General Terms and Conditions of LuArtX IT GmbH
§ 1 Area of application
(1) The business conditions here apply to the contractual relationships between LuArtX IT GmbH (subsequently referred to as “LuArtX IT”) and its customers, and regulates especially the transfer of software (“products”) and the concession of usage rights in compliance with § 6. They also regulate, as a supplement, the contractual relationships in terms of the individual agreements made. In the case of objections, written agreements or written confirmations of agreements by LuArtX IT have priority.
(2) When similar contracts are concluded, the conditions here shall also apply to subsequent agreements when the submission of the declaration here is made by the customer to the version that can be called up at www.luartxit.de, even if LuArtX IT does not again point this out.
(3) Contractual proposals by LuArtX IT are non-binding – unless otherwise designated in the proposal. They become binding when signed by both sides, on written order confirmation by LuArtX IT or on the start of service provisions by LuArtX IT. LuArtX IT can demand written confirmation of verbal contract declarations made by the customer. The customer is bound for four weeks to his declarations on conclusion of a contract.
§ 2 Contractual object
(1) LuArtX IT
- makes the basic software available to the customer,
b. develops modules for the customer and
c. adapts existing modules to the individual requirements of the customer.
The ownership of the newly developed modules passes over to the customer.
(2) If LuArtX IT participates financially in the (further)development, LuArtX IT shall become an equal proprietor of the modules.
(3) The customers shall commission LuArtX IT with the maintenance, care and provision of the basic software. The software will also be made available to external partners of the customers on payment of a separate remuneration.
(4) The customer himself will install the products, put them into operation and also check himself their usefulness on his system.
LuArtX IT will support the customer here as long as there is a written agreement on separate remuneration for this. All support services in this respect, e.g. preparation for use, installation and demonstration of successful installation, will be charged according to costs incurred unless otherwise agreed in writing. If LuArtX IT (according to a separate agreement) performs the installation, the customer shall give written confirmation of a successful completion.
(5) LuArtX IT will decide, subject to written deadline agreements, on an expected provision date and notify the customer of this. If necessary documents etc. from the customer are not yet available, the provision date shall be correspondingly shifted until the documents are received.
(6) In addition, the statutory provisions for the supply of products are governed by paras. Sections 433 ff. of the BGB (German Civil Code), and additional services that are separately remunerated shall comply with Sections. 611 ff. of the BGB. The purchaser shall examine the delivered product without delay and, if defects are present, indicate these immediately.
If the purchaser fails to do so, the product is accepted as approved unless it concerns a defect that could not be determined during the examination.
(4) LuArtX IT fulfils its responsibility for handing over the products by providing for download by the customer from the download area of the LuArtX IT website, where updates and other software can be loaded and an online help function can be accessed.
§ 3 Prices
If not otherwise agreed in writing, the prices that can be seen in the LuArtX IT provisions at the time of the order plus the statutory value added tax shall apply. Travel costs are to be additionally remunerated, travel time applies as the time to be remunerated.
§ 4 Payment conditions
(1) Payments are to be made at the dates agreed in the contract ,quote or invoice; alternatively payment, without deduction, is due 14 days after provision of the products and receipt of invoice by the customer. When accounting according to units, monthly interim invoices are assumed as agreed. The value date on the account of LuArtX IT is relevant for the punctuality of the payment.
(2) When the payment by the customer is in default, LuArtX IT is entitled to charge consumers a default interest of 5 % points, and charge business customers 9 % points above the relevant base interest rate plus a lump-sum processing fee of 50 EUR.
(3) A right of retention on the part of the customer against the claim for payment that is not based on the relevant contract, exists only when there is a claim that is undisputed or enforced by law. LuArtX IT can refuse delivery as long as the customer is in default with payment for earlier deliveries by or services from LuArtX IT.
(4) The customer is only then entitled to offset demands when his counterclaim is undisputed or has been ascertained as legally valid.
(5) The products delivered by LuArtX IT remain their property (retention of title) until fully paid; the customer therefore only receives a provisional and revocable usage right till the full sum is paid.
§ 5 Warranty
(1) The existence of defects is governed only according to module description already provided by LuArtX IT. In the case of special requirements, wishes and preferences, it then concerns only an agreement on a quality or a use provided according to the contract if this is expressly agreed in writing.
Smaller software errors do not represent a defect if the practical usability is not impaired and no deviation from an agreed quality exists.
(2) In the case of a justified complaint, the customer has the legal warranty rights with the following modifications:
- a) In the case of a justified complaint about a defect, LuArtX IT can either choose to remedy the defect by replacement delivery of a fault-free product or by indicating a way of avoiding the effects of the defect.
b) The customer cannot, unless there are special conditions, demand the provision of a special defect-free version of the products, but must wait till the next regular update is issued. Special conditions exist, especially when essential functions of the product are restricted.
c) LuArtX IT is also entitled to effect a temporary removal of defects in the products by workaround solutions till this is finally remedied in the next regular update. When providing a suitable workaround, the remedy for the defect may not occur in the subsequent update.
d) Following the indication of the defect, LuArtX IT has basically a right to at least three further attempts to remedy within a period of at least three months for the same defect. This does not apply if anything else results from the type of product, defect or other conditions.
The customer shall allow LuArtX IT at least 14 days per supplementary attempt, as long as this does not result from the type of the product or defect or other circumstances.
e) A withdrawal by the customer from the contract due to a breach of duty on the part of LuArtX IT is excluded unless LuArtX IT is at fault in the breach of duty.
(3) The warranty rights of the customer are null and void if the customer is largely responsible for causing the defect. A significant causation of the defect by the customer is especially due to:
– Improper use
– Installation in an unsuitable installation environment
– Improperly operated or unauthorised work units or addresses within a local network or
– Use in connection with products not supplied by LuArtX IT
– Exposure to inadmissible external influences,
– Improper installation or
– Unauthorised changes to products
– whose original identification features or
– Subsequent changes to the hardware or
– operating system programs have been made
The customer bears the burden of proof that irregularities occurring are due to faults in the products and already existed before the handover. The warranty claim is excluded if he does not succeed in this..
(4) A recession on the part of the customer leads to a reversed transaction of the contract. The legal consequences are governed basically by Section 346 of the BGB.
(5) If the contract is unwound, the customer shall return or destroy all copies of the product and documentation that were issued and confirm in writing to LuArtX IT that all copies of the product and documentation issued have been returned or destroyed.
§ 6 Use of the products, granting of rights
(1) In the cases of § 2 (1), the customer receives a non-exclusive, time-unlimited usage right for the products to an extent described in more detail in the offer. LuArtX IT is and remains owner of the usage and exploitation rights of all copyright protected works arising at LuArtX IT within the framework of the contract. LuArtX IT transfers usage rights to the customer only if this is necessary for the intended utilisation of the products.
(2) Insofar as the products are used to a greater extent than that allowed in the contract, especially when the number of single workstation computers exceeds the number agreed in the offer, the customer is obliged to subsequently license at the price per licence agreed at the time of the contract signing.
(3) The customer is entitled to create a backup copy. The customer is obliged to reproduce the product designations or copyright remarks of LuArtX IT and attach these to the backup copy affected.
(4) The customer is not entitled, without previous written consent from LuArtX IT, to lease or sub-license the products in any way. Furthermore, the customer is neither allowed to communicate the products to the public or make them available to the public, nor make them available to third parties in a computer centre, nor allow them to be used by third parties in a computer centre.
LuArtX IT is not obliged to give this consent.
(5) The customer is entitled to pass over the acquired copy of the products permanently to a third-party. In this case, the customer shall completely rescind the use of the program, remove all copies of the program from his computers and all other copies stored on other data media or hand over to LuArtX IT. The customer shall confirm in writing the performance of above-mentioned measures at the request of LuArtX IT.
Furthermore, the customer shall expressly agree with the third party the observance of the agreements in force between LuArtX IT and the customer, especially the use governed in § 6 here.
(6) LuArtX IT can revoke the usage right to the products if the customer seriously violates the restrictions named in § 6 (2) and § 6 (4). In less serious cases, LuArtX IT shall first set a grace period for remedial action. If a further violation occurs, LuArtX IT can revoke the usage right without setting a grace period. The customer is obliged, in these cases mentioned above, to delete or hand over copies of the same when requested to do so; sentences 2 and 3 of § 6 (5) apply accordingly in this respect.
(7) Further claims for damages by LuArtX IT remain unaffected. However, the remuneration paid minus a usage compensation will be offset against this claim for damages on the basis of 1/36 of the transfer remuneration per commenced month since the handing over of the products.
(8) The customer may use the products permanently and without restriction once the full purchase price has been paid; if payment is not made on time, LuArtX IT can demand the return of the products and revoke the customer’s usage rights (see § 4.5.). LuArtX IT is entitled to build time-locks into the products for this purpose that make them unusable after a certain time if payment has not been made and the products have been activated.
§ 7 Claims by third parties
(1) The customer is obliged to inform LuArtX IT immediately of any judicial measures directed at him because of alleged violation of intellectual property rights of third parties by the products or their use. If such information is communicated immediately to LuArtX IT, LuArtX IT shall assume the legal defence at its own cost and will exempt the customer from claims for damages and costs arising from this measure. The control over the defence and all negotiations with reference to a settlement or conclusion of the legal dispute is solely the responsibility of LuArtX IT.
(2) In the case of an issuance of an interlocutory injunction against the customer, LuArtX IT shall, at its own cost, have the choice of either acquiring the right for a further use of the products by the customer or exchanging the products or alter them in such a way that they no longer fulfil the facts of the case of injury. Should this not be possible with an appropriate expenditure according to the sole discretion of LuArtX IT, LuArtX IT shall pay the customer an appropriate reimbursement on return of the products.
§ 8 Product alterations
LuArtX IT reserves the right, without previously informing the customer or obtaining his agreement, to make product changes for safety reasons or it is necessary so that the products meet the product specifications and the products do not get worse because of this.
§ 9 Export
Should a delivery to the customer not be possible because of a statutory or governmental prohibition, especially an export ban, LuArtX IT is freed from its obligation of provision.
§ 10 Liability restrictions
(1) The statutory regulations shall apply without restriction in the cases of loss of life, physical injury and damage to health and to claims from the product liability law.
(2) LuArtX IT shall pay damages or replacement of alleged applications, regardless of legal reason, (e.g. from contractual commitment or quasi-contractual obligations, defects in goods or title, breach of duty and tort), only to the following extent:
- a) LuArtX IT shall be liable without limitation for intent and gross negligence or from an accepted warranty.
b) LuArtX IT shall be liable to the amount of the typical and foreseeable damage at the time of contract completion.
c) In the case of a simple negligent breach of an obligation, whose fulfilment constitutes a condition sine qua non and on the fulfilment of which the customer regularly relies and whose breach jeopardises the achievement of the purpose, LuArtX IT shall be liable for typical and foreseeable damage at the time of contract completion.
(3) The liability of LuArtX IT shall be reduced when the customer is partly liable for the damages. A partial liability on the part of the customer exists when the customer has not carried out a data backup or a defence against malware according to the current state-of-the-art technology. If the co-liability of the customer outweighs that of LuArtX IT, the liability of LuArtX IT shall be excluded.
LuArtX IT shall not be liable for loss of data if the customer dos not adequately secure his data by a daily backup and protect it against attacks on the system.
(4) The aforementioned limitations to liability shall also apply to the personal liability of employees, representatives and bodies of LuArtX IT.
(5) The possibility of a third party insurance does not lead to an ongoing liability as aforementioned and governed by § 5.
(6) LuArtX IT is only obliged to check the , instructions and documentation of the customer for freedom of defects when there is a written agreement to this effect.
§ 11 Period of limitation
(1) Customer claims for warranty and/or damage compensation expire after a period of one year following delivery, installation insofar as LuArtX IT is at fault or, in the case of acceptance of products which must be accepted if no consumer participates in the business.
(2) The general period of limitation of Section 195 BGB is reduced to one year.
(3) The statutory period of limitation remains valid in relation to consumers.
§ 12 Confidentiality and data protection
(1) The parties are obliged to protect confidential or protected information against access by third parties, unless there is written consent from the respective opposite side, and shall treat these confidentially. The information may be made public if a party is legally obliged by a court or authority to do this. In this case, the other party shall be immediately informed of the impending disclosure and its extent.
(2) The details for the protection of personal and company-related data shall be regulated in the data protection declaration of LuArtX IT. This can be called up at www.luartxit.de.
§ 13 Final provisions
(1) LuArtX IT shall not expressly accept the general business terms and conditions of the customer unless the validity of the terms and conditions of the customer are part of an agreement.
(2) Alterations and additional agreements shall be made in writing; this applies also to the agreement on freedom of form.
(3) LuArtX IT GmbH is entitled to visit the customer’s business premises , accompanied by an expert who has been agreed with the customer, and inspect systems and programs so as to assess whether the customer complies with the provisions of this contract. Customer shall bear the costs if any violations are ascertained.
(4) Should a determination of these conditions be invalid, ineffective or cannot be implemented (or become so in the future), the effectiveness of the other provisions shall remain unaffected.
(5) Place of fulfilment is Böblingen.
(6) The place of jurisdiction shall be Stuttgart as long as the customer is a merchant, a legal person under public law or a legal person under special fund and a special place of jurisdiction is not designated. Each party reserves the right to sue at the general place of jurisdiction of the other party.
(7) German law shall apply.
Status: Böblingen, February 2019