General Terms and Conditions
Valentin Software GmbH
Stralauer Platz 34
General Terms & Conditions of Business of Valentin Software GmbH
1.1 These Terms & Conditions of Business shall govern the contractual relations between Valentin Software GmbH, Stralauer Platz 34, 10243 Berlin (hereinafter referred to as “Valentin”) and companies, legal entities under public law, or special public assets (hereinafter referred to as “Customers”) for the provision of goods (hereinafter referred to as “goods” or “software”) and services by Valentin They shall apply, in the context of current and future business relations, to the development, transfer, adaptation or extension as well as maintenance of software, including services connected therewith (in particular consultancy services) and also any pre-contractual negotiations relating thereto.
1.2 Unless provided otherwise, these Terms & Conditions of Business and the contract concluded separately between Valentin and the Customer (which takes priority over these Terms & Conditions of Business) shall apply exclusively. In addition, the Price List of Valentin valid at the time shall apply (these Terms & Conditions of Business, the separate contract, and the Price List together being hereinafter referred to as “Contract”).
1.3 Contradictory or differing terms and conditions, particularly any General Terms & Conditions of Business of the Customer, shall not constitute part of the Contract, even if Valentin executes the Contract without explicitly controverting such terms and conditions.
1.4 Insofar as the subject of the Contract is the transfer of third party standard software or open-source software, such transfer shall be based preferentially and, if applicable, additionally on the said third parties’ separate terms and conditions (of licensing) or on the applicable open-source software licenses, respectively.
2. Conclusion of the Contract, written form
2.1 The Contract, inclusive of these Terms & Conditions of Business, shall be created either upon acceptance of Valentin’s offer by the Customer or upon the acceptance of the Customer’s order by Valentin. In case of disagreements or doubts, the offer or the acceptance of the Contract, respectively, by Valentin shall be decisive.
2.2 Valentin offers no contracts or services to consumers. In particular, software can only be purchased by Customers in pursuance of Section 1.1.
2.3 The conclusion of the Contract shall be subject to the form of Valentin’s offer to conclude the Contract. Later amendments and supplements to the Contract shall require the written form for validity. This shall also apply to any waiver of this requirement of written form.
2.4 The Contract shall conclusively include all agreements by the Contracting Partners on the Subject of the Contract. No written or verbal ancillary agreements shall have been made. Proof of an ancillary agreement shall be allowed.
2.5 All declarations (of intent) over and above Section 2.3, in particular terminations, warnings and the setting of periods of grace, shall require the written form for validity.
3. Provision of goods and services
3.1 Valentin shall undertake a guarantee for goods and services and their properties (Merkmale) and condition (Beschaffenheit) only insofar as this is expressly agreed in the Contract. Should an express regulation on the existence of a guarantee be lacking, it must be presumed in case of doubt that no guarantee has been stipulated.
3.2 Partial deliveries shall be permitted to a reasonable extent and can be billed separately.
3.3 Deviations in goods and services from the original agreement shall be permitted insofar as they fulfill or exceed the agreed performance characteristics.
3.4 Deadlines and periods of grace shall require the written form. Adherence to binding periods of grace and deadlines on the part of Valentin shall presuppose the timely and proper fulfillment of the Customer’s duties and obligations.
4. Software – scope of performance
4.1 The properties (Merkmale) and condition (Beschaffenheit) of the software shall be governed exclusively by the product specification of the software in force at the time when the Contract was concluded and by the agreed requirements.
4.2 Valentin shall provide its goods and services in accordance with the current state of technology. It must be noted thereby that software cannot be developed in such a way as to be totally free from defects.
4.3 Valentin shall transfer or deliver, respectively, standard software to the Customer in the version current at the time when the Contract was concluded and exclusively in the object code.
4.4 Valentin shall deliver with the software the user documentation required for its use.
4.5 Additional services ordered separately.
In particular, Valentin shall supply the following services, only if these have been expressly ordered separately:
− Provision of a specification list;
− Supply of technical documentation;
− Installation and implementation of the software;
− Servicing and maintenance of the software, including supply of updates, upgrades or other new versions of the software.
5. Software adaptations
5.1 Should Valentin be commissioned to provide adaptations, i.e., customizations of existing software, particularly adaptations of interfaces to external systems as well as provision of software extensions (individual software), Valentin shall adapt the version of the existing software current at the time when the Contract was concluded or shall extend the same in pursuance of the requirements agreed upon with the Customer in writing at the time when the Contract was concluded.
5.2 Should Valentin ascertain that statements or information supplied by the Customer, upon which the contractual requirements for adapting or extending software are based, are defective, incomplete or not conducive to the execution of the Contract, Valentin shall advise the Customer thereof in writing without undue delay and inform him whether the provision of the service with regard to adaptation or extension of the software has thereby become impossible for Valentin through no fault of its own or whether Valentin will offer the Customer changes to the service provided on amended contractual terms (particularly additional costs). Should Valentin amend its offer, the Customer shall inform Valentin in writing without undue delay whether he agrees to an amendment to the Contract on the basis of the altered requirements at the additional costs, which he may have to bear.
5.3 Immediately following conclusion of the Contract, the Contracting Partners shall appoint an expert person entitled to make decisions connected with the adaptation or modification of the software.
6. Software maintenance
6.1 Insofar as the Customer commissions Valentin to undertake software maintenance as a separate additional service, the software maintenance contract to be concluded shall have priority.
6.2 If the Customer does not commission maintenance immediately upon transfer, respectively delivery, of the software, respectively, the Customer, in order to catch up with the current state of the software when maintenance has begun later, must pay in arrears the maintenance charges which he would have had to pay if he had agreed to maintenance from the time of transfer, respectively delivery. In this case, the payment in arrears shall be due immediately and in full.
Software, including documentation, shall be delivered by Valentin, as it may choose, either (i) on data carriers (physical dispatch), in which case the user documentation could also be delivered in printed form, or (ii) in electronic form (e.g., to be accessed on a network, electronic dispatch).
8. Collaboration by the Customer
8.1 The Customer shall have a duty of reasonable collaboration in connection with the Contract.
8.2 If rectifying defects, the Customer shall support Valentin in searching for the cause of the said defect(s).
8.3 The Customer shall furnish in due time, and in the form determined by Valentin in agreement with the Customer, the information, data, and documents needed to supply the goods and services.
8.4 The Customer shall provide its collaborative services at his own expense.
Insofar as it is stipulated in the Contract that goods and/or services must be accepted, the following rules shall apply:
9.1 Valentin shall inform the Customer that the goods and/or services are ready for acceptance and shall provide the Customer with the said goods and/or services in such a way that acceptance may be made.
9.2 The Customer shall inspect the goods and/or services to ascertain their contractual properties (Merkmale) and condition (Beschaffenheit). The period allotted for this examination shall begin upon receipt by the Customer of the notice that the goods and/or services are ready for acceptance and shall continue for two weeks. The Customer shall carry out this inspection in such a way that even parts of the goods and/or services that are used only irregularly or at fixed intervals are also inspected and tested. The Customer must document the examination.
9.3 Should minor defects be identified, the Customer shall not interrupt the inspection and shall only restrict it insofar as said defects make it necessary to do so. Acceptance cannot be refused on the grounds that minor defects are present.
9.4 Should goods and/or services be ready for acceptance, the Customer shall declare in writing, immediately following signing of the acceptance protocol, that the said goods and/or services have been accepted. Should defects be entered into the acceptance protocol, Valentin shall rectify these immediately.
9.5 Should goods and/or services not be ready for acceptance, Valentin shall make supplementary performance within a reasonable period of grace. A further inspection and acceptance process shall then be undertaken. This shall be subject to the rules governing the first inspection and acceptance process.
9.6 Should the Customer fail to declare acceptance within the set term, Valentin may set a reasonable period of grace for the issue of this declaration. The goods and/or services shall be deemed to have been accepted upon expiry of this period if the Customer has neither declared acceptance in writing nor informed Valentin in writing of the defects which must still be rectified.
9.7 Should the Customer productively use the goods and/or services for industrial purposes beyond the extent needed for the inspection, the goods and/or services shall be deemed to have been accepted.
Unless agreed otherwise in the Contract, payment shall be governed by the following regulations:
10.1 Amount of payment. The Customer shall have a duty to make payment for the goods and/or services supplied by Valentin under the Contract. The amount of payment shall be set
− in the case of standard software, in accordance with the (license) fee due for payment; and
− in the case of all other goods and/or services and deliveries, unless agreed otherwise, in accordance with expenditure of time and costs incurred by Valentin and with the prices, including (license fee) payment;
whereby these prices and charges shall be governed by the Price List of Valentin currently in force.
10.2 Valentin shall document goods and services charged by expenditure of time in the form of hourly timesheets, which shall be submitted to the Customer. Should the Customer refuse to recognize a timesheet, Valentin may require that a joint inspection be undertaken within ten working days following receipt thereof to ascertain whether it is correct. Should the Customer raise no objection during the inspection or within five working days following the inspection at the latest, respectively, or should he fail expressly to maintain his objection, the hourly timesheet shall be deemed to have been recognized. Valentin shall advise the Customer of this fact and of the consequences of failing to maintain an objection once made in due time.
10.3 All agreed prices relating to payment shall be net prices. Discounts, rebates, or other reductions must be agreed upon separately in writing.
10.4 All prices designated in a Contract and Valentin’s Price List valid at the time shall be plus all applicable taxes payable by Valentin, in particular the value added tax currently in force.
10.5 In addition to the payment, the Customer must reimburse Valentin for all expenses incurred in connection with the provision of the goods and/or services, particularly travel costs (in case of provision in situ), to the amount of reasonable and proven travel and overnight accommodation costs. Should a motor vehicle be used, this shall be charged on the basis of the all-inclusive distance payment allowed under tax regulations. Expenses shall be invoiced separately or shown separately on invoices for payments.
11. Due date and offset
11.1 Payment and expenses shall be due upon receipt of invoice by the Customer and must be paid within fourteen days following receipt of invoice.
11.2 The Customer shall have a right of retention or right to refuse performance only with respect to counterclaims which are undisputed or have been recognized by a declaratory judgment. Any offset by the Customer against counterclaims is hereby excluded, unless the claims concerned are undisputed or have been recognized by a declaratory judgment.
12. Changes to goods and services
12.1 A requisite change shall fall under Valentin’s area of risk if, due to reasons for which Valentin is responsible or which can be imputed to it, goods and/or services cannot be provided or can only be provided at costs significantly greater than those stated in contractual agreements. In this case, Valentin shall have the right to change or adapt its goods and/or services at its own expense, insofar as the Customer may reasonably be expected to accept the said change or adaptation, taking Valentin’s interests into account.
12.2 Should the requisite change not fall under Valentin’s area of risk, Valentin shall have a claim to amend the Contract.
13. Rights of use
Insofar as Valentin transfers or delivers software or other goods and/or services which are protected by intellectual property rights including copyright (hereinafter referred to collectively as “Items”), the following shall apply:
13.1 Grant of rights. Valentin hereby grants the Customer, upon transfer or delivery of the Item, the non-exclusive right which is unlimited in terms of region and time , to use in the course of its own entrepreneurial activity and for its own business purposes in accordance with the scope and purpose of the Contract. Should the Item be software, the Customer shall be entitled to install and use the said software transferred or delivered by Valentin, only on the specified system platform and in accordance with the contractually agreed number of computer workstations. Home-office stations belonging to a network, portable computers connected temporarily to a network, and remote workstations shall also be deemed to constitute separate computer workstations.
13.2 Reservation of consent. Without Valentin’s prior written consent, the Customer
(i) shall not grant to third parties any rights in or to the Items or assign its rights in or to the Items to third parties, not even temporarily or in part;
(ii) shall not, if the Item is software, translate, process, adjust or otherwise modify the said software, and in particular shall not undertake, or cause to be undertaken, any reverse engineering or decompiling, unless it is necessary to establish interoperability with other programs; in this case, however, the provisions contained in the Customer’s rights governing defects must be taken into account;
(iii) shall not, if the Item is software, duplicate or copy the said software, unless the copy in question is a backup copy, which has been produced by a person entitled to use the software and in accordance with the rules of technology and only to the requisite extent. Backup copies on movable data carriers must be labeled as such and must be marked with the Valentin’s copyright notice .
13.3 Transfer of rights of use. The Customer shall supply or transfer the Items (particularly software) to third parties only as a complete entity, while at the same time desisting fully and finally from its own use of the said Items. Should the Item(s) concerned be software, the transfer of rights in or to the software shall in addition require transfer of the registration number of the software from the Customer to the third party. Transfer of Items shall in any case require written consent by Valentin. Valentin shall give this consent if the Customer submits a written declaration by the third party, in which the latter agrees vis-à-vis Valentin to comply with the terms and conditions of use and transfer governing the said Items and if the Customer guarantees Valentin in writing that it has transferred the Items, or all original copies of the Items, to the third party, and has deleted all copies thereof which it has made himself.
13.4 Refusal of consent. Valentin may refuse its consent if the use of the Items by the new third party conflicts with its legitimate interests. This shall also apply to the consent under Section 13.3.
13.5 Multiple uses of software. The Customer shall be entitled to such use of the software as exceeds the contractually granted rights of use only following written consent by Valentin. In the case of multiple uses without consent, Valentin shall be entitled to charge the sum due for such further use (including use in the past) in the form of damages.
13.6 Third Party standard software. Insofar as third party’s standard software constitutes an integral part of the Contract, delivery or transfer shall be made overridingly, and if necessary by way of supplement, on the basis of the separate terms and conditions (of license) of the third party.
13.7 Open-source software. Insofar as open-source software is an integral part of the Item, delivery or transfer shall be made overridingly, if necessary by way of supplement, on the basis of the applicable open-source software licenses.
13.8 Copyright notices. The Customer shall not be entitled to alter or remove copyright notices without prior written consent by Valentin.
14. Reservation of title and of rights
Valentin shall retain title and all rights to be granted until full discharge of the payment owed under the respective Contract. Until full payment has been made, all rights shall be granted only provisionally and shall be freely revocable by Valentin at any time. Should Valentin assert this reservation of title, the Customer’s right to use the goods and/or services, particularly the software, shall expire. In this case, the copy of the software supplied by Valentin to the Customer, including the documents pertaining thereto, must be returned to Valentin. All copies of software made by the Customer must be deleted.
15. Intellectual Property rights of third parties
15.1 Should a third party assert claims against the Customer deriving from intellectual property rights including copyrights with regard to goods and/or services supplied by Valentin, the Customer shall inform Valentin thereof in writing immediately and in full. In this case, the Customer shall give Valentin the requisite and appropriate information required for legal defense or out-of-court settlement.
15.2 Valentin shall defend the Customer at its own expense against claims brought by third parties deriving from the breach of an intellectual property right including copyright by the use of Valentin’s software in accordance with the Contract and reimburse the Customer for costs and damages imposed on him by a court or contained in a settlement previously approved by Valentin, provided the Customer (i) informs Valentin immediately and in writing that such claims have been brought, and (ii) all means of defense and settlement negotiations shall remain reserved on Valentin’s part. The Customer shall support Valentin thereby.
15.3 Should such claims as aforementioned have been brought by a third party or should such claims be expected, Valentin may at its own expense purchase a right of use or modify the goods and/or services or exchange them for goods and/or services of equal value.
15.4 These duties on the part of Valentin towards the Customer, regarding claims arising from breach of third parties’ intellectual property rights including copyrights, shall be final.
16. Rights in case of defects; notices of defects
16.1 Should defects occur in the goods and/or services, the Customer shall report them to Valentin immediately, stating the information requisite for identifying and rectifying the defect.
16.2 Valentin shall analyze reported defects and shall initially perform warranty by subsequent fulfillment. Rectification of a defect assumes that the defect is reproducible.
a) Material defects: Valentin shall supply the Customer at its own choice with new, defect-free goods and/or services (replacement delivery) or shall rectify the default; it shall also be deemed to be a rectification of defect if Valentin shows the Customer reasonable means of avoiding the impact of the defect (avoidance solutions).
To rectify the defect, Valentin may offer the Customer patches, bug fixes, or new software. Should the Customer refuse their installation, Valentin shall be exonerated from the duty of rectifying malfunctions unless, following installation of patches, bug fixes, or new software, the software would evince a lower or worse functionality than before.
In particular, there shall be no defect if the breakdown has been caused by improper treatment or improper operation of the software (e.g., running it in systems and hardware environments other than those specified in the Contract).
b) Defects of title: Valentin shall procure for the Customer at its own option a legally sound arrangement for use of the goods and/or services (e.g., by procuring the requisite rights) or shall so modify the goods and/or services that they no longer breach the rights of third parties but continue to fulfill the agreed requirements (e.g., by supplying a new product).
16.3 Valentin’s rights to refuse subsequent fulfillment in cases delimited by statute shall not be affected hereby.
16.4 Should subsequent fulfillment by Valentin prove unsuccessful, following expiry of a reasonable period of grace which the Customer shall set, unless this is unnecessary in cases delimited by statute, the Customer shall be entitled to his statutory rights. Subsequent fulfillment can only be taken to have failed if two attempts at subsequent fulfillment have not obtained rectification of the defect in a reasonable time. The Customer can only require damages or compensation for useless expenditure within the limits set out in Section 17 (limitation of liability).
16.5 Liability for material defects and defects of title shall expire if the Customer or third parties undertake changes to the goods and/or services supplied by Valentin and Valentin has not agreed expressly in advance to the said changes, unless the Customer can prove that the defect is not due to the changes and the latter have not impeded the identification, analysis and rectification of the defect.
16.6 Should it transpire that a defect reported by the Customer does not actually exist or is not due to goods and/or services supplied by Valentin, Valentin may require the Customer to pay compensation for the expenditures incurred through the analysis and other processing insofar as the Customer, in making the report, has acted intentionally or with gross negligence.
16.7 Time limitation. The time limitation for claims involving defects shall be one year, unless Valentin has maliciously concealed said defect. This time limit shall begin to run upon delivery of the goods and/or services; should the goods or services be subject to inspection and acceptance, it shall begin to run upon acceptance of the goods and/or services. This time limitation shall not apply in cases of intention or gross negligence.
16.8 Notice period. Obvious defects shall be brought to Valentin’s attention immediately, but no later than within two weeks following delivery, provision of performance or acceptance. Delayed notices of complaints shall not be accepted.
Concealed defects must be brought to Valentin’s attention within three weeks following their detection. Delayed complaints shall not be accepted.
17. Limitations of liability and time restrictions
17.1 Valentin shall be liable for imputable breaches of duty due to intention and gross negligence in pursuance of statutory regulations.
17.2 Valentin shall be liable for breaches of duty due to ordinary negligence only if material contractual duties are infringed. In this case, claims for damages shall be limited in their amount to the extent of foreseeable, typical losses.
17.3 In the cases set out in Section 17.2, Valentin shall not be liable for consequential damage to other entities or to other assets of the Customer. This limitation of liability shall not apply insofar as Valentin is able to enjoy cover for the loss incurred by way of existing industrial third party liability insurance or product liability insurance.
17.4 Time limitation. All claims for damages or compensation for useless expenditure under contractual and non-contractual liability shall be subject to a limitation period of one year. This limitation period shall not apply in cases of intention or gross negligence.
17.5 Valentin shall be liable without limitation for loss incurred from injury to life, limb, or health under statutory regulations. Valentin’s liability under claims in tort and under the Product Liability Act shall not be affected hereby.
17.6 The Customer shall be responsible for the regular and proper backup of his data in accordance with the current state of technology. In case of a data loss for which Valentin is imputable, Valentin shall be liable, if no case exists as set out in Sections 17.1, 17.2, and 17.5, only for the costs (i) of duplicating the data of the backup copies to be produced by the Customer, and (ii) of reinstating data that would have been lost even if proper data backup had been carried out.
18. Ending of user entitlement
Should the Customer’s entitlement to the use of Valentin’s goods and/or services, particularly to the use of the software supplied by Valentin, end (e.g., through cancellation of rights to use the software, through withdrawal from the Contract or through termination), the Customer shall surrender all Items pertaining to these goods and/or services so supplied. In particular, the Customer shall in this case return to Valentin the original copies of the software which have been supplied and delete all software copies produced by the Customer.
19.1 The contracting partners hereby agree not to disclose any information to be handled in confidence, particularly the contracting partner’s business or operating secrets of which they have become cognizant in pursuance of this Contract, and not to disclose or make the same accessible to third parties (except for subcontractors and affiliated companies as defined in Sections 15ff. of the Joint Stock Companies Act (AktG)), and not to use the same for a purpose other than that which has been contractually stipulated.
19.2 Business or operating secrets shall include in particular all Items of software, including their documentation.
19.3 The duties set out in Section 19.1 shall not apply to such information (i) as was legally known to a contracting partner prior to the date of receipt, (ii) was in the public domain or generally accessible to the public prior to the date of receipt, (iii) came into the public domain or became generally accessible to the public without the contracting partner which received the information being responsible therefor, or (iv) must have been published or transmitted by force of law, by order of a government authority or by a decision of the courts.
19.4 This duty of nondisclosure shall subsist beyond the end of the Contract.
20. Data protection
20.1 The contracting partners hereby agree to follow the provisions of data protection law. Valentin shall follow the data protection regulations particularly if Valentin is granted access to the Customer’s commercial operations or to its hardware or software.
20.2 It is not Valentin’s purpose to process or use personal data in the fulfillment of the Customer’s order. If any processing or use of personal data is to be made at all, it shall only be in exceptional cases as an ancillary consequence of contractual performances.
21. Place of jurisdiction, place of fulfillment, applicable law
21.1 The sole place of jurisdiction for all disputes arising from and in connection with the Contract shall be Berlin, Germany.
21.2 The place of fulfillment shall be Berlin, Germany.
21.3 The Contract and all disputes arising from and in connection with the Contract shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on the International Sale of Goods.
Valentin shall be entitled, without consent of the Customer, to consult and subcontract freelancers and other third parties to provide its goods and/or services.
23. Force majeur
Force majeur means the occurrence of unforeseeable, extraordinary circumstances which, despite all reasonable care, Valentin cannot prevent, e.g., interruptions to business, interference by government authorities, difficulties in energy supply, strikes or lockouts, irrespective of whether these circumstances occur within Valentin’s sphere or the sphere of its suppliers. Should Valentin be prevented from fulfilling its duties through force majeur, the delivery date shall be extended for a reasonable period, provided that the supply or service does not become impossible. Should the supply or service become impossible due to force majeur, Valentin shall be released from its duties of performance. In this case, the Customer shall not have to make any counterperformances.
24. Severability clause
Should one or more provisions of the Contract be or become ineffective, either wholly or in part, the efficacy of the remaining provisions shall not be affected thereby. In place of the ineffective provision, an effective provision shall be deemed to be agreed upon which shall approach as nearly as possible the commercial intention of the Contracting Partners. The same shall apply in the case of a lacuna.