General Terms and Conditions of Business, Delivery and Licensing of MIDITEC Datensysteme GmbH
Bremen, March 2016
A. General provisions
1. Validity
1.1 Our General Terms and Conditions (GTC) below apply exclusively. Any deviating or supplementary terms and conditions, in particular contractual penalty provisions, of the customer shall not become part of the contract unless MIDITEC has expressly confirmed their validity in writing. Our GTC, in their currently valid version, shall also apply to all future agreements with the customer. We reserve the right to amend these GTC at any time.
1.2 These General Terms and Conditions apply only to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Offers, conclusion of contract, contract content
2.1 Orders submitted to us are considered an offer from the customer. MIDITEC may accept such an offer within four weeks.
2.2 The scope of the services owed is determined conclusively by MIDITEC’s written order confirmation or the respective contract. Unless expressly agreed otherwise, the customer is solely responsible for the selection and suitability of the delivery and service.
2.3 Our offers are subject to change. A contract is only concluded when we confirm the order in writing. If we do not confirm the order in writing, the contract is concluded at the latest upon execution of the delivery or service; in this case, the delivery note shall serve as order confirmation. Our written order confirmation shall be solely decisive for the type and scope of the delivery or service.
2.4 All agreements, as well as any subsequent supplementary or deviating agreements, must be in writing to be effective. This also applies to the waiver of this written form requirement.
2.5 All information in our price lists as well as information and advertising materials regarding dimensions, weights, measurements and other technical data or product characteristics are merely general descriptions and in particular do not constitute any guarantee of quality.
2.6 MIDITEC reserves the right to make customary or technically unavoidable deviations from the contractual item after conclusion of the contract, particularly due to adaptation to technical changes and series production changes by our suppliers. This applies provided that the customer does not experience unreasonable changes as a result.
3. Prices, payment terms and late payment
3.1 Our prices do not include any delivery, transport, and packaging costs, and are subject to applicable statutory sales tax. All services provided by MIDITEC are due for payment immediately and without deduction. Payment terms stated on invoices do not constitute due dates.
3.2 In the event of late payment, we are entitled to charge default interest at a rate of 8% above the base interest rate. The right to claim further damages is not excluded. Default of payment shall occur in particular if the customer does not pay within 10 business days of MIDITEC’s performance.
3.3 We are entitled to refuse all services owed to us under the business relationship or to only provide them against advance payment as long as the customer is in default with their payment obligations. The customer is only entitled to offset or withhold payment if their counterclaim is undisputed or has been legally established.
3.4 If MIDITEC is obligated to provide advance performance, the service may be refused – without default – if, after the conclusion of the contract, circumstances become apparent that indicate that the customer cannot fulfill its consideration, in particular its payment obligation. In this case, MIDITEC is entitled to set a reasonable deadline within which the customer must pay or provide security in return for the provision of the service. After the expiration of this deadline without success, MIDITEC may withdraw from the contract and demand compensation for any damages incurred or wasted expenses.
3.5 The basis for the price is the prices agreed upon at the time of contract conclusion, based on the cost factors applicable at that time. Should these cost factors, particularly those relating to materials, wages, energy, duties, freight, etc., change between the conclusion of the contract and the agreed delivery/performance period, MIDITEC shall be entitled to make a corresponding price adjustment, unless the period between the conclusion of the contract and the agreed delivery/performance period is less than four months.
3.6 The work or services provided by MIDITEC will be invoiced based on the time spent or per piece, unless a flat rate has been expressly agreed.
3.7 The customer must certify the working hours and performance of our staff on the form provided to them. Necessary travel time and any waiting time for which we are not responsible are included in the working hours.
3.8 The travel expenses of the staff, in particular travel and accommodation costs as well as additional expenses for meals, will be invoiced to the customer.
4. Delivery and performance deadlines
4.1 Deliveries are made carriage forward, i.e., at the customer’s expense and risk. If agreed upon, MIDITEC will take out transport insurance at the customer’s expense.
4.2 Delivery and performance times are determined by MIDITEC’s order confirmation or, in the case of immediate contract conclusion, by the contract form. Unless otherwise agreed, the specified dates are approximate. If it is foreseeable that the specified dates will be postponed, MIDITEC will announce the final dates with reasonable notice. MIDITEC is entitled to make partial deliveries and provide partial services; any claims by the customer due to service disruptions are not affected.
4.3 All performance obligations of MIDITEC are subject to timely and correct self-supply. In the event of untimely or incorrect self-supply through no fault of its own, or in the event of other impediments for which MIDITEC is not responsible, MIDITEC is entitled to postpone delivery or performance – without default occurring – for the duration of the resulting impediment.
4.4 If agreed, MIDITEC will connect the hardware and install the software in a fully functional state. Operational readiness and functionality can be verified by trouble-free execution of test programs or a test run. The customer must then confirm operational readiness and functionality by signing a handover protocol.
4.5 Subsequent requests for changes or additions by the customer will extend the delivery or service period appropriately. The same applies in the event of unforeseen circumstances beyond MIDITEC’s control, such as force majeure, labor disputes, strikes, lockouts, or delays in the delivery of essential raw materials, materials, or parts. The same applies if the aforementioned circumstances occur at MIDITEC’s subcontractors/suppliers in a manner unforeseeable by MIDITEC.
4.6 MIDITEC will endeavor to adhere to agreed delivery and service deadlines. If MIDITEC nevertheless defaults on a delivery or service, the customer is entitled – provided they can prove that they have suffered damages as a result – to demand a flat-rate compensation for each completed week of delay amounting to 0.5% of the order value, based on the delayed portion, but not more than 5% of the order value in total. Further claims for damages by the customer due to the delay in delivery or service are excluded. This does not apply if the delay is based on the breach of a material contractual obligation or if MIDITEC is liable due to intent or gross negligence, or for injury to life, limb, or health; this does not entail a change in the burden of proof to the detriment of the customer.
4.7 MIDITEC ships at the customer’s risk. The risk of accidental loss passes to the customer upon dispatch of the delivery items, even if MIDITEC has also provided other services, such as installation. This also applies to partial deliveries.
4.8 If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date on which the customer is notified that the goods are ready for shipment.
5. Acceptance of work
6.1 MIDITEC retains title to the contractual item until all MIDITEC claims arising from the business relationship have been paid in full. 6.2 The customer shall not acquire title to the reserved goods in the event of the processing or finishing of the reserved goods into a new item in accordance with Section 950 of the German Civil Code (BGB). In the event of combining or mixing the goods with other goods not belonging to the customer, we shall be entitled to co-ownership in proportion to the invoice value of our goods relative to these other goods at the time of processing, combining, or mixing.
6.3 The customer is entitled to sell the reserved goods in the ordinary course of business, unless the customer is in default of payment. Any purchase price or work remuneration claims of the customer arising from the resale of our reserved goods are hereby assigned to us in the amount of our invoice value until all our claims have been settled. The customer is revocably entitled to collect these claims.
6.4 The Customer may request the release of the securities if the realizable value of the securities exceeds the outstanding claims by more than 20%; MIDITEC shall be entitled to select the securities to be released.
6.5 The customer is obligated to treat items subject to retention of title with care. This includes, in particular, insuring them at their own expense against theft, damage, and destruction, as well as regularly performing any necessary service work. The customer hereby assigns all claims arising from the insurance contract to MIDITEC. MIDITEC is entitled to request proof of insurance coverage.
6.6 In the event of default in payment or payment difficulties due to a significant deterioration in the financial circumstances, MIDITEC shall also be entitled to revoke the customer’s authority to resell the reserved goods and to collect the claims assigned to us with immediate effect.
6.7 The customer must immediately notify MIDITEC in writing of any seizure or other interference with the delivery items by third parties. In the event of seizure of an item owned by MIDITEC, the customer shall bear all costs of replacement, including legal costs, to the extent that these cannot be recovered from the third party.
6. Retention of title, assignment of claims
5.1 If MIDITEC is obligated to perform work, acceptance shall occur after the agreed service has been provided. Unless otherwise agreed, the work to be performed by MIDITEC shall be performed independently of any obligation to transfer and/or provide hardware and/or software.
5.2 The customer is obligated to accept the work as soon as completion is notified. Evidence of acceptance shall be provided in an acceptance report signed by both parties.
5.3 Acceptance may not be refused due to minor defects. If the customer uses the service without notifying defects or remains silent upon MIDITEC’s request to declare acceptance, the service shall be deemed accepted after a reasonable period of time.
5.4 If the customer fails to accept the contractual item within the agreed time, MIDITEC shall be entitled to demand a flat rate of 10% of the agreed price plus VAT as compensation for damages caused by the customer’s delay in acceptance. Further claims for damages remain unaffected.
7. Customer cooperation
7.1 The customer is responsible for ensuring that MIDITEC can deliver the contractually agreed services, in particular the hardware and software to be provided, to the designated premises by the announced deadlines, connect them up and install them in a functionally ready state, and provide services without hindrance. Any identifiable impediments to performance (company holidays, illness, etc.) must be notified to MIDITEC in writing and with a reasonable period of time in advance.
7.2 To maintain claims for performance and defects, the customer is responsible, in particular, for complying with the following conditions: The customer shall appoint and provide the personnel required to support the connection/installation work. The customer shall perform regular data backups, particularly before performing service work. The customer shall enable a test run or the execution of the test programs under normal operating conditions and shall grant the necessary computing time. For agreed services, any malfunctions that occur shall be reported immediately, along with a detailed description based on relevant documentation, and a contact person shall be named.
7.3 Changes to the customer’s system requirements must be communicated to MIDITEC in a timely manner before completion of the service. Delays and additional costs resulting from such changes in the performance of the service shall be borne by the customer. The same applies to changes to the system requirements after MIDITEC has provided the service for the duration of the warranty.
7.4 If the customer fails to comply with its obligations under this Section 7 or does not do so in a timely manner, MIDITEC shall be entitled, after notice, to perform the actions incumbent upon the customer in the customer’s place and at the customer’s expense. Otherwise, the statutory rights and claims remain unaffected.
8. Copyrights, license conditions for software
8.1 The customer is obligated to respect the copyrights and other intellectual property rights existing in the delivered goods or the works created within the scope of the service provision, in particular in software. If software from a third-party manufacturer (third-party software) is delivered, the customer is obligated to observe the respective license terms.
8.2 If MIDITEC supplies software from third-party manufacturers (third-party software), the customer undertakes to use the supplied software only in accordance with the license terms of the respective manufacturer and, in the event of its resale, if such resale is permitted, to impose the same obligations on the purchaser and to cease all use.
8.3 For the use of MIDITEC standard software, our software license conditions mentioned under B. shall apply in addition, unless otherwise agreed.
8.4 If custom software is programmed/produced for the customer, the customer shall, unless otherwise agreed, receive a simple, non-exclusive right to use the respective service result. The customer has no right to the release of the source code or development documentation. Furthermore, our software license terms listed under B. shall apply in addition to the use of such custom software.
9. Material defects, warranty period
9.1 For an ordered work or delivery, MIDITEC’s general system description shall be the basis of the quality agreement, unless an individual specification or other written service description has been agreed.
9.2 The customer is obligated to inspect and report defects in ordered goods. MIDITEC will only inspect delivered goods for obvious defects. A notification of defects is deemed to have been submitted in a timely manner if it is received by MIDITEC within 7 working days of delivery or, in the case of hidden defects, of discovery. Notices of defects must be submitted in writing.
9.3 In the case of defects reported in a timely manner, work not accepted or accepted only with reservations, and defects not known at the time of acceptance, the customer shall initially be entitled, at our discretion, to repair or replacement delivery/service. We will bear the necessary expenses only.
9.4 If MIDITEC fails to remedy the defect within a reasonable period of time to be set by the customer, or if the repair or replacement delivery/service fails, the customer may, without prejudice to any claims for damages or reimbursement of expenses, at its discretion demand a reduction in the price (abatement) or – if our breach of duty is not merely insignificant – withdraw from the contract. In the event of withdrawal, the customer owes reasonable compensation for the duration of use. The usage fee is calculated based on a linear four-year depreciation.
9.5 The liability for material defects expires if the delivery item or service has been modified by the customer without authorization, in particular by installing third-party parts or, in the case of software, by reprogramming or supplementing the software. In urgent cases, e.g., if operational safety is at risk or to prevent disproportionately large damage, the customer is entitled to remedy a defect itself or have it remedied by a third party and to demand reimbursement of the necessary expenses from MIDITEC. The same applies if MIDITEC is in default with the remedy of a defect. MIDITEC must be notified immediately of the measure.
9.6 The warranty period is 12 months. Claims for defects – including claims for damages and reimbursement of expenses due to defects – expire twelve months from delivery (for deliveries) or from acceptance (for work). This does not apply if the claims for defects are based on intent or gross negligence on the part of MIDITEC. We are liable for replacement parts or repairs until the expiration of the limitation period applicable to the original delivery or service item.
9.7 In the event of a complaint about defects, the customer’s payments may only be withheld to an extent that is proportionate to the defects that have occurred, if the customer’s claims are undisputed or legally established. In the event of a complaint about defects that is unjustified, MIDITEC is entitled to demand reimbursement of the incurred expenses from the customer.
10. Supplementary provisions for the warranty for software
10.1 The subject matter of the warranty for software is the information provided in the respective program documentation. This and other program descriptions do not constitute a guarantee of quality.
10.2 A material defect exists if the software fails to fulfill the functions specified in the program documentation. For example, it delivers incorrect results, terminates its operation uncontrollably, or otherwise fails to function properly, thus preventing or significantly impairing the usability of the software. Imperfections in the software that do not frustrate or significantly impede its intended use are not covered by the warranty.
10.3 The warranty excludes software defects caused by application errors on the part of the customer. This also applies to non-existent or inadequate backup measures; to virus infections or other external influences for which MIDITEC is not responsible, which are based on errors in the hardware, operating system, or software from other manufacturers, or which are based on modifications to the software, hardware, or system environment for which the software was configured by the customer or third parties.
10.4 If an error occurs as defined in Section 10.2, the customer is obligated to provide MIDITEC with all information necessary for error analysis and rectification, and to grant MIDITEC or its authorized personnel unrestricted access to the software and the customer’s system on which it is installed. An error report must contain information about the type of error, the application in which the error occurred, and the work performed to correct the error. The error must be described in such a way that it is reproducible. If the error results from interaction with a database, the customer is obligated to provide MIDITEC with access to the database and the data contained therein for the purpose of troubleshooting and correcting the error. If an error analysis requested by the customer reveals that there is no error that MIDITEC is obligated to correct, the customer may be charged for the costs incurred.
10.5 MIDITEC will correct errors in the currently published software release. Therefore, error correction requires that the customer has installed the software updates released during the warranty period, or that installation is still possible. The customer shall bear the costs of correcting errors resulting from the installation of updates if they fail to install them after their release.
10.6 The provisions in Section 9 of these Terms and Conditions shall apply in addition.
11. Legal defects
11.1 If, despite MIDITEC’s existing assurance that the delivered items and services provided are free from third-party rights, third parties assert such rights, the Customer shall immediately inform MIDITEC of the assertion of such rights and grant MIDITEC all powers of attorney and authority necessary to defend the Customer against the asserted third-party rights.
11.2 If it is established that defects of title exist, MIDITEC shall be entitled, at its own discretion, to take appropriate measures to release the contractual use of the delivery item or service result from the impairing rights of third parties or to remove the assertion or to modify or replace the delivery item or service result in such a way that they no longer infringe the rights of third parties, if and to the extent that the guaranteed functionality is not thereby impaired.
11.3 If MIDITEC fails to remedy the legal defect within a reasonable period of time to be set by the customer, the customer may, without prejudice to any claims for damages or reimbursement of expenses, at its discretion demand a reduction (reduction of the agreed remuneration or purchase price) or – if the legal defect is not merely insignificant – withdraw from the contract.
11.4 Clause 9.6 shall apply accordingly to the limitation period for claims based on defects of title.
12. Training
12.1 MIDITEC conducts training courses at its own training center or, upon agreement with the customer, at the customer’s premises. Participants are instructed in the operation of MIDITEC products or are instructed on specific topics.
12.2 Training courses are subject to a fee. A commissioned training course can be canceled free of charge if the cancellation is received in writing by MIDITEC no later than 14 days before the start of the course. Any advance payments already made by the customer will be refunded by MIDITEC within 30 days.
12.3 The Customer is obligated to pay the agreed fee if he does not participate in the event or does not cancel his participation in a timely manner in accordance with clause 12.2.
13. Liability
13.1 Subject to the provisions of No. 13.2, MIDITEC shall be liable in accordance with the statutory provisions if the customer asserts claims for damages or reimbursement of expenses that are based on intent or gross negligence or if MIDITEC culpably breaches a material contractual obligation (cardinal obligation), as well as in cases of injury to life, body or health.
13.2 In the event of simple negligence, claims for damages and reimbursement of expenses shall become time-barred one year from the time the claim arose and the customer became aware of the circumstances giving rise to the claim or would have become aware of them without gross negligence, and, regardless of such knowledge or lack of knowledge, three years from the time the claim arose.
13.3 Furthermore, liability for damages in these cases is limited to the foreseeable, typically occurring damage, but not more than €250,000 per claim.
13.4 Liability for data loss is limited to the recovery costs that would have been incurred if data backups had been carried out regularly and in accordance with the risks involved.
13.5 Any liability for damages or reimbursement of expenses beyond those provided for in these Terms and Conditions is excluded, regardless of the legal nature of the asserted claim, unless a separate agreement has been reached regarding the amount of damages. Liability is also excluded for indirect damages, consequential damages, and lost profits.
13.6 To the extent that MIDITEC’s liability is excluded under these Terms and Conditions, this shall also apply to the liability of its bodies and vicarious agents, in particular its employees.
14. Protection of confidential information
14.1 Each contracting party shall treat all business and trade secrets of the other party that become known to it within the scope of the business relationship as confidential and shall use them only for the purposes of the respective contract. Unless this is necessary to achieve the purpose of the contract, they shall not disclose them to third parties or exploit them in any way. Employees and third parties shall be bound by this obligation. This obligation shall not apply to technical or business information that was already known to the recipient before receiving it from the other party, or to information that becomes public knowledge without violating this obligation, or that has been approved for publication in writing by the other party.
14.2 The obligation of confidentiality shall continue to apply even after the termination of the respective contract.
14.3 To protect personal data, MIDITEC will comply with the data protection regulations, in particular obliging the persons it employs to fulfil the contract to maintain data secrecy within the meaning of Section 5 of the German Federal Data Protection Act (BDSG) in the event of data processing.
15. Device return and disposal
15.1 The customer undertakes to dispose of the delivered goods properly at his own expense in accordance with statutory provisions after they have ceased to be used.
15.2 The customer indemnifies MIDITEC as manufacturer from the legal obligations arising from Section 10 Paragraph 2 of the Electrical and Electronic Equipment Act (ElektroG) (“Manufacturer’s obligation to take back”) and any related claims of third parties.
15.3 In the event that the customer intends from the outset to resell the commercial products (B2B devices) purchased from MIDITEC to third parties, the customer hereby undertakes to agree with its customers and all subsequent users on behalf of MIDITEC that the respective purchaser will fully assume the manufacturer’s disposal obligation in accordance with Section 10 Paragraph 2 of the ElektroG (German Electrical and Electronic Equipment Act). MIDITEC hereby consents to a subcontracting of this obligation and hereby authorizes the customer to transfer the above-agreed obligation with its customers to its customers in accordance with Section 10 Paragraph 2 Sentence 3 of the ElektroG on behalf of MIDITEC.
15.4 If the Customer fails to fulfill its contractual obligations contrary to the above clause 14.3, the Customer remains obligated to take back the delivered goods at its own expense after the end of use and to dispose of them properly in accordance with statutory provisions.
16. Offsetting
16.1 The customer shall only be entitled to offset or retain payment claims from MIDITEC if the claim is undisputed or has been legally established.
17. Final provisions
17.1 The law of the Federal Republic of Germany applies.
17.2 The place of jurisdiction for all disputes arising from the business relationship is Bremen. MIDITEC is also entitled to sue the customer at his or her general place of jurisdiction.
17.3 Should individual parts of these Terms and Conditions be invalid, this shall not affect the validity of the contracts concluded on the basis of these Terms and Conditions and the remaining parts of the Terms and Conditions.
B. Special provisions for the provision of software
1. Software license, usage rights, source codes
1.1 MIDITEC shall provide software services by providing, at its own discretion, (i) one (1) copy of the software on a machine-readable data carrier and one (1) copy of the application documentation to the customer or (ii) making the software and the application documentation available for download on a network and informing the customer of this along with the download data.
1.2 MIDITEC grants the customer, within the scope of the following provisions and subject to the condition precedent of the full payment of consideration, a perpetual, non-exclusive, and – subject to Section 4 – non-transferable and non-sublicensable simple right of use for the software provided. The scope of the right of use for software from other manufacturers (“Third-Party Software”) is determined by the respective manufacturer’s terms of use, to the extent that these terms become part of the contract. The grant of rights is revocable until the full payment of consideration owed.
1.3 Our customer is entitled to use the software on the hardware available to him within the framework of the contractual and legal provisions. Simultaneous use on more than one piece of hardware or in a network (simultaneous multiple use) requires a separate agreement – if such multiple use falls outside the intended use – and is subject to separate payment in each case. In the event of a change of (operating) hardware or a permitted transfer of the software to third parties, the software must be deleted from the previously used hardware.
1.4 MIDITEC is neither obligated to provide nor disclose the source code of the software. Furthermore, MIDITEC is not obligated to further develop the software unless MIDITEC has committed to this in the product description or order confirmation. The customer is not entitled to modify, edit, or reproduce the software provided without MIDITEC’s consent, unless this is necessary within the scope of its intended use (Section 69d of the German Copyright Act – UrhG). Decompilation is permitted only in accordance with the provisions of Section 69e of the German Copyright Act.
1.5 The customer is not entitled to transfer its right of use to third parties or to grant them a corresponding right of use (sublicense). This does not affect the customer’s right to resell acquired software (purchase) subject to definitive cessation of its own use, binding the purchaser to the applicable terms of use, and deleting any necessary copies (backup copies). In the event of a sale, MIDITEC must be notified immediately in writing of the purchaser’s name and address.
1.6 The above provisions apply accordingly to user and operating documentation. MIDITEC is entitled to provide documentation in electronic form and in German or English.
2. Termination of the grant of rights
2.1 In the event of a breach of contract, in particular of the above provisions or applicable export control regulations, MIDITEC shall be entitled, among other things, to demand injunctive relief, if applicable, the surrender or destruction of illegally produced copies, as well as damages. MIDITEC’s right to terminate the right of use with immediate effect or to withdraw from the contract remains unaffected. License fees already paid will not be refunded.
2.2 Upon termination of the license, e.g., upon final refusal of payment, the customer’s right to use the software expires. The customer must return all original data storage media, backup copies, or other copies of the software stored on separate data storage media, along with the provided program documentation, to MIDITEC and delete all copies of the software installed on their system. Complete return or deletion must be confirmed to MIDITEC in writing and, if requested by MIDITEC, provided in an appropriate form, e.g., by submitting an affidavit.
2.3 These General Software License Terms also apply to new versions (updates) and extensions of the software (upgrades) provided to the customer by MIDITEC after conclusion of the contract, unless otherwise agreed upon when providing the respective new version or extension. Unless these General Software License Terms contain separate or deviating provisions, MIDITEC’s General Terms and Conditions otherwise apply to the provision and use of the software.
