Conditions of Business
1 Validity of the Conditions/Concluding a Contract
The subject matter of these conditions is the provision of data processing systems,
data processing programs (licensed programs or individual programs) and the provision of services by GIS Consult GmbH (GIS Consult). The provision of maintenance services is regulated in separate conditions.
GIS Consult’s General Licensing Terms & Conditions in addition to these conditions are definitive for the user rights of customers for licensed programs.
1.2 These conditions and the General Licensing Terms apply to the exclusion of
of conflicting customer conditions for current and future business relationships between GIS Consult and the customer, unless GIS Consult should have expressly agreed to them in writing. In particular they also apply to consequential business conducted in electronic business transactions.
1.3 In electronic business transactions, the product information provided by GIS Consult online only applies as an invitation to the customer to request offerings.
On the customer’s request, GIS Consult will offer him/her licensed programs for downloading
with notification of the respective contractual conditions. With explicit acceptance
of the offer or on the customer downloading the licensed programs, a contract comes
about under the conditions offered by GIS Consult.
2 Terms of Payment
2.1 All prices given in GIS Consult price lists and in other agreements are understood to be plus VAT.
2.2 Unless otherwise agreed, the prices are "ex works", excluding packaging.
2.3 The fee agreed for hardware and licensed programs shall be invoiced upon delivery or
following download and is due for payment by the customer before starting use, at the latest however 30 days after delivery. Where installation by GIS Consult has been agreed, payment is due upon proof of operational readiness by GIS Consult by means of a functional test, but no later than 30 days after delivery to the customer, unless the customer requests earlier installation.
2.4 Hardware or licensed programs supplied are due for payment even if additional
programming services ordered have not yet been fully rendered.
2.5 Payment for programming services is based on the respective agreement made
or, if no agreement has been made, according to the GIS Consult’s currently valid price list. GIS Consult may also require advance payments for more extensive projects.
2.6 Programming services and other services are invoiced monthly by GIS Consult, provided nothing to the contrary has been agreed, and are due for payment 14 days after receiving the invoice.
2.7 In case of delayed payments from the customer, GIS Consult is entitled to charge default interest amounting to 8 % p.a. above the basic rate of interest in each case.
2.8 The customer can only offset undisputed or legally valid counterclaims against GIS Consult.
3 Claims for defects
3.1 GIS Consult guarantees that hardware and programs have the characteristics
and functions listed in user documentation or the description of services.
3.2 GIS Consult must resolve faults following receipt of an error message either by supplying
a replacement, eliminating the fault or providing a workaround solution with equivalent functionalities at its discretion. If the subsequent performance according to sentence 1
is not successful within a reasonable period of time set by the customer,
the customer may demand a statutory claim for defects (e.g. withdrawal, reduction) with regard to the part of the contract which the faulty part or program
or a program module concerns. If the defective part or program or program module cannot
be objectively separated from the other parts or programs or program parts without prejudice for the customer, the customer may also assert his claims for defects with regard to the entire contract.
3.3 Customer error messages must be made immediately and in writing and must describe
the fault under which they arise in an understandable form. On request by GIS Consult, the customer must support GIS Consult in an appropriate manner in the sense of fulfilling secondary contractual obligations to resolve faults, in particular by providing the necessary information and, should the situation arise by providing machine time.
3.4 The customer has no claims against GIS Consult for insignificant faults or defects caused thorough use not in accordance with the contract. What is more, the customer shall not be entitled to claim for defects in program parts, into which the customer has intervened by changing the code.
3.5 The customer’s claims under warranty lapse and become time-barred one year after delivery; in the case of installation of licensed programs by GIS Consult after acceptance. If the customer is a consumer in the sense of the German Civil Code, warranty claims lapse and become time-barred after 2 years.
3.6 If GIS Consult fails to remedy the fault within a period of time set by the customer,
GIS Consult is entitled to request the customer decide within a reasonable period of time,
whether he wishes performance to continue. GIS Consult's obligation to perform shall be suspended until GIS Consult is informed of this decision.
4 Rights to outcomes of work
4.1 The exclusive and transferable user right of individually commissioned programming services lies with GIS Consult, unless a different regulation has been expressly agreed in writing.
5 Limit of liability
5.1 GIS Consult is liable without limit a) for of intent, b) for damages and expenses
arising from damages to life, limb or health caused by a breach of duty on the part of its representative or vicarious agents which was at least negligent or c)
in cases of gross negligence.
5.2 GIS Consult is liable for typical contractual, foreseeable damages and expenses
a) in cases of at least negligently violating cardinal obligations or b) if GIS Consult
must take out statutory professional indemnity/professional liability insurance or must do so under codes of conduct, or this is customary.
5.3 GIS Consult is liable for slightly negligent causes of damage - on whatever
legal grounds - up to a sum of 100,000.00 euros per claim.
5.4 GIS Consult is not liable for indirect damages caused by slight negligence (consequential damages), especially not for damages from interrupted operations or for lost profits, even if GIS Consult has been informed about the possibility of such damages occurring.
5.5 In as far as GIS Consult is not liable according to Section 1 to 4,
liability for claims for damages or reimbursement of expenses is excluded. This does not affect liability under the Product Liability Act.
5.6 The exclusions and limitations of liability named in Section 1 to 5 also apply to claims arising from tortious acts and shall also apply by analogy to the personal liability of employees, agents and legal representatives of the respective party.
5.7 The exclusions and limitations of liability named in sections 1 to 6 also apply to claims against GIS Consult’s suppliers.
6 Secrecy and Confidentiality
6.1 The customer and GIS Consult must treat all documents, information and data with
reference to the other contractual partner or to third parties, which they obtain in connection with or on the occasion of performing concrete services for the subject of the contract, confidentially, at least observing the care of a prudent businessman, as far as this is not a matter of public knowledge.
6.2 The customer is obliged to treat licensed programs as trade secrets and to protect them against use during a breach of contract. He may only allow licensed programs to be used by employees and third parties for customer purposes in accordance with the contract, and must commit them in writing to always protect the licensed programs against unauthorized access.
7.1 Changes and amendments to agreements between the customer and GIS Consult
including GIS Consult’s business and licensing conditions require the written form,
which can only be waived in writing. In as far as such changes and additions are connected with a contract concluded electronically or which must be concluded electronically, in which the programs/licenses are provided to the customer for downloading, the electronic form suffices. The „electronic form" in the sense of these conditions means messages transmitted via electronic networks such as e-mails or clicks on website icons and does not pre-suppose the use of electronic signatures.
7.2 Legal relationships between GIS Consult and the customer arising from or in connection
with the business relationship are subject to the laws of the Federal Republic of Germany
under the exclusion of the UN Convention on Contracts for the International Sale of Goods.
7.3 The place of performance and the place of jurisdiction is Marl.
7.4 Should one or more provisions of these conditions or the General Licensing Conditions
be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In the event of invalidity or unenforceability which is not due to the general Terms & Conditions of Business, the provision which comes closest to the economic intention of the parties shall take the place of the unenforceable or ineffective provision with retroactive effect.
General Licensing conditions
1 Subject of the conditions
1.1 These GIS Consult GmbH (GIS Consult) conditions regulate the transfer and
use of data processing programs (licensed programs) named in software / on delivery notes including associated documentation and media (together hereinafter also referred to as "licensed material").
1.2 These conditions are valid under the exclusion of contradictory conditions from the customer for present and future business relationships between GIS Consult and the customer, unless GIS Consult has expressly agreed to them in writing. They also apply in particular to consequential business conducted in electronic business transactions.
1.3 In electronic business transactions, product information provided by GIS Consult online is only an invitation to the customer to request offers.
On request by the customer, GIS Consult will offer him/her licensed programs for
downloading whilst notifying the respective contractual conditions. With explicit acceptance of the proposal or on the customer downloading the licensed programs,
a contract comes about under the conditions offered by GIS Consult.
2 Licensed Programs
2.1 The licensed programs transferred, the period of use and the fee the customer must pay
result from the respective software documentation/delivery note.
3 User Rights
3.1 GIS Consult extends the licensee non-exclusive rights to use licensed material for which the licensee has paid the agreed fee in accordance with the following provisions, limited to the period indicated in respective software/ on the delivery note, for the purposes agreed in the area indicated in software/ on the delivery note and in accordance with §§ 69 a to 69 g UrhG [German Copyright Act] to the extent of the following provisions. The licensee is only entitled to use the quantity of licensed programs agreed in software/ on the delivery note.
3.2 The user rights include such programs in machine-readable or printed form, which have been developed by the licensee for his own purposes in a permitted fashion by modifying and/or supplementing licensed programs (modified programs).
3.3 Unless otherwise agreed in software/ on the delivery note, the user rights granted to the user only refers to the user’s business activity at the time of concluding the contract, including all further developments.
3.4 Subsequent changes or adjustments to the user rights extended to the licensee are possible by separate agreement between the parties. In this case GIS Consult is entitled to charge the customer a processing fee for converting the license, the size of which results from the current price lists for licensed programs.
3.5 The licensee may make at least one backup copy or the number of backup copies agreed in the software/ on the delivery note. Copyright notices and trademarks belonging to GIS Consult or the original licensor must be accepted unaltered in the backup copies.
3.6 User rights extended for a limited period of time are not transferable. Transferring
other licensed programs to third parties is only permitted for the licensee on the condition
the licensee does not retain any copies of the program - regardless of the storage medium -,
and that GIS Consult are informed of the name and address of the third party
prior to transferring the licensed programs. This also applies to transfers to companies
belonging to the same group of companies as the licensee.
3.7 The licensee may use programs that he has developed using licensed programs that do not contain any significant components of licensed programs and that can only run in conjunction with licensed programs (derived programs) without restrictions and may transfer these to third parties.
4 Description of the Technical Environment
4.1 The servers on which licensed programs should be installed are specified in a description of the technical environment with their location and respective operating system, network, internet addresses, media formats for installation and the system environment. A description of the technical environment must be completed for each server and for each workstation independent of networks.
5 License keys, dongles
5.1 GIS Consult will provide the licensee with a license key (numerical code), in so far as he needs it to activate licensed programs. GIS Consult will provide the licensee with a new license key in good time before the period of use activated by the license key expires, provided that the licensed material continues to be used in accordance with the contract.
5.2 In so far as the licensed programs will only be used on a personal computer (PC) in accordance with the contract, GIS Consult will lend the licensee a dongle (a plug with an identification code) for the duration of use in accordance with the contract for using the licensed programs, which must be attached to the respective PC by the licensee in accordance with the instructions for use.
6.1 The licensee commits to keep the licensed material strictly confidential and to protect it
against unauthorized access by third parties, including employees not responsible
for the use of the licensed material. Copies of the licensed material must be kept under lock and key as trade secrets.
7 Limits to user authorisations, contractual penalty
7.1 The licensee commits to use the licensed material including modified
programs only in the context of the rights extended to him (Number 2), in particular
not to make any unauthorised copies, and to strictly monitor the number of simultaneous users and also not to permit persons not authorised under these conditions any acces