general terms and conditions

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A. General regulations

 

§ 1 Scope of application

(1) These General Terms and Conditions (hereinafter “GTC”) apply in the version valid at the time of the customer’s order for all business relationships between DICOS GmbH, represented by the managing directors Dr Winfried Geyer, Stephan Hesse, Waldemar Wiesner, Alsfelder Strasse 11, 64289 Darmstadt (hereinafter “DICOS”) and its contractual partners (hereinafter “customer”), provided  the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law, even no explicit reference to these GTC is made in individual transactions.

(2) There are no verbal side agreements between the parties. These GTC apply always and exclusively. Deviating, supplementary or conflicting terms and conditions of the customer shall only become part of the contract if and to the extent that DICOS has expressly agreed to their validity in writing.

(3) Individual agreements made with the contractual partner in individual cases (including side agreements, supplements and amendments) always take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation from DICOS is authoritative for the content of such agreements.

(4) Legally relevant declarations and notifications by the customer regarding the contract (e.g. setting a deadline, notification of defects, cancellation or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements remain unaffected.

(5) In addition to the provisions of these GTC, the statutory provisions shall apply.

 

§ 2 Offers and Contract Formation

(1) Offers made by DICOS are subject to change and non-binding, unless otherwise agreed or specified in the DICOS offer. This also applies if DICOS provides the customer with catalogues, technical documentation (e.g. plans, calculations), other product descriptions or documents – including in electronic form.

(2) The customer’s commissioning or order constitutes a binding contractual offer to DICOS. Unless otherwise agreed, the customer is bound to the commission or order for 7 days after it has been received by DICOS.

(3) A contract between DICOS and the customer is only concluded when DICOS accepts the commission or order in writing (declaration of acceptance) or begins to provide the service commissioned or ordered by the customer. This declaration of acceptance can also be made by confirmation from DICOS in a shared business portal (e.g. ariba).

(4) In the absence of a mutually signed contract, the content of the respective contract shall be determined by the written declaration of acceptance by DICOS, possibly in conjunction with the service description created by DICOS.

 

§ 3 Services by DICOS

(1) DICOS shall provide the following services, insofar as contractually agreed:

  • Consultancy and support services on a service contract basis in coordination with the customer.
  • Services necessary to maintain and restore the operational readiness of software as well as necessary updates and extensions of software (maintenance and support services);
  • creation of (customised) software for a fee;
  • transfer of software in return for a fee.

(2) Details regarding the scope of services shall be defined in a written contract or an order confirmation by DICOS in connection with the respective service description.

(3) The provision or transfer of software or update or extension shall generally be made available in object code as a download via the DICOS server or the respective manufacturer. A transfer of the source code is not owed unless there is an explicit contractual agreement to this.

 

§ 4 Performance modalities / delays / place of performance

(1) DICOS is entitled to make partial deliveries to an agreed extent or to an extent reasonable for the customer.

(2) DICOS is authorised to engage contractual services performed by third parties (subcontractors).

(3) Dates for the commencement of services or delivery deadlines shall be agreed individually or specified upon acceptance of the commission or order from DICOS. The service period or the delivery deadline is extended by the duration in which the customer is in default of payment and by a reasonable period if the customer delays in providing the information required for the provision of services by DICOS or does not provide the agreed cooperation obligations .

(4) In the event of a delay in service by DICOS, reminders and deadlines set by the Customer must be in writing or text form to be effective. A grace period must be reasonable. A period of less than two weeks is only appropriate in cases of particular urgency.

(5) If a bindingly agreed service date cannot be met due to unforeseen obstacles for which DICOS is not responsible (unavailability of service), DICOS shall inform the customer immediately and agree on a new performance date.

(6) Unless otherwise agreed in the contract, the place of fulfilment and payment is the registered office of DICOS.

 

§ 5 Maintenance / Support

(1) If DICOS is contractually obligated to provide maintenance and support services, DICOS shall advise and support the customer by telephone or email regarding the use of the software as well as information about applications, product recommendations and configurations.

(2) Telephone support is available to the customer on working days Monday – Friday, except for national public holidays and Corpus Christi, between 9:00 am and 5:00 pm. In individual cases, the provision of maintenance and support services outside these times can also be agreed for a separate fee.

(3) Unless otherwise agreed, the classification of errors and the respective response time of DICOS are based on the DICOS standard support programme. These are an integral part of the contract.

(4) The measurement of adherence to the agreed response time by DICOS shall only take place within the general support hours of DICOS and begins with proper error reporting by the customer. An error report is proper if the customer reports the error immediately after discovery and describes the symptoms that have occurred, the system and hardware environment, and all available relevant information in sufficient detail.

(5) DICOS provides maintenance and support services

  • in each case within a reasonable period of time, taking into account the order situation and availability of suitable DICOS employees;
  • at the discretion of DICOS, regularly by providing software modifications including the provision of adapted documentation;
  • within the scope of industry-standard care .
  • DICOS does not guarantee the elimination of errors at all or within a certain period of time.

(6) Unless otherwise agreed, DICOS is not obliged to adapt the software to changing legal framework conditions (laws, legal regulations, regulatory requirements) or to changing requirements in the customer’s sphere.

 

§ 6 Obligations to co-operate/provide materials

(1) The customer shall co-operate to the best of his ability in the provision of contractually owed services by DICOS, in particular by providing the information necessary for the provision of services regarding its operational requirements and the environmental conditions.

(2) The customer shall support DICOS in the search for the cause of the error upon request or if recognisably necessary for him and shall encourage his employees to cooperate with the contractor’s authorised representatives. Furthermore, to the extent necessary for the provision of the services owed by DICOS, the customer will enable access to the software at its own expense (including connection costs) via remote access.

(3) The customer may not operate the software at a location other than the specified location at the time the contract was concluded, or in a system environment other than the specified system environment, without prior consultation with DICOS.

(3) The customer is prohibited from circumventing technical measures to protect the software or removing existing copyright or property right notices.

(4) If the processes to be carried out by DICOS affect legal and/or operational regulations, the customer is responsible for checking the correctness of the proposed processes.

(5) Unless otherwise agreed, the customer shall appoint and deploy at least two employees (so-called key users) with in-depth knowledge (administrator-level knowledge) of the contractual software as contact persons for DICOS immediately after conclusion of the contract in the interest of efficient error elimination and handling. The key users bundle and coordinate reports and enquiries from the customer. Other employees of the customer are not authorised to submit reports and enquiries to DICOS.

(6) If DICOS incurs additional expenses due to a culpable breach of the obligations to cooperate or provide materials, DICOS is entitled to charge the customer separately. Further claims by DICOS remain unaffected by this.

 

§ 7 Obligation to give notice of defects

(1) The customer must inspect each service or partial service from DICOS immediately upon receipt with due diligence and notify DICOS of obvious defects in writing within 7 working days. Defects that cannot be detected initially must also be reported in writing immediately upon their discovery. If the customer does not fulfil these obligations, the service or partial service is considered approved with regard to this defect, with the consequence that the assertion of claims for defects is excluded.

(2) The customer’s written notice of defects must describe the defect comprehensively and specifically. If an alleged defect is not subject to the obligation of subsequent fulfilment (apparent defect), DICOS may charge the customer separately for the services rendered for verification and troubleshooting, unless the customer could not have recognised the apparent defect even if it had exercised the care required in the course of business.

 

§ 8 Prices and Payment Conditions

(1) All prices are stated in euros and are subject to statutory VAT.

(2) Within the framework of an ongoing business relationship, DICOS is authorised to perform services in whole or in part against advance payment.

(3) Unless otherwise agreed, payments are due upon receipt of an invoice by the customer and must be paid within 14 days without deduction. The timeliness of the payment is determined by the credit entry on the DICOS account.

(4) The customer is in default without without the need for a reminder from DICOS if he has not paid within 14 days after the due date and receipt of an invoice. During the period of default, the remuneration is subject to interest at the applicable statutory default interest rate. DICOS reserves the right to assert further claims for damages caused by default. The claim to commercial maturity interest (§ 353 German Commercial Code, HGB) against merchants remains unaffected.

(5) If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that DICOS’ claim to the agreed remuneration is endangered by the customer’s inability to pay, DICOS is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of non-fungible items (customised products), DICOS can declare its withdrawal immediately; the legal regulations regarding the dispensability of setting a deadline remain unaffected.

 

§ 9 Third-party property rights

(1) DICOS shall indemnify the customer within Germany at its own expense from all third-party claims arising from infringements of property rights for which DICOS is responsible. The customer shall inform DICOS immediately of the claims asserted by third parties.

(2) In the event of defects of title, DICOS may, at its own expense and at its own discretion:

  • provide the customer with the right to use the software or the component that constitutes the infringement;
  • modify or adapt the Software or the component that constitutes the infringement in order to remove the infringement; or
  • replace the software or the component causing the infringement with other software of comparable performance, insofar as this is reasonable for the customer.

§ 10 Liability

(1) DICOS shall not be liable for damages, delays or impediments to performance outside the area of responsibility of DICOS.

(2) DICOS shall be liable to the customer in accordance with the statutory provisions for damages and reimbursement of expenses in the event of culpable injury to life, limb and health, as well as in the event of intent and gross negligence, fraudulent concealment of a defect or a guarantee expressly assumed by DICOS, and in accordance with the German Product Liability Act.

(3) DICOS shall also be liable for slightly negligent breach of a essential contractual obligation. Essential contractual obligations are those whose fulfilment is necessary for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In these cases, however, liability is limited to compensation for foreseeable contract-typical damage and to a maximum amount of EUR 50,000 per damage claim.

(4) Claims for breach of an essential contractual obligation shall become time-barred after 12 months.

(5) Otherwise, liability for damages and reimbursement of expenses – regardless of the legal grounds – is excluded.

(6) If a data loss  results from a culpable breach of the customer’s obligation to regularly back up data, the claim for damages against DICOS is limited to the damage that would have occurred even if data had been properly backed up.

(7) The above provisions also apply in favour of the legal representatives and agents of DICOS if claims are asserted directly against them.

 

§ 11 Force majeure

(1) In cases of force majeure, the affected contracting party shall be released from the obligation to perform for the duration and to the extent of the impact. Force majeure is any event beyond the control of the respective contracting party which prevents it in whole or in part from fulfilling its obligations, including fire damage, floods, strikes and lawful lockouts as well as operational disruptions or official orders for which it is not responsible.

(2) The affected Party shall immediately notify the other Party of the occurrence and cessation of the force majeure and shall use its best endeavours to remedy the force majeure and to limit its effects as far as possible.

(3) In the event of force majeure, the contracting parties shall agree on the further procedure and determine whether the services not performed during this period should be repeated after the force majeure has ended. The contracting parties shall determine by mutual agreement a deadline after the expiry of which each contracting party shall be entitled to withdraw from the affected orders if the force majeure has not ended within this period. The right of each contracting party to terminate the contract for good cause in the event of prolonged force majeure shall remain unaffected.

 

§ 12 Confidentiality / Data protection

(1) The contracting parties agree to maintain confidentiality about all confidential information that comes to their knowledge during the preparation, execution and fulfilment of the contractual relationship, in particular business and trade secrets of the other contracting party, and to use these exclusively for the fulfilment of the contractually agreed obligations.

(2) DICOS will obligate its employees and other agents to comply with the data protection requirements of the GDPR. Should it become necessary for DICOS to process the customer’s data as part of the services under the respective contract, the parties shall enter into a separate data contract agreement in this regard.

(3) In all other respects, the customer is responsible for data security.

 

§ 13 Termination of contract

(1) DICOS may terminate the contractually granted rights for good cause, stating the reason and setting a reasonable deadline for rectification. Good cause exists if DICOS, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to allow the software to remain with the customer in the long term, in particular if the customer violates the contract in a significant manner.

(2) In the event of termination of the contract, DICOS may demand that the customer return the items provided or provide written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the items and written assurance that this has been done.

 

§ 14 Rights of set-off / retention

(1) Offsetting by the customer is excluded unless the customer’s counterclaim is undisputed or has been recognised by declaratory judgement.

(2) The customer can only assert a right to refuse performance and a right of retention if the payment claim of DICOS and the counterclaim of the customer are based on the same contractual relationship.

 

§ 15 Changes to the GTC / price changes

(1) DICOS may amend the GTC for good cause. The customer will be notified of changes to the GTC and the reasons for them in writing or text form at least 6 weeks before the changes take effect. The customer has the opportunity to object to the amendment of the GTC in writing within a period of 4 weeks of receiving the notification. If the objection is not made within the specified period, consent to the amendment of the GTC shall be deemed to have been given. The customer shall be explicitly informed of this consequence in the notification of the amendment. If the customer objects to the change to the GTC, DICOS is authorised to terminate the contract with due notice.

(2) DICOS will notify the customer in writing or text form of price changes in the context of continuing obligations at least 6 weeks before they take effect. The price changes at the expense of the customer will become effective if the customer does not exercise his right to terminate the contractual relationship in writing with a notice period of 4 weeks after receipt of the notification of change with effect from the date of the price change (special right of termination).

(3) The notification of price changes must include information on the date on which they take effect and the customer’s special right of cancellation.

 

§ 16 Choice of law / place of jurisdiction

(1) The contractual relationship between the parties and all disputes arising from or in connection with this contractual relationship shall be governed by the law of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded

(2) If the contractual partner is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction is the registered office of DICOS. DICOS is also entitled to sue before a court that is responsible for the registered office or a branch of the customer.

 

 

B. Software development

§ 1 Scope of application

The following conditions apply in addition to the general provisions, insofar as DICOS is contractually obligated to adapt or develop software or other programs to meet the customer’s requirements.

 

§ 2 Project / project management

(1) DICOS shall provide the contractually agreed services in stages, unless otherwise agreed. A “schedule” is to be drawn up for the services to be provided.

(2) DICOS shall notify the customer of delays in performance. DICOS is not responsible for such delays in performance that are due to force majeure or circumstances within the customer’s sphere of influence. These entitle DICOS to postpone the provision of the affected service for the duration of the hindrance plus a reasonable start-up time.

(3) The project management and responsibility lie with DICOS. Agreed changes to the services are documented by DICOS.

(4) The parties shall co-operate in a good faith . If a party becomes aware that information or requirements, whether its own or those of the other party, are incorrect, incomplete, ambiguous or impracticable, it must inform the other party of this and the consequences it recognises. The parties shall then seek a solution that is in their best mutual interests

(5) The customer shall take appropriate provisions to maintain its business operations in the event that the services to be provided by DICOS are not available at short notice.

 

§ 3 Acceptance

(1) Where acceptance is required, acceptance dates shall be bindingly defined in the contract or determined by mutual agreement between the parties.

(2) The acceptance of the service requires a functional test. After completion of individual sections or the entire service, the customer must check whether the service has essentially been provided in accordance with the contract.

(3) A functional test shall be deemed successful if either there are no significant defects or all acceptance criteria agreed between the parties prior to carrying out the acceptance test or in the contract have been met. If the functional test is carried out successfully, acceptance shall be declared immediately.

(4) At the request of DICOS, the customer must confirm the provision of the complete service or the provision of partial services in writing.

(5) If the customer does not declare acceptance without specifying defects within 4 weeks after completion, DICOS may set a reasonable deadline for submitting the declaration. The service or partial service rendered shall be deemed accepted upon expiry of this deadline if the customer neither declares acceptance in writing nor specifies DICOS in writing which defects still need to be rectified.

(6) The service or partial service rendered shall in any case be deemed accepted if

  • the customer uses the service or partial service for productive work, or
  • the customer or third parties carry out independent modifications to the delivered programme or delivered programme parts, or
  • the customer does not provide this confirmation in writing within 7 days of being requested to confirm the service by DICOS (§ 3 para. 4).

 

§ 4 Change requests

(1) The customer can request changes to the agreed scope of services in writing until acceptance. After reviewing the change request, DICOS will explain to the customer the impact of the change request on the agreements made. The presentation contains either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.

(2) If the change request requires an extensive examination of whether and under what conditions the change is feasible, DICOS can demand remuneration for this if DICOS has informed the customer and the customer has then authorized the examination order.

(3) If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged.

(4) Notwithstanding of the above procedure, amendments may be agreed by mutual consent between the parties at any time. The agreements shall be recorded and signed by the parties.

 

§ 5 Service disruptions / warranty

(1) If the Customer withdraws from the contract due to a breach of duty concerning a separable part of the performance that can be rendered independently, the other performances shall not be affected by the withdrawal.

(2) If the contract for the provision of the software to be customised is reversed, the relevant contract with DICOS also ends. If DICOS is not responsible for the cancellation, DICOS can also demand the agreed remuneration for the services that have not yet been provided or not fully provided. However, the expenses saved as a result of the premature termination of the contract or acquired through other use of the labour must be credited.

(3) DICOS may refuse subsequent fulfilment as long as the customer has not yet paid the remuneration owed for the adaptation services in full and the customer has no justified interest in withholding the outstanding remuneration.

(4) DICOS is not liable for defects where the customer has made modifications to the services provided by DICOS, unless these modifications had no influence on the occurrence of the defect.

 

§ 6 Granted rights

(1) Unless otherwise contractually agreed, DICOS grants the customer a simple right of use (hereinafter: “licence”). Subject to other agreements, the licence entitles the customer to install the software or customisation services in the form of the object code and to use it for its intended purpose.

(2) The licence is only transferred at the time of full payment of the remuneration by the customer. DICOS tolerates the use by the customer revocably until full payment of the remuneration. DICOS may revoke the use of such services for which the customer is in default of payment for the duration of the default.

(3) The transfer of the licence shall also be conditionally rescinded subsequent at the time of installation of an executable version of the software as part of subsequent performance, with the result that the customer shall lose the rights of use to the original software granted under this contract.

(4) Unless otherwise agreed, rights of use granted shall only apply to commercial use.

 

§ 7 Licence terms of third parties

(1) The customer may not remove or modify copyright or other property right notices of the respective licensor (DICOS or third-party manufacturer).

(2) Product or service-specific conditions of the contractual software from the respective manufacturer limit the scope of services and delivery of DICOS and take precedence over these GTC in the event of contradictions.

(3) If DICOS is not the manufacturer of the software, DICOS is not responsible for the fulfilment of the manufacturer’s warranty services. Claims arising from the granted warranty are to be asserted solely against the manufacturer or guarantor.

(4) The customer shall adhere the licence conditions of the respective manufacturer.

 

 

C. Software distribution

§ 1 Scope of application

The following terms and conditions apply in addition to the general provisions when DICOS sells its own software or software from (third-party) manufacturers.

 

§ 2 Installation / Handover

(1) DICOS delivers the ordered product by providing a download link to the email address provided by the customer. The customer can use this link to download the product from the DICOS server or the manufacturer’s server.

(2) The risk of accidental destruction, loss or alteration of the product is transferred to the customer when the product is transferred to the customer’s network.

(3) Unless otherwise agreed, the product shall be installed by the customer.

 

§ 3 Grant of Rights of Use

(1) Unless otherwise contractually agreed, DICOS grants the customer a simple right of use.

(2) The granting of rights is subject to the condition precedent of full payment of the remuneration. DICOS tolerates the use in the agreed manner until the remuneration has been paid in full. The toleration is revocable if the customer is in default of payment of the purchase price.

(3) The customer may make a backup copy in accordance with Section 69d (2) of the German Copyright Act (UrhG). The copy must be labelled as such. In addition, the customer must observe the statutory provisions of 69a et seq. of the German Copyright Act (UrhG).

(4) It is not permitted to modify, disassemble or decompile the DICOS software supplied or to use other reverse-engineering methods or to assign these tasks to third parties, unless this is expressly permitted by law.

(5) The use of DICOS software by outsourcing service providers or application service providers for their customers requires additional contractual provisions.

(6) If DICOS is not the manufacturer of the software, DICOS is not responsible for the fulfilment of the manufacturer’s warranty services. Claims arising from the granted warranty are to be asserted solely against the manufacturer or guarantor.

(7) In the context of the transfer of products from third-party manufacturers, the respective conditions of the third-party manufacturers for the transfer and maintenance of standard software, which DICOS provides to the customer upon request, also apply. The customer shall adhere the licence terms of the respective manufacturer.

(8) If the customer sells a product supplied by DICOS to third parties, it must inform these third parties of the manufacturer’s licence terms. The validity of these licence terms should be agreed in the agreement between the customer and the third party.

 

§ 4 Licence audit

(1) DICOS is entitled to verify the actual use of the product delivered by DICOS checked at the customer’s premises. The inspection may only be carried out by an expert who is also bound to confidentiality towards DICOS and who is independent of instructions, and who may only disclose information to DICOS if and to the extent that licence violations exist and to the extent that this is necessary to enforce licence violations.

(2) The inspection must be announced in writing with a notice period of 2 weeks in advance. The inspection must take place during the customer’s normal business hours.

(3) When inspecting and carrying out the inspection, the customer must ensure that no personal data is transmitted or otherwise disclosed to the expert during his inspection. If this cannot be ensured, the parties shall enter into a separate data protection-compliant agreement. Otherwise, the customer is obliged to provide the expert with the information required to carry out the inspection.

 

§ 5 Retention of title

(1) DICOS retains ownership of the ordered products until full payment of all current and future claims of DICOS from the contract and an ongoing business relationship (secured claims).

(2) If the customer acts in breach of contract, in particular in the event of non-payment of the due remuneration, DICOS is entitled to demand the return of the product on the basis of the retention of title, as long as the delay in payment continues and the non-performance justifying the delay is not disproportionately low.

(3) In the case of processing of a product subject to retention of title, its transformation or its combination with another item, DICOS acquires direct ownership of the manufactured item. If, in the case of processing, mixing or combining with products of third parties, their ownership rights remain, DICOS acquires co-ownership in proportion to the invoice values of the processed, mixed or combined items.

 

§ 6 Warranty

(1) The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title, unless otherwise specified below. If only merchants are involved in the contract, §§ 377 ff. German Commercial Code (HGB) apply in addition.

(2) It is agreed, and the customer recognises that, according to the current state of knowledge and technology, it is not possible to create software in such a way that it works error-free under all application conditions. DICOS therefore guarantees that the software provided is free of errors only for those errors that substantially impair its its intended use.

(3) DICOS determines the type of subsequent fulfilment. Subsequent fulfilment can take place through error correction, replacement procurement, updates or releases of a new version of the programme. DICOS can also carry out the subsequent fulfilment by means of remote service.

(4) If DICOS is not in a position to rectify the defect or provide a fault-free replacement, DICOS will show the customer possible workarounds. Insofar as these are reasonable for the customer, they are considered subsequent fulfilment. The right of DICOS to refuse subsequent fulfilment under the legal requirements remains unaffected.

(5) The customer shall not be entitled to any warranty claims,

  • if he does not use the product as intended or misuses it, or
  • if he modifies or alters the product without the prior written consent of DICOS, or
  • if problems or errors are due to the product being used with other programmes that are not compatible with the product ordered,
  • unless the customer can prove that the defect is attributable to the product ordered.

(6) The warranty is excluded for used items.

(7) In the event of cancellation, the customer must return all items received from DICOS for the fulfilment of the purchase contract. In addition, the product must be permanently uninstalled immediately. The uninstallation obligation covers the entire product provided on the basis of the contract (including components that were provided as part of the subsequent fulfilment, for example through updates or another version).

(8) If the customer uses the programme beyond the contractual agreement, he is obliged to pay DICOS compensation for the overuse in accordance with the current price list at the time of the overuse.

© DICOS GmbH Kommunikationssysteme