General Terms and Conditions
of müller+krahmer GmbH, Koenitzer Strasse 14, 07338 Kaulsdorf / Thuringia / Germany
1. Scope of application
These General Terms and Conditions of Business and Delivery of müller+krahmer GmbH govern the legal relationship between müller+krahmer GmbH and the client. The validity of deviating terms and conditions of the client is excluded, even if müller+krahmer GmbH does not expressly object to them.
2. Delivery and dispatch
All offers, recommendations and cost calculations of müller+krahmer GmbH are subject to change and non-binding. müller+krahmer GmbH is entitled to make partial deliveries and deliveries of prototypes. Services, documentation, source codes and support are only included in the scope of delivery if they are explicitly offered and ordered.
All delivery dates stated by müller+krahmer GmbH are non-binding delivery dates, unless a delivery date is expressly agreed in writing as binding. Agreed delivery dates shall apply from the date of the order confirmation and shall be postponed accordingly if the client requests changes or additions after the order has been placed. If the required cooperation of the client or a third party commissioned by the client is not provided or not provided on time, or if other circumstances occur that do not allow the delivery date to be met, for which müller+krahmer GmbH is not responsible, müller+krahmer GmbH shall not be liable for the resulting delay.
3. Terms of payment
Payment is due immediately upon invoicing. Any payment terms agreed to the contrary shall be stated in writing in invoices. The client shall automatically be in default, even without prior reminder, if the invoice is not paid within 30 days of the due date and receipt. In the event of default, müller+krahmer GmbH is entitled to withhold further deliveries and services. In addition, interest in the amount of 9 percentage points above the respective base interest rate of the Deutsche Bundesbank will be charged – subject to the assertion of further damages caused by default. All prices are exclusive of statutory value added tax.
4. Withdrawal / Default of acceptance
Insofar as components necessary for the provision of the services, but not manufactured by müller+krahmer GmbH itself, are the subject of the contract, müller+krahmer GmbH is entitled to withdraw from the contract insofar as a delivery is not made by the respective supplier.
GmbH shall be entitled to withdraw from the contract if delivery is not made by the respective supplier. However, this shall only apply if müller+krahmer GmbH is not responsible for the non-delivery. In this case, the client will be informed immediately of the non-availability of the service and any consideration already paid up to the time of withdrawal will be refunded.
If the client is in default of acceptance or culpably violates other obligations to cooperate, müller+krahmer GmbH is entitled to demand compensation for the damages incurred in this respect, including any additional expenses. Further claims remain reserved.
5. Offsetting / Right of retention / Assignment
The client may only offset against claims of müller+krahmer GmbH if the client’s claim for offsetting is based on this contractual relationship and has been legally established or is undisputed.
The exercise of a right of retention against claims of müller+krahmer GmbH is permissible if the customer’s claim is based on this contractual relationship and has been legally established or is undisputed.
An assignment or transfer of claims, rights or obligations arising from the contractual relationship by the client requires the prior written consent of müller+krahmer GmbH.
6. Provision of services
The provision of services by müller+krahmer GmbH takes place in several steps. The following regulations apply:
6.1 Offer
Unless otherwise agreed in an individual contract, the client is obliged to submit a specification sheet with a catalog of requirements, on the basis of which müller+krahmer GmbH will prepare an offer with a detailed calculation. Insofar as it is agreed that müller+krahmer GmbH will also process the specifications, this service shall be remunerated separately. The version declared final by the client shall become part of the contract.
6.2 Preparation of specifications
On the basis of this offer, the customer requirements shall be incorporated into a functional specification with a detailed concept, milestone and time schedule. Upon acceptance of this specification sheet by the customer, the first advance payment – unless otherwise agreed in the amount of 30% of the total sum – shall be due. If the specifications are rejected, müller+krahmer GmbH has the right to make two subsequent improvements. If acceptance does not take place thereafter, the client shall pay the agreed remuneration for the specifications and the contract shall be deemed terminated.
6.3 Implementation
Implementation begins with the acceptance of the specifications. The customer receives one or more prototypes to assess the fulfillment of objectives. Changes and deviations require the consent of both parties. In the case of extensions or changes to program parts that have already been implemented, an extension offer including a cost estimate and time schedule shall be sent by e-mail, which the customer must order in writing, at least by e-mail. During acceptance, the defined requirements are compared with the actual functions of the application by means of a written acceptance report together with the customer. Acceptance shall take place within 14 days of provision and notification to the customer. The customer is obliged to accept the product, whereby the acceptances or partial acceptances are subdivided according to the milestone plan. If employee instruction or training is included in the scope of delivery, this shall take place during commissioning and acceptance. For commissioning and acceptance, the customer must create the conditions defined in the specifications and provide the required tools, samples, equipment and suitable personnel. Acceptance shall be deemed to have taken place if the customer signs the acceptance report without any open points or does not carry out acceptance within the specified period and without giving reasons. If there are significant deviations, the open points are recorded in writing in the acceptance report and a preliminary acceptance with defects is certified. The deviations will be rectified by müller+krahmer GmbH within a reasonable period of time and the result submitted for renewed acceptance. Acceptance shall be deemed to have taken place at the latest upon payment or use of the product.
6.4 Support
After successful acceptance, the client can call up the ordered support contingent. This will be recorded in writing in a performance report. Support requests that are clearly attributable to a previously hidden error shall not contribute to the reduction of the support quota. The same applies to customer feedback with suggestions for improvement for the continuous software improvement process. Improvements to the product will be delivered to the customer with the next regular update. There is no legal entitlement to the implementation of improvement suggestions. This is voluntary.
7. Licensing
The ownership of the software developed by müller+krahmer GmbH is not transferred to the client. Rather, the client receives a right of use in the form of a single-user license for installation and use on a project-specific target system defined when the order is placed. Any deviating rights of use must be expressly agreed in writing between müller+krahmer GmbH and the client. All copyrights and intellectual property rights as well as the rights to reproduce and edit the sources remain with müller+krahmer GmbH. When purchasing source codes, müller+krahmer GmbH reserves the right to encrypt non-customized code parts or to provide them with further protective measures. The transfer of applications and sources to third parties or their use on undefined target systems is prohibited without the written permission of müller+krahmer GmbH. The client must take appropriate measures to ensure that the agreed and existing license and copyright laws are not violated by him or third parties. In the event of violations of the usage and license agreements, the client shall pay a contractual penalty of five times the amount of the license fee for each case of violation, whereby müller+krahmer GmbH reserves the right to assert claims for demonstrably higher damages.
If software or components from third parties are used for the realization of a project, the terms and conditions of the respective manufacturer shall apply to these projects. The customer is not entitled to sell the products.
8. Liability and warranty
müller+krahmer GmbH shall be liable in cases of intent and gross negligence as well as in cases of injury to life, body and health in accordance with the statutory provisions. müller+krahmer GmbH is only liable for property damage and financial loss caused by slight negligence in the event of a breach of such obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the client may regularly rely, whereby liability is limited to compensation for typical foreseeable damage. The same applies to the liability of müller+krahmer GmbH for vicarious agents. Liability on the part of müller+krahmer GmbH is excluded insofar as damages arise as a result of incorrect operation or non-compliance with operating instructions on the part of the client. Liability is otherwise excluded.
To the extent permitted by law, the warranty is limited to 12 months from acceptance by the customer. This does not apply to the absence of warranted characteristics and/or fraudulent concealment of a defect. The warranty does not cover the elimination of faults caused by external influences, parameterization or operating errors. If the client modifies software or components himself or has them modified by third parties, warranty claims are excluded. müller+krahmer GmbH shall provide a warranty for any defects, either by repairing or replacing the product. Defects must be reported in writing by the client within the warranty period.
9. Confidentiality obligation
müller+krahmer GmbH and the client mutually undertake to keep all business and trade secrets of the other party confidential for an indefinite period of time and not to disclose them to third parties or exploit them in any way, unless statutory claims of third parties apply in this respect. Documents, source code and other information that the contractual partner receives as a result of the business relationship may only be used by the contractual partner within the scope of the respective contractual purpose. The use of customer data for own advertising purposes in similar product segments is not excluded. The customer may object to this use at any time without incurring any further costs for the objection than for the determination according to the basic rates.
10. Place of jurisdiction / Place of performance / Written form requirement
The place of jurisdiction is Saalfeld. The relations between the parties are subject to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. The place of performance is the respective registered office of müller+krahmer GmbH. Verbal collateral agreements do not exist. Amendments and additions to contracts and these terms and conditions must be made in writing.
11. Severability clause
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by a provision that comes closest to the intended purpose.