General terms and conditions of S.HE Business GmbH
§ 1 Scope
(1) The following general terms and conditions (hereinafter referred to as "GTC") apply to all legal transactions of S.HE Business GmbH, Stadtwall 5, 48683 Ahaus, (hereinafter referred to as "S.HE Business") and its contractual partner (hereinafter referred to as "customer"). The terms and conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) These GTC apply exclusively. S.HE Business does not recognize conflicting or deviating terms and conditions of the customer unless S.HE Business has expressly agreed to their validity in writing. These General Terms and Conditions also apply if S.HE Business executes the contract with the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
(3) These GTC also apply to all future transactions with the customer. They apply even if they are not expressly included again later.
(4) Legally relevant declarations and notifications by the customer in relation to the contract (e.g., setting a deadline, notification of defects, withdrawal, or reduction) must be submitted in writing. Written form within the meaning of these GTC includes written and text form (e.g., letter, e-mail, fax). Statutory formal requirements and other evidence, especially in the case of doubts about the legitimacy of the declarant, remain unaffected.
(5) References to the validity of legal regulations only have clarifying meaning. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these General Terms and Conditions.
§ 2 Conclusion and execution of the contract
(1) The contract between S.HE Business and the customer comes about through the written order placed by the customer within the offer-binding period in response to the offer made by S.HE Business.
(2) Meeting minutes sent by S.HE Business are binding if the customer does not object immediately upon receipt.
(3) All working documents, electronic data and records that S.HE Business produces or has produced as part of the order processing, as well as all rights to these working documents, remain with S.HE Business. There is no right to return and/or storage. In particular, the customer does not receive any right of use to the images, drawings and/or graphics as well as presentations, raw and working files and prototypes contained in these working documents. If the customer wishes the transfer of corresponding rights of use and/or the release and/or storage of corresponding work documents, electronic data and/or records, this must be agreed and paid for separately.
§ 3 Delivery period and delay in delivery
(1) The dates and deadlines specified by S.HE Business are non-binding unless otherwise expressly agreed in writing. (
2) S.HE Business is entitled to partial services (in particular individual modules) if this is reasonable for the customer.
(3) If S.HE Business is unable to meet binding delivery times for reasons for which S.HE Business is not responsible, S.HE Business will inform the customer of this immediately and at the same time communicate the expected new delivery time. If the service is also not available within the new delivery period, S.HE Business is entitled to withdraw from the contract in whole or in part; any consideration already provided by the customer will be reimbursed immediately.
(4) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the customer is required.
§ 4 Performance, acceptance
(1) Insofar as an acceptance has to take place, the service is deemed to have been accepted,
if S.HE Business has set the customer a reasonable deadline for acceptance after completion of the services and the customer has not refused acceptance within this period, stating at least one defect or
through other behavior of the customer, from which the acknowledgement of the service as essentially contractual (e.g.,software go-live) can be inferred.
(2) The customer may not refuse acceptance because of insignificant defects. If the customer refuses acceptance due to not insignificant defects, he must notify S.HE Business of this in writing, stating the defects. The customer will set S.HE Business a reasonable period of time to remedy these defects.
§ 5 Remuneration, retention of title
(1) The remuneration is determined individually between the parties and depends on the type of order (consulting services and/or software development work).
(2) Payments are due when the invoice is issued and are to be made without any deduction (discount).
(3) All services charged by S.HE Business do not include the statutory value added tax at the applicable rate.
(4) If the customer changes and/or supplements orders, work, extensive planning and the like during the execution of the contract, he will reimburse S.HE Business for all additional costs incurred and release S.HE Business from all liabilities to third parties and, if necessary. compensate for any additional work required.
(5) Ownership of the work products created by S.HE Business is only transferred to the customer once the agreed remuneration has been paid in full.
§ 6 Customer’s duty to cooperate
(1) The customer must provide S.HE Business with all information relevant to the performance of the service. S.HE Business is generally not obliged to check the data, information or other services provided by the customer for their completeness and correctness, insofar as there is no reason to do so, taking into account the respective circumstances of the individual case, unless this is expressly stated in the order includes.
(2) Insofar as the customer's cooperation is required for the performance of the service by S.HE Business, he must provide this in good time and at his own expense. If the customer does not fulfill his obligations to cooperate, does not do so in a timely manner or does not do so properly and the acceptance is therefore in default, any agreed delivery dates will be postponed and S.HE Business is entitled to demand appropriate compensation. In addition, S.HE Business is entitled to terminate the contract if the customer has not complied with his obligations to cooperate after setting a reasonable deadline and threatening to terminate the contract; in this case, S.HE Business is entitled to the contractually agreed fee, but S.HE Business must offset what it saves on expenses as a result of the cancellation of the contract or acquires or maliciously fails to acquire through other uses of its labor force. Unless the customer proves a higher proportion of saved expenses in individual cases, this is agreed at 40% of the fee for the services not yet provided by S.HE Business. If the customer wants to make a deduction due to acquisition through other use of the workforce of S.HE Business or malicious omission of other acquisition, he bears the burden of proof in this respect in terms of reason and amount.
§ 7 Termination
(1) The customer can terminate the contract at any time up to the completion of the order. In this case, S.HE Business is entitled to demand the agreed fee, whereby it must offset what it saves on expenses as a result of the cancellation of the contract or acquires or maliciously fails to acquire through other uses of its labor force. Unless the customer proves a higher proportion of saved expenses in individual cases, this is agreed at 40% of the fee for the services not yet provided by S.HE Business. If the customer wants to make a deduction due to acquisition through other use of the workforce of S.HE Business or malicious omission of other acquisition, he bears the burden of proof in this respect in terms of reason and amount.
(2) Both parties can terminate this contract for good cause.
(3) The termination – regardless of the reason – must be in writing.
§ 8 Rights of use
(1) The scope of the transferred rights of use is based on the contractual agreements or the purpose pursued with the contract in terms of space, time and content, Section 31 Paragraph 5 of the Copyright Act applies accordingly.
(2) The rights of use are only transferred to the customer once the agreed remuneration has been paid in full.
(3) Unless otherwise agreed, S.HE Business grants the customer a non-exclusive, simple right of use.
(4) In the case of software development, the customer does not have the right under any circumstances to rent or otherwise sublicense the purchased works protected by S.HE Business, to reproduce them publicly or make them accessible via wire or wireless, or to make them available to third parties for a fee or free of charge to provide.
(5) Unless otherwise agreed, in the case of software development, the customer has no right to transfer of the source code and the raw and working files.
§ 9 Support of software development orders
(1) In the case of development orders, the Service Level Agreements (“SLA”) to be agreed separately by S.HE Business apply. If no SLA has been agreed, the following applies:
(2) Service and support are provided on working days, Monday to Friday, from 9 a.m. to 5 p.m. by telephone or email. Exceptions to this are the public holidays in North Rhine-Westphalia and 24.12. and 31.12. of every year.
(3) Inquiries made outside of these support hours are deemed to have been received during the next working day, without prejudice to other contractual agreements.
§ 10 Warranty
The following applies to any material or legal defects:
(1) The statutory provisions shall apply to the rights of the customer in the event of defects in quality and title, unless otherwise specified below. In all cases, the special statutory provisions on reimbursement of expenses in the case of final delivery of the newly manufactured goods to a consumer (supplier recourse in accordance with Sections 478, 445a, 445b and Sections 445c, 327 Paragraph 5, 327u BGB) remain unaffected, unless, e.g. B. in the context of a quality assurance agreement, an equivalent compensation has been agreed.
(2) Claims by the customer for damages or reimbursement of wasted expenses also exist in the case of defects only in accordance with § 12 and are otherwise excluded
(3) Contrary to Section 438, Paragraph 1, No. 3 of the German Civil Code and Section 634a of the German Civil Code, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(4) If the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory regulation (§ 438 Para. 1 No. 2 BGB or § 634a Para. 1 No. 2 BGB). Other special statutory regulations on the statute of limitations remain unaffected (in particular § 438 Paragraph 1 No. 1, 76 Paragraph 3, §§ 444, 445b BGB).
(5) The above limitation periods of the purchase and work contract law also apply to contractual and non-contractual claims for damages of the customer based on a defect, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases.
(6) Claims for damages by the customer pursuant to Section 12 and the Product Liability Act lapse exclusively according to the statutory limitation periods.
§ 11 Confidentiality
(1) "Confidential information" is all information and documents of S.HE Business that are marked as confidential or are to be regarded as confidential from the circumstances, including software object codes, documentation and other documents, operational processes, business relationships and know-how.
(2) The customer undertakes to keep confidential information from S.HE Business strictly and unconditionally secret and to protect it through appropriate technical and organizational precautions.
(3) Excluded from the duty of confidentiality in paragraph 2 is such confidential information,
a) which were demonstrably already known to the customer at the time the contract was concluded or which subsequently became known from third parties without breaching a confidentiality agreement, statutory provisions or official orders;
b) which are publicly known when the contract is concluded or are made publicly known thereafter, insofar as this is not based on a violation of this contract;
c) which must be disclosed due to legal obligations or by order of a court or an authority. As far as permissible and possible, the customer who is obliged to disclose will inform S.HE Business in advance and give it the opportunity to take action against the disclosure.
(4) The Customer will only grant access to Confidential Information to such consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to such confidentiality obligations. Furthermore, the customer will only disclose the confidential information to those employees who need to know them for the execution of the contract, and will also oblige these employees to maintain secrecy to the extent permitted by labor law for the time after they have left the company.
(5) The confidentiality obligations under these provisions are not affected by termination of the contract and remain in effect for a period of 5 years from the termination of the contract
§ 12 Liability
(1) The risk of the legal admissibility of the activities of S.HE Business is borne by the customer. S.HE Business is not obliged to check ideas, suggestions, proposals, concepts or drafts to see whether they are legally permissible or violate the rights of third parties, in particular copyright, image and other rights of use, name and trademark rights, etc. This also applies to templates, photos, models or working documents provided by the customer. The customer releases S.HE Business from all claims of third parties. This also applies to the costs of legal defense.
(2) S.HE Business is liable for intent and gross negligence. S.HE Business is only liable for slight negligence in the event of a breach of an essential contractual obligation (cardinal obligation), the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer can regularly rely, as well as in the event of damage resulting from injury to life or limb or health.
3) The above regulations also apply to the vicarious agents of S.HE Business.
(4) Liability for data loss is limited to the typical recovery effort that would have occurred if backup copies had been made regularly and in accordance with the risk.
§ 13 Set-off, right of retention, assignment of claims
(1) Offsetting or the assertion of a right of retention is only permitted with recognized or legally established counterclaims. In the event of defects in the service, the customer's counterclaims remain unaffected.
(2) The customer is not entitled to assign his claims from the contract with S.HE Business.
§ 14 Other Provisions
(1) The law of the Federal Republic of Germany applies to all legal relationships between S.HE Business and the customer, excluding the laws on the international purchase of movable goods (UN Sales Convention).
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, Coesfeld is the exclusive place of jurisdiction for all disputes arising from this contract. The same applies if the customer does not have a general place of jurisdiction in Germany or if his domicile or habitual abode is not known at the time the action is filed. Nevertheless, S.HE Business is entitled to sue the customer at his general place of jurisdiction.
Status: May 2022