of material contractual duties, Qognify shall be liable, if none of the events mentioned in Number 2 to 4 is given, for an amount limited to the foreseeable damage typically stipulated in contracts. 6. Any further liability for damages, particularly for no-fault liability, shall be excluded hereby. 7. Liability in accordance with the Product Liability Act shall not be prejudiced hereby. 8. If a damage is attributable to the negligence of both Qognify and the contractual partner, the contractual partner must allow itself to be ascribed its degree of co-negligence. 9. Qognify shall only be liable for the recovery of data if the contractual partner has ensured that such data can be reproduced at reasonable cost from the data records maintained in machine-readable form. This restriction of liability shall not apply in cases of intentional action and gross negligence. Art. 8 Payment, Prices and Set-Off 1. Payments shall be due without any deductions within 10 days after the invoice date. No cash discounts shall be granted. Initial orders from new customers may only be made COD (cash on delivery) by check for deposit only or by advance remittance. All amounts are net amounts, to which the applicable value-added tax shall be added. 2. As default damage, Qognify may request default interest in the amount stipulated by law. Qognify may furnish proof of greater, the contractual partner materially lower default damage. 3. The valid price list shall apply in the case of compensation on a time and materials basis in the form of daily rates. 4. For Performances which Qognify does not render at its registered office, travel costs, expenses and, if applicable, any accommodation costs shall be separately invoiced upon settlement on a time and materials basis. Car travel shall be charged pursuant to the applicable price list, travel with public transportation and accommodations on a time and materials basis, food on a lump-sum basis at the maximum rates applicable for tax purposes. Qognify may charge 50 % of the prorated daily rate for travel time. 5. If the contractual partner rescinds the order and Qognify is not responsible for this, Qognify may request 25 % of the order value or of the service up to the next possible termination period as damages. Qognify may claim any verifiably greater damage. The contractual partner may furnish proof that the damage is lower. 6. The contractual partner may only set off claims with undisputed counterclaims or counterclaims declared by non-appealable judgment. Art. 9 Maintenance of Secrecy and Security Each Party hereby agrees to keep secret all information received from the other Party during the performance of the contract and all business and trade secrets of which it becomes aware and all information designated as confidential. The information and the corresponding documents may not be made available to third parties uninvolved in the performance of the contract. The Parties shall store the subject Performances and secure them so as to rule out misuse by third parties. This duty to maintain secrecy and secure the subject-Performances shall likewise apply to the licensed software. Art. 10 Expiration and Termination 1. Unless stipulated otherwise (e.g. for support, maintenance or network services), the contract may only be terminated for good cause. Termination must be made in writing. “Good cause” to terminate the contract shall exist inter alia in the event: the other Party suspends its payments, initiates bankruptcy or judicial composition proceedings or such proceedings are dismissed due to a lack of assets or out-of-court composition proceedings take place; claims of the other Party are attached and the attachment is not lifted within two weeks; the contractual partner does not observe the terms and conditions of use of the software (special terms and conditions for software licensing) or breaches the duty to maintain secrecy (Art. 9) or export provisions. Termination for good cause must be preceded by a written warning threatening termination and establishing a grace period, unless the delay would be unreasonable for the terminating Party. 2. In the event of termination for good cause by the contractual partner, Qognify shall be entitled to a share of the compensation corresponding to the Performance rendered to date. If Qognify is responsible for the good cause entitling the contractual partner to terminate, Qognify shall only receive such compensation if the Performance rendered to date is useful for the contractual partner. Art. 11 Written Form All verbal agreements, assurances and contractual modifications must be confirmed in writing by Qognify, including any modification or rescission of this requirement for the written form. Art. 12 Other General Terms and Conditions 1. Qognify may process the personal data disclosed within the framework of the contractual relations electronically for internal purposes. Qognify may also transfer the data to suppliers for performance and settlement purposes in fulfillment of the contractual relation. 2. All legal relations from this contractual relationship shall be subject to the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Bruchsal shall be the place of performance and jurisdiction.
