1. Subject matter of the contract
1.1 These GTC shall apply between VTA Software & Service GmbH (hereinafter referred to as "VTA") and its contracting party (hereinafter referred to as "Customer") within the scope of contracts for the delivery of Software (Software as a Service).
1.2 These GTC shall also apply to contracts for other additional one-time services which VTA concludes towards the customers in connection with the delivery of the Software, as far as they are applicable to them.
1.3 The respective software functions of the Software provided are set in the respective service description enclosed with the offer.
2. scope of application
2.1 These GTC apply exclusively within the territory of the Federal Republic of Germany.
2.2 Services and offers shall be provided exclusively on the basis of these GTC. They shall also apply to all future transactions with the customer, insofar as these are legal transactions of the same or a related nature.
2.3 The customer's terms and conditions of business and purchase are hereby rejected.
2.4 These General Terms and Conditions shall apply exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) as well as to legal entities under public law or to a special fund under public law within the meaning of § 310 paragraph 1 sentence 1 of the German Civil Code (BGB). Prior to the conclusion of the contract, VTA may require that the customer sufficiently proves its entrepreneurial status, e.g. by providing its VAT ID number or other suitable evidence. The data required for this purpose shall be provided completely and truthfully.
3. Scope of Services and Content
3.1 VTA shall provide the customer with the Software in terms of the service description for a limited period of time for the contractual term set in the offer and shall grant the customer the access rights required for the contractual use in accordance with the offer or the contract and these GTC.
3.2 VTA shall take over the maintenance of the provided software and shall provide support services to the customer. The maintenance services as well as the services of the customer support can be found in the respective service description.
3.3 Use/granting of rights
3.3.1 The software shall be operated by VTA on a central server in a secured data center, unless otherwise agreed in the offer. Access to the functions of the software shall be provided via the internet as SaaS (Software as a Service) on the basis of user name and password (use of web services or file interfaces).
3.3.2 The functionality of the software shall be considered to be proven if all interfaces at the customer's site work without errors.
3.3.3 Further details can be found in the respective service description.
3.4 "Customer Support" services
3.4.1 VTA shall provide the following services to the customer within the scope of customer support:
- Consulting and support services in connection to the functions of the software;
- Handling of errors that occur during the proper use of the software;
- consulting and support services in connection with updates of the software.
3.4.2 Error handling includes isolating the cause of the error, error diagnosis and services aimed at correcting the error, provided that the error is rooted in the software.
3.4.3 Not covered by customer support are:
- Services outside the agreed periods of support coverage;
- Services which become necessary because the customer does not fulfill his obligations to cooperation.
3.4.4 Customer support shall only be provided during the times specified in the service description enclosed with the offer.
3.4.5 After receipt of a sufficiently specified error description, which includes error behavior, affected components of the software and steps already taken, the reaction times of VTA specified in the respective service description shall apply. Reaction time means the period of time within which VTA will begin with the work.
3.4.6 Further details can be found in the respective service description.
4. cooperation obligations of the customer
4.1 The customer shall cooperate closely and efficiently with VTA, for which the customer's personnel, organizational, professional and technical responsibility is also essential. In particular, the customer shall perform the following duties to cooperate:
4.1.1 The customer shall provide VTA with all documents, documentation and information required for the proper performance of VTA's obligations.
4.1.2 The customer shall provide VTA with test data to the extent available.
4.1.3 The customer shall document errors detected during the test or live operation in a reproducible or at least in a comprehensible form and shall inform VTA immediately about the documented errors.
4.2.The customer shall name at least one employee to VTA as contact person (VTA shall be informed immediately of any changes in this regard). The contact person must have experience in using the software. Only the contact person or a representative designated by the contact person shall be entitled to submit error reports.
4.3 Prior to submitting an error message, the customer shall, within the scope of its possibilities, perform an analysis of the system environment in order to ensure that the error is not due to system components which are not subject of the contract with VTA.
4.4 If the customer fails to comply with its duty to cooperate and VTA is therefore unable to provide customer support properly or only at unreasonable additional expense, VTA shall be released from its obligation to perform. Additional expenses caused by the above-mentioned non-compliance with the duty to cooperate shall be compensated to VTA in addition to the agreed compensation on the basis of the customer's separately concluded compensation agreement.
5. Compensation
5.1 The compensation for the services results from the price list, which is handed over with the offer.
5.2 Services outside the subject matter of the contract as well as other one-off services according to item 1.2. shall be compensated separately according to the respective offer.
5.3 The prices may be adjusted based on changes in the determining factors. An adjustment shall then be made in proportion to the respective changes. VTA shall notify the customer of the price adjustment by handing over the adjusted price list and informing the customer of the changed price-determining factors. The new price list shall apply from the billing period following the handover of the adjusted price lists. If the customer requests an adjustment of the price list due to changes in the price-forming factors, VTA shall adjust the price list accordingly as soon as the customer so requests. Price-forming factors are, in particular, wage, material and financing costs, levies/surcharges, license costs, hardware costs and costs for data centers. In case of a price change of more than 5%, both contracting parties have a special right of cancellation with a notice period of one month.
5.4 The Customer shall be obligated to sign the submitted acceptance protocols without unreasonable delay, at the latest, however, within 10 days of receipt. If the customer does not agree with the acceptance protocols, it must state any concerns in detail in writing within this period. The parties shall then immediately attempt to reach a clarification. After reaching an agreement, the acceptance protocols have to be signed by the customer without delay.
5.5 VTA will invoice the compensation according to the price list or the respective offer. Invoices are payable without deduction within 30 days of the invoice date. If the customer is in delay with the payment, the outstanding amount will be charged with interest at the legally valid base interest rate. This will not affect the assertion of further rights.
5.6 Unless explicitly agreed otherwise, all amounts stated in the price list are net amounts, i.e. plus the VAT (tax) required by law. VTA shall show the tax rate and the amount of the value added tax separately on the invoice.
5.7 The parties agree that the customer shall be the exclusive debtor of the compensation for VTA also with regard to the agreed use by the companies specified conclusively in the Order Processing Agreement included in the offer. However, VTA agrees, at the customer's request, to invoice the individual companies mentioned conclusively in the order processing agreement in accordance with the actual use by these companies.
6. Liability for defects
6.1 VTA warrants that the software essentially corresponds to the product description. Claims for defects shall not exist in the event of an insignificant deviation from the agreed or assumed quality and in the event of only minor interference with the suitability for use. In the event of version changes/updates, VTA shall take into account the criteria for the functional capability of the system according to 3.3.3.
7.
If the customer demands additional performance due to a defect, VTA shall have the right to choose between reworking, replacement delivery or replacement performance. If the customer has set VTA another reasonable period of time after a first deadline has expired without result and this period of time has also expired without result, or if a reasonable number of attempts to repair, replace or provide substitute performance have remained unsuccessful, the customer may, subject to the legal requirements, at its option terminate the contract or reduce the compensation and claim damages or refund of expenses. Subsequent performance may also be effected by installing a new program version or a work-around. If the defect does not affect the functionality or affects it only insignificantly, VTA shall be entitled, to the exclusion of further warranty rights, to repair the defect by installing a new version or an update within the scope of its version, update and upgrade planning.
7.1 Errors shall be notified by the customer in text form by a comprehensible description of the error symptoms, as far as possible proven by written records, screenshots or other documents illustrating the defects. The notice of defect shall enable the reproduction of the defect. Legal obligations of the customer to examine and give notice of defects shall remain unaffected.
7.2 Claims for damages shall be subject to the restrictions of clause 9.
7.3 VTA may refuse subsequent performance if and as long as the customer is in default of at least 6 monthly installments of the agreed compensation. This shall not apply if a justified suspension of the payment by the customer due to significant defects has been agreed in written form.
8. Liability for legal mistakes
8.1 VTA warrants that the Software delivered or made available by it is free from any third party rights which might prevent its use in accordance with the contract. This shall not apply to customary reservations of ownership.
8.2 If third parties are entitled to such rights and assert them, VTA shall do everything in its power to defend the software against the rights asserted by third parties at its own expense. The customer shall immediately notify VTA in written form regarding the assertion of such third party rights and grant VTA all powers of attorney and authority required to defend the software against the asserted third party rights.
8.3 To the extent that defects in the rights exist, VTA shall be entitled to take lawful measures to eliminate the rights of third parties which impair the use of the software in accordance with the contract, or to assert such rights, or to modify or replace the software in such a way that it no longer violates third-party rights (if and to the extent that the functionality of the software owed is not significantly affected thereby). VTA shall be obligated to refund the necessary recoverable costs incurred by the customer for the legal prosecution.
8.4 If the release pursuant to clause 8.3 fails within a reasonable grace period set by the customer, the customer may, subject to the legal requirements, at its option terminate the contract or reduce the purchase price and claim damages.
9. Liability, Compensation
VTA's liability - irrespective of the legal grounds - shall be limited, to the extent that a fault is involved, in accordance with the following regulations.
9.1 VTA shall not be liable in case of simple fault on the part of its legal representatives, employees or other vicarious agents, unless a breach of an essential contractual obligation ("cardinal obligations") is involved. Cardinal obligations are those essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the performance of which the Customer may rely. Furthermore, these include such obligations of VTA which are intended to protect the life or limb of the customer's personnel or third parties or the customer's property from significant damage.
9.2 VTA is liable for the loss of data only up to the amount that would have been incurred to restore the data if the data had been properly and regularly backed up. .
9.3 To the extent that VTA is liable for damages on the basis of clause 9.2, such liability shall be limited to the extent of the damage which VTA had foreseen at the time of the conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen, taking into account the circumstances of which it was aware or which it should have been aware, if it had exercised due diligence. Clause 9.5. shall apply accordingly.
9.4 VTA is only liable for direct damage and not for indirect damage such as loss of profit as well as for consequential damage resulting from defects of the services provided by VTA. VTA always adapts the software to the current customs regulations. VTA shall also be liable for this to the extent stated. However, VTA shall not be liable for any damage incurred by the customer due to customs and/or tax regulations and which is attributable to the use of the software or to other services provided by VTA.
9.5 In the event of liability for simple negligence, VTA's liability for damages shall in any case be limited to an amount equal to three times the annual remuneration, even if a breach of material contractual obligations is involved.
9.6 The above exclusions and limitations of liability shall apply to the same extent to the personal liability in favor of VTA's corporate bodies, legal representatives, employees and other vicarious agents.
9.7 Insofar as VTA provides technical information free of charge outside of existing contractual relationships or acts in an advisory capacity by means of recommendations or advice and such information or advice is not part of the contractually agreed scope of services owed by VTA, this shall be done free of charge and to the exclusion of any liability.
9.8 The limitations of this clause 9 shall not apply to VTA's liability for intentional acts, for guarantees given, for injury to life, body and health or under the Product Liability Act.
10. Confidentiality, Data Protection
10.1 The parties commit themselves to treat all confidential information of which they become aware during the performance of this contract as confidential and to use it only for contractually agreed purposes. Confidential information within the meaning of this term shall be information, documents, details and data which are designated as such or which, by their nature, are to be regarded as confidential. VTA undertakes to grant access to confidential information of the customer only to such employees who are entrusted with the performance of services under this contract. Both parties are obligated, upon request of the other party, to have their employees sign a corresponding declaration of obligation and to submit it to the other party. The parties shall not file any applications for property rights for confidential information of the respective other party.
10.2 After consultation with the customer, VTA may use (publish) the fact of the customer's use of the software as a reference.
10.3 If confidential information in the aforementioned sense is requested by a public authority, the customer's consent shall be obtained in advance.
10.4 The rights and obligations under clauses 10.1. and 10.2. shall not be affected by termination of this agreement.
10.5 Both parties shall be obligated to return confidential information to the other party upon termination of this agreement at the other party's option or to destroy it if it has not been properly consumed (e.g. data that has already been deleted due to the end of the retention period).
11. Offer and conclusion of contract
11.1 Offers of VTA are subject to change without notice, unless they are expressly designated as binding.
11.2 The acceptance of the offer by the customer shall be qualified as an offer to conclude a contract. The acceptance of the offer by the customer shall be made by sending a declaration in text form.
11.3 The conclusion of the contract shall be effected upon confirmation of the customer's acceptance by VTA in text form (confirmation of contract). VTA is not obligated to confirm.
12. Duration and termination
12.1 The contract shall have the duration stated in the offer. If it is not terminated at the end of the duration, the contract shall be automatically extended by a further year. The notice period shall be three months in each case, unless otherwise agreed in the offer.
12.2 VTA is entitled to an extraordinary right of termination if
- a customer fails to fulfill a material obligation and this breach has not been remedied within 14 days despite a written reminder. An essential obligation is, in particular, the timely and proper performance of the cooperation obligations,
- the customer ceases or threatens to cease business operations;
- the financial situation of the customer deteriorates significantly, which disturbs the basis of trust for the performance of the contract between the parties, in particular insolvency or over-indebtedness, foreclosure or protest of a check or bill of exchange,
- the Customer fails to obtain or loses a required permit, license or registration to conduct business under this Agreement.
12.3 The right to terminate without notice for good cause shall remain unaffected.
12.4 Terminations are required to be made in text form.
12.5 In the event of termination of the contract, the customer must
- customer also terminate the use of the Software and remove all installed components from its computers.
- hand over to VTA the data and logs stored on behalf of the customer and subsequently delete them from the system.
13. Final Terms
13.1 VTA shall have the right to use subcontractors for the performance of this contract.
13.2 Any changes to the contract shall be made in written form in order to be effective. This also applies to the change of this written form requirement.
13.3 This contract is subject to the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.
13.4 The place of business of VTA is the exclusive place of jurisdiction for all disputes arising from and in connection with this contract.
13.5 If personal data are processed and/or stored for the customer, the "Agreement on Order Data Processing" between the customer and VTA applies in the respective current version.