General Terms and Conditions of Trade, Sale, Delivery and Software Maintenance


§1 General remarks

  1. The terms and conditions apply to all present and future business relations, in which GIGATON GmbH, Benzstrasse 1, 68542 Heddesheim, hereinafter referred to “GIGATON“, will provide deliveries, services and software maintenance for customers. They shall apply irrespective of whether reference has been made to them in any specific case. Terms and conditions of the customer shall not apply, even if GIGATON did not explicitly object to them and performs the agreement.
  2. GIGATON will conclude an individual agreement with the customer based on these terms and conditions. An agreement shall only be entered into being if and when GIGATON has confirmed the agreement in writing or has performed the agreement. In the absence of a separate agreement, the amount of services shall depend on the content of the order confirmation by GIGATON and the present conditions.
  1. Changes in the course of technical progress shall be reserved. A quality guarantee is subject to the express and written approval confirmation by GIGATON. Product and project descriptions or similar forms do not represent quality guarantees.

§2 Prices

  1. GIGATON shall adhere to any price quoted until the period of commitment specified in the order has expired, for the remainder they are not binding.
  2. All prices shall apply ex Heddesheim without packaging, transport and duty. All prices are quoted before value added tax, but in the absence of a separate agreement without any ancillary services like installation, implementation, introduction, training courses, maintenance, expenses, travelling expenses and further expenses. Any shop, sales, supply and maintenance prices are listed in the current price list of GIGATON.
  1. If lack of information, unclear objectives or task formulation lead to additional expenses on the part of GIGATON, GIGATON shall charge these additional expenses separately according to the current.

§3 Payment

  1. Any invoice shall be due without deduction within ten days following invoicing. The customer shall only be entitled to withhold payments or offset them against counterclaims, insofar as his counterclaims are undisputed or have been determined by final judicial decision.
  2. If the customer falls into arrears with payment, GIGATON shall be entitled to default interest at a rate of 8 percentage points above the base rate of the European Central Bank.
  1. If valid reasons exist, in particular arrears of payment, GIGATON shall be entitled to make further services dependent on advance payment and balance of any or all current outstanding accounts. GIGATON may at any time demand anticipation payment or advance payment, if the customer’s registered office is based abroad, if a business relationship does not yet exist or due to any other legitimate reasons.
  2. For reasons of refinancing, GIGATON reserves the right to sell, garnish or assign claims arising from business relationships to third parties.

§4 Adaptation of Agreement

  1. Retrospective modification of the extent of service shall only be effective in writing. The contracting parties shall be entitled to demand modifications or supplements of the extent of service agreed upon at any time in writing. This does not cover service cutbacks.
  2. Insofar as the actual executed alteration of the agreement has effect on the capacity or structure of the agreement (in particular any payments, deadlines), the agreement has to be immediately adapted in written form by the contracting parties according to the negotiated changes. For this purpose, GIGATON shall submit a supplementary offer to the customer. The customer shall immediately, but at the latest ten working days following the receipt of the offer, communicate in writing if he agrees with the alteration. In the absence of a consent of the customer, the service agreed upon in the agreement shall not be altered.  
  1. If GIGATON notices during the execution of the service that specific requirements need to be modified, GIGATON shall notify the customer of this consequence and, as far as possible, submit possible alternative proposals. The customer shall decide forthwith on optional alterations arising from such notifications with respect to the content of the service.

§5 Cooperation of the Customer

  1. The customer shall provide extensive assistance to GIGATON with respect to supply of service; in particular, the customer shall precisely define the required specifications in writing, answer questions without undue delay, check regularly new installations, perform interim inspections of service work, tests, etc. The customer shall designate a qualified coordinator with power to take decisions who will be in charge of necessary information, specifications, tests and other duties to cooperate. GIGATON shall be entitled to demand the designation of another coordinator, if it is deemed necessary.
  2. The Customer shall be aware of the essential functional characteristics – as described in the offer – of the product and bear the risk that this may not correspond to the customer's preferences and needs, in particular with respect to the infrastructure and system environment. He is responsible of providing the necessary infrastructure, i.e. workstation, employees, computer time, system-technical environment, user rights, access to hardware and software (including source code), telecommunication facilities as well as the volume and structure of the required data, separate from the operations of the customers, etc.
  3. The customer shall be individually responsible for the data processing and the backup of the customer's data according to the current state of the art. The customer shall take adequate measures in the event that the software does not operate properly in whole or in part, e.g. through regular backups, fault diagnosis, regular checking of the results. The customer shall ensure that this data can be reproduced at justifiable expenses from data stock available in machine-readable form. In the absence of an express written instruction, GIGATON can always assume that all data GIGATON gets in touch with are backed up. The customer shall bear all expenses and disadvantages due to a breach of these obligations by the customer. The software shall be used properly and by qualified, trained staff of the customer. If problems arise in connection with the use of the software, the customer shall contact GIGATON and apply the proposed measures for error determination and debugging. GIGATON shall only be obligated to eliminate errors, if the error is described as precisely as possible, if necessary alongside with basic data (copies), if possible in such a way that the error can be reproduced.
  1. The customer shall be obliged to support GIGATON within a reasonable scope in order to the eliminate errors as well as to grant GIGATON access to the software and the corresponding system environment by means of remote maintenance. In the event that the customer fails to do so, the customer shall bear any disadvantageous consequences, in particular any additional expenses.
  2. The customer agrees that he shall be engaged to always keep the software supplied by GIGATON updated and to use the software updates provided by GIGATON as part of software the maintenance. The customer shall be informed about the necessity of any updates.
  3. The customer shall arrange and complete release changes with the due care and diligence, considering particularly the information and training courses provided by GIGATON. The customer shall be obliged to maintain own insurances to the extent customary in the industry and structure (e.g. in particular business-interruption insurance).

§6 Delivery

  1. The customer shall assume the expenses and risks of dispatch. GIGATON is entitled to take out an insurance for the delivery with respect to the dispatch at the customer’s expense.
  2. In the absence of a specific agreement, delivery and service periods shall not be deemed as firm delivery periods. Partial deliveries and part performances shall be deemed admissible insofar as the customer can reasonably be expected to accept them.
  1. The observance of the time limit for performance implies that the customer entirely fulfills the contractual duties to cooperate and any other contractual duties within specified deadlines. Performance periods shall be extended by the period of time during which GIGATON is unable to supply service due to circumstances GIGATON is not liable for (e.g. labor disputes, illness, force majeure, equipment failure or malfunction, non-delivery by upstream suppliers). GIGATON shall strive to inform the customer about predicable delays and to observe deadlines stated.

§7 Passing of the Risk

  1. The risk shall pass to the customer on delivery or on the taking of the delivery demanded by GIGATON.
  2. After the completion of the delivery or service, GIGATON is entitled to a written declaration by the customer, stating that the delivery or service is correct, complete and free from defects. Such declaration shall be submitted within four weeks and may only be denied in the event that the performance has any serious or not irremediable defects. The declaration shall be deemed as submitted, if the customer pays without reserve or if he does not communicate in writing major defects or defects which could not be remedied within four weeks after delivery or service.
  1. If the delivery or the acceptance is delayed or fails to be executed due to circumstances that GIGATON is not responsible for, the risk shall pass to the customer with notification of readiness for delivery or acceptance. If the performance becomes impossible during the customer's default of acceptance or if the customer is solely or predominantly responsible for this fact, the customer shall remain under a duty to render his counter performance.

§8 Liability for Defects

DEFECTS IN QUALITY

  1. GIGATON shall assume warranty for the fact that the provided service with the passing of risk does not feature any defects which impair their value or usability at the time of the acceptance; in the case of software, the liability for defects shall cover the fact that the program functions can be executed according to the program description.
  2. Defects are rectified within a period of twelve months after the product has been delivered to the customer by means of remedy or supplementary delivery by choice of GIGATON. In the case of software, the subsequent fulfillment can be carried out by supplying a following update. The customer has the right to withdraw from the agreement, if GIGATON is in default with his performance and if the performance was not carried out by GIGATON even after expiry of any extension period granted by the customer in writing. The right to reduction is restricted to cases in which negligible defects exist and shall be excluded otherwise. For indemnification shall apply the specified liability regime.
  3. The customer shall be entitled to assert the legal claims based on defects only if the customer communicates GIGATON any defects in writing immediately, describes the defect if possible in a precise and reproducible way and supports GIGATON concerning the investigation of the defect(s) and their remedy in any reasonable way (in the case of software inter alia by means of remote maintenance access to the software and software environment).
  4. Warranty claims on the part of the customer shall cease to apply if the customer fails in his duties to cooperate or if the deliveries or performances are modified without authority by the customer or by third parties and this has a major effect on the concerning defect and the expense necessary for the remedy of the defect.
  5. GIGATON shall be entitled to charge costs separately which are not within the scope of responsibility of GIGATON according to the liability for defects.
  6. Only in urgent cases of jeopardy to the operational safety and to prevent disproportionate damage, whereby GIGATON must be notified immediately, shall the customer be entitled to carry out the repair himself or to have it repaired by a third party, and to charge the necessary costs to GIGATON.
DEFECT IN TITLE

  1. If use of the Goods or the Performance leads to an infringement of intellectual property rights or copyrights in Germany, GIGATON shall, at its cost, in principle procure the right for the customer to continue to use the service or shall modify the service in a manner that is reasonable for the customer in such a way that the infringement no longer exists. If this is not possible at commercially reasonable conditions or in a reasonable period, both parties are entitled to withdraw from the agreement. Furthermore, GIGATON shall indemnify the customer against any undisputed or legally enforceable claims of the respective holders of the intellectual property rights.
  2. GIGATON's obligations according to the damage claims shall be for the instance of infringement of property rights or copyrights final. They exist only if the customer immediately informs GIGATON in writing about asserted claims, the customer supports GIGATON in an appropriate extent in the defense of the asserted claims and/or enables GIGATON to effect modification measures, all defensive measures included out of court settlements remain reserved for GIGATON at its discretion, the defect in title is not based on an instruction issued by the customer and the infringement is not caused by non-authorized modifications of the delivery item by the customer or a non-authorized use of the delivery item by the customer.
  3. The customer shall guarantee that, in connection with the provided software or software used for GIGATON in any other way, with the execution of the performance no rights of third parties, in particular no industrial property rights or copyrights are infringed directly or indirectly. If any claim is made against GIGATON by third parties due to commercial industrial or intellectual property made by GIGATON, the customer shall indemnify GIGATON already now from such, including any expenses which GIGATON incurs therefrom, with the reservation that GIGATON notifies the customer immediately in writing about any claims made by a third party and that the customer can take any protective action the customer deems necessary.

§9 Conditions of Software Maintenance

GIGATON shall take care of the maintenance service of the software created by GIGATON, which is agreed in the order confirmation and regulated according to §§ 9a and 9b; for the rest, unless not otherwise defined in §§ 9a and 9b or in the order confirmation, §§ 1 to 12 of the General terms and conditions of trade, sale, delivery and software maintenance shall additionally apply.

§9a Services Regarding Software Maintenance

GIGATON shall provide its services according to the maintenance level agreed upon. The maintenance duty shall only apply to the software in its newest version, to the extent that an update is not unreasonable to the customer in the individual case. GIGATON shall not delay the beginning of the solution of the problem by reference to new versions which are to be installed. Agreed services – especially advice by telephone via hotline – shall only be requested by specially trained personnel of the customer designated in the agreement as a contact person. GIGATON reserves the right to separately charge the training by telephone in case of staff turnover.

  1. Maintenance of Programs

    a) Elimination of Errors:
    Beyond the legal warranty liability, GIGATON shall be obligated to eliminate errors of the program, which consist of major deviations of the program specification which have a marked adverse effect on the envisaged use, inter alia by delivery of a new program release. If this is unreasonable for the customer, he shall be obliged to bear any additional costs arising out of an error remediation of the installed version. GIGATON shall be entitled to demand reimbursement of its expenses to the extent that GIGATON has become active due to an error report without such an error has been caused by GIGATON.

    b) Further Developments of the Program and Program Improvements:
    GIGATON shall provide to the customer further developed versions of the programs upon request as well as if necessary also unrequested. The delivery of the programs are contained in the maintenance lump. The maintenance charge does not contain any additional modules, which are listed as new system components in the GIGATON price list.

    c) Legal Changes:
    If, due to legal requirements, it is necessary to modify the programs, GIGATON shall seek to apply these modifications in the programs in time and provide them to the costumer. Liability for the observance and implementation of legal provisions shall not be assumed. GIGATON is entitled to a specific remuneration if the modifications require an extent that exceeds the one of a regular program maintenance.

  2. Boundaries of the Maintenance Extent

    The extent of the contractual maintenance does, in particular, not cover the installation of new program versions, the support on site, the training of staff and the elimination of such errors or such modifications arising out of modifications to already existing operation systems or of the hardware environment, unauthorized modifications to the software or use for a purpose which it was not intended for. GIGATON provides upon request of the customer and against special remuneration the installation of the GIGATON software on new hardware, the installation of updates and the support concerning the release change process.
  1. Support Services

    The basic services on the part of GIGATON are indicated in the respective service level (hours of availability, response times, languages etc.). All customers with a software maintenance agreement shall have the opportunity to send an email to the email address of the support. GIGATON then examines all reported cases to find out whether the reported case concerns GIGATON and its product due to e.g. a malfunction, a function which is not available or another problem. The support service also covers a brief consultation (hours vary per case according to maintenance level) after a support case has been reported due to a configuration error and improper use of the GIGATON application. GIGATON will, however, charge required consulting services for the support team according to the GIGATON price list. GIGATON especially reserves the right to charge consulting services in case of modifications of master data, workflows, system settings or modifications to the system environment made by the customer according to the GIGATON price list with prior notice.

  2. Priority Levels of Individual Support Cases
    The priority/urgency of a support case is defined by the customer according to the following guidelines, based upon which response times of GIGATON are specified according to the agreed maintenance and support level:

    a) Priority 1: EMERGENCY

    A support case of the urgency or priority “emergency” is justified, if extremely serious technical operational problems occur:
    Tasks which have to be instantly completed cannot be executed. This is due to a complete failure of the system or the failure of extremely important functionalities of the productive GIGATON system. This case needs to be treated immediately, because such failure can cause serious damage.

    b) Priority 2: CRITICAL CASE

    A support case of the urgency or priority “critical” is justified, if serious technical operational problems occur:
    Important tasks cannot be completed. Malfunctions or functionalities which are not available in the GIGATON system need to be urgently fixed. The case needs a fast treatment, because a permanent malfunction can cause serious interruptions in all processes of the productive system.

    c) Priority 3: NON-CRITICAL CASE

    A support case of the urgency or priority “non-critical” is justified, if operational problems occur. This is due to a malfunction or a non-available function in the GIGATON system.

    d) Priority 4: MINOR CASE

    A support case of the urgency or priority “minor” is justified, if no or minor operational problems occur in the productive operation. These problems are due to a malfunction or a non-available function in the GIGATON system which are not required daily or regularly. 

    e) Classification of Test Systems:

    Identical problem situations occurring in test systems usually justify an urgency or priority, which is one level below the case with similar circumstances in a productive system.

§9b Terms of Software Maintenance / Termination

  1. The assignment for the software maintenance is valid for an indefinite period of time. The ordered software maintenance can be terminated by both parties with a notice period of six months at the end of the agreement term. Every termination shall require the written form in order to become effective.
  2. The right to immediate termination due to important causes remains unaffected. GIGATON is entitled to the termination of the maintenance agreement without notification especially if the customer is in default with the maintenance charge not only for a short period of time or if he modifies the software and thus complicates its maintenance. In this event, GIGATON is entitled to discontinue the maintenance.
  3. The maintenance charge shall be due monthly in advance for the period covered, that means that the first maintenance charge is to be paid with the license fee after the invoice has been issued by GIGATON, the maintenance charge for the following months is due after the invoice has been issued by GIGATON.
  1. Changes to the maintenance charge shall be announced in time by GIGATON. The customer shall be entitled to give written notice of termination of the assignment for the software maintenance with a six months’ notice with effect as per the point in time at which the alteration is to take effect, if he does not want to continue the agreement based on the changed maintenance charge.
  2. The customer shall only be entitled to offset recognized counterclaims with prejudice. The same shall apply to the exercise of a right of retention.

§10 Liability

  1. GIGATON shall be liable in accordance with the statutory regulations in case of intent.
  2. In the event that GIGATON is not able to carry out the service, the service is unreasonably delayed or in the event of other reasons of liability, the liability shall be limited to the amount of 5 % of the contractual remuneration, but to no more than € 100,000.00.
  3. GIGATON shall not be liable for simple negligent breaches of duty done by persons, who are neither statutory agents nor executive employees, unless no essential contractual obligations have been violated, but only to such an amount which was foreseeable by using the necessary diligence.
  4. In the case of insured risks, GIGATON shall be liable in the amount of all payments covered by the insurance, even if the restrictions defined above or individually agreed upon may be exceeded.
  1. The period of limitation for non-fundamental breaches of contract is limited to two years.
  2. Claims under the Product Liability Act and the Federal Data Protection Act of Germany shall remain unaffected.
  3. In the case of planning services, especially regarding properties and field of application of technical components, GIGATON shall be liable only for binding recommendations in writing.
  4. Liability is – except in cases of intent or gross negligence on the part of GIGATON of its agents whose services it draws on for the fulfilment of its duties – generally excluded, if the customer or a third party modifies the system without authorization, thus in particular not for the purpose of the elimination of errors after the warranty period has expired, causing malfunctions, unless the modification provably is based on an instruction given by GIGATON.

§11 Reservation of Title; Rights of Use and Enjoyment

  1. In the absence of a special agreement, GIGATON shall give the customer with the release of the software the non-exclusive and non-transferable right under the law of obligations to use the software within a corporate environment on a computer, and to use it for the customer’s own operational purposes, thus not for the benefit of third parties (e.g. data processing center). In the relationship between GIGATON and the customer, GIGATON shall exclusively be entitled to all further protective rights – in particular proprietary right and the resulting rights of exploitation – to the software (including programs, materials, manuals, documentations and other documents).
  2. GIGATON retains title to deliveries until full payment is made for all claims against the customer, and reserves the right to revoke the granting of the rights of use toward the customer, if the customer is in default of payment for more than four weeks.
  3. Transfer of the software to third parties requires a prior written consent by GIGATON. The latter can be granted if it is ensured that the customer discontinues the use of the software, the software’s scope of use does not increase for the new user and that the new user respects his restricted rights of use and GIGATON’s rights to the software.
  1. The software may only be copied by the customer for backup and archive purposes. Any other duplication of the software and/or its processing outside a necessary error elimination, translation and/or further distribution without the right to do so has been granted in an individual agreement is prohibited according to the rights of use and enjoyment. Copyright notices and trademarks of GIGATON shall be complied with.
  2. Software for test purposes shall exclusively be used for test purposes and not for the purpose of commercial activity.
  3. GIGATON shall be entitled to name the customer and the service furnished as a reference.

§12 Final Provisions

Contingent invalidity of individual provisions shall not affect the validity of the remaining provisions and the whole agreement. Fax and email with statutory recognized, qualified electronic signature meet the written form requirement. Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is Heddesheim. German law shall exclusively be applicable.

Updated in May 2017