Terms and conditions
Vertragsbedingungen für die Überlassung und Pflege von Anwendungsprogrammen sowie die Überlassung kundenspezifischer Hardware der Schleißheimer GmbH, Nieder-Wöllstadt.
I. Provision of application programs (standard)
§ 1 Delivery of standard programs
The properties of the software products (hereinafter referred to as "Programs") are set out in the respective product description, supplemented by the user documentation. The user documentation may describe properties which the customer has not acquired. Legal regulations or similar mandatory requirements for the programs shall be complied with.
Schleißheimer supplies the customer with the programs in executable form (as object programs) on data carriers or makes them available for download from the Internet. Unless otherwise agreed, Schleißheimer may also send the programs by e-mail. Schleißheimer shall make the user documentation available in electronic or printed form.
Insofar as interfaces to other programs exist in the programs of Schleißheimer, Schleißheimer shall provide the customer with the necessary information about the interfaces upon request against payment of the expenses incurred by Schleißheimer. If required, the customer may disclose this information to other contractors.
Insofar as Schleißheimer has identified programs as products of sub-suppliers in the contract, Schleißheimer shall only be liable for their properties insofar as these are essential for the use of Schleißheimer's application programs. In all other respects Schleißheimer shall neither expressly nor tacitly vouch for the information in the product descriptions of the respective manufacturers.
Schleißheimer does not assume any obligation to remedy defects and provide care for these programs. Schleißheimer will, however, endeavour to remedy serious defects at the manufacturer's, provided the latter is prepared to do so in accordance with its business policy.
The customer shall only be entitled to use these programs together with Schleißheimer's programs.
§ 2 Rights of use of the customer
Schleißheimer grants the customer the right to use the acquired programs to the extent stipulated in the contract, namely for its own purposes and for the purposes of the companies belonging to the customer's group of companies (in accordance with §§ 15 et seq. of the German Stock Corporation Act).
The amount of the transfer fee shall depend on the agreed scope of use. If the customer wishes to change the agreed scope of use, this must be agreed in advance with Schleißheimer and remunerated accordingly.
The customer may only use programs on configurations for which Schleißheimer has released them. The customer shall inform Schleißheimer immediately about the change of a configuration.
The customer may resell the acquired right of use per program to another user if he waives the use of the program and the other party undertakes in writing to Schleißheimer to protect the program and to use the program only to the extent agreed between Schleißheimer and the customer of Schleißheimer.
If Schleißheimer has granted the customer an unlimited right of use, this right of use shall not be transferable.
The customer may change or extend the programs and the associated documents only to the extent that this is possible within the scope of the supplied administrator functions and administrator rights.
§ 3 Implementation
It is the customer's responsibility to install the programs on his IT system. At the customer's request Schleißheimer shall install the programs against remuneration of the expenses incurred by Schleißheimer and carry out a brief introduction. In this case, the customer shall confirm the successful installation in writing.
If it has been agreed that Schleißheimer shall install the programs, the customer shall ensure that Schleißheimer's competent operating personnel is available to the customer at the latest at the time of installation.
Schleißheimer recommends that the customer's employees who are to work with the programs are trained in a Schleißheimer training course.
It is the responsibility of the customer to put the programs into operation. This also includes that the customer checks these under his operating conditions before using them productively. Schleißheimer is prepared to support the customer in this process on request against payment of the expenses incurred by Schleißheimer.
The customer shall immediately examine all services provided by Schleißheimer for freedom from defects, insofar as this is appropriate in the ordinary course of business. This shall also apply to those parts of the programs which the customer uses only occasionally.
Schleißheimer shall designate a customer advisor, the customer a contact person. They may make decisions or bring about decisions without delay. The client advisor shall record decisions in writing. The contact person is available to Schleißheimer for all necessary information. Schleißheimer shall be obliged to involve this contact person insofar as the execution of the contract requires this.
Upon termination of the use of the programs by the customer, for whatever reason, the customer shall be obliged to return the programs including the associated documentation to Schleißheimer and to assure Schleißheimer in writing that the customer has deleted all copies of the programs on its IT systems. The customer has no claim to reimbursement of costs for support services already provided by Schleißheimer.
§ 4 Obligations of the customer to program protection
The customer acknowledges that the programs including user documentation and other documents, also in future versions, are protected by copyright and represent trade secrets of Schleißheimer or the respective manufacturer. The customer shall ensure that the programs are protected against misuse for an unlimited period of time.
If Schleißheimer makes source programs available to the customer, the customer may only make these available to third parties with the prior written consent of Schleißheimer. Schleißheimer may not refuse such consent contrary to good faith. Schleißheimer does not need to give its consent for a third party to take over the maintenance of the programs.
The customer may make copies only for backup purposes, as a replacement or - in the case of the delivery of source programs - for troubleshooting.
The customer is prohibited from creating programs derived from the programs.
The customer may only use the user documentation for internal purposes and may only reproduce it within the scope of his own permissible use. The customer may not translate, modify or extend the user documentation or create derivative works based thereon.
§ 5 Special Conditions for the Rental or Hire Purchase of Programs
If rent or hire purchase is agreed in the contract, the remuneration shall be paid monthly in advance. Schleißheimer shall be entitled and obliged to adjust the monthly remuneration to the extent that Schleißheimer changes the list price for the nursing care in return for a one-off payment. Increases shall be announced three (3) months in advance. The customer may terminate the contract at any time until an increase takes effect.
In all other respects the conditions of §§ 1-4 shall apply. The conditions contained in § 2.4 regarding the resale by the customer and the designation of the customer as the owner (§ 1.3) shall not apply.
The limitation of the limitation period for claims due to defects in accordance with § 17.2 shall not apply. The right to rescind the contract pursuant to § 18.1 shall be replaced by the right to terminate the contract without notice. The contract value pursuant to § 15.2 and § 18.3 shall be the annual rent at the time of the breach of contract.
In the case of rent or hire purchase, the care services are covered by the rent, details are regulated in the contract. In addition, the conditions of §§ 9 to 12 shall apply to care in the case of hire or hire purchase.
II. Customer-specific programming
§ 6 Subject
Schleißheimer grants the customer the same right of use for modifications and extensions as for the standard programs to which they belong.
Modifications shall only be supplied in executable form. Insofar as this is expressly agreed in the contract, extensions and other additional programs shall also be supplied in source code, but without technical system documentation, unless this has been expressly commissioned.
User documentation shall only be supplied if this has been expressly agreed. In the latter case, the following shall apply: If modifications/extensions have an effect on the user documentation of the standard programs, these shall not be integrated in them but shall be presented separately.
§ 7 Implementation
Insofar as it is necessary to detail the customer's requirements stipulated in the contract or required in accordance with § 8.1, Schleißheimer shall do so with the support of the customer, draw up a detailed concept and submit it to the customer for approval. The customer shall submit his comments in writing within 14 days. Unless otherwise agreed, this service shall be remunerated on a time and material basis.
The approved detailed concept is a binding specification for the programming owed. If necessary Schleißheimer will refine it in the course of the programming in coordination with the customer.
Otherwise, § 3 shall apply accordingly.
§ 8 Changes to the requirements
If the customer wishes to change his requirements (which includes extensions), Schleißheimer is obliged to agree to this insofar as this is reasonable for Schleißheimer. Insofar as a request for change has an effect on the contract, Schleißheimer may demand an appropriate adjustment of the contract, in particular an increase in the remuneration and/or a postponement of the deadlines.
Agreements on changes to the requirements must be made in writing. If the customer orally declares a change request, Schleißheimer may demand that the customer formulate this in writing or confirm it in writing. In the second case, Schleißheimer's formulation shall be binding if the customer does not object to it immediately.
Schleißheimer shall immediately assert claims according to § 8.1. The customer shall immediately object if he does not agree with such claims of Schleißheimer.
III. Program maintenance
§ 9 Subject
If care is agreed in the contract, Schleißheimer shall provide the transmission of further developed versions of the standard programs, the elimination of program errors and telephone support during Schleißheimer's normal business hours against a lump-sum payment as care services.
Maintenance is provided from the installation of the programs.
The amount of the maintenance lump sum shall be agreed in the contract. All other services shall be remunerated separately, in particular the installation of further developed versions by Schleißheimer, the transfer of customer-specific modifications into further developed standard versions by Schleißheimer, as well as the adaptation of customer-specific programming to further developed standard versions by Schleißheimer.
The care agreement runs for an indefinite period of time. It may be terminated by either contractual partner with three (3) months' notice to the end of a care year.
Schleißheimer shall terminate nursing care before the end of the third nursing year only for good cause. Schleißheimer shall be entitled to terminate the contract prior to this date for objective reasons, in particular if the maintenance of system software or other software required for Schleißheimer's programs is restricted by its suppliers.
§ 10 Troubleshooting
Program errors are defined as deviations from the properties which Schleißheimer specifies for the programs to have for the current version or for their normal use.
The obligation to eliminate errors and to provide telephone support refers to the latest released standard version of the programs. It ends for the previous version six (6) months after release of the newest version. However, the obligation to eliminate errors shall continue as long as it is unreasonable for the customer to accept the latest released version, but only to the extent that Schleißheimer is in a position to provide these services. In this case Schleißheimer shall be entitled to remuneration of the additional expenditure incurred by Schleißheimer and the additional costs including those incurred for the provision of the maintenance environment required for the maintenance of the old version.
§ 17 shall apply mutatis mutandis to the performance of troubleshooting.
§ 11 Further development of the standard programs to be maintained
Schleißheimer shall make available to the customer further developed standard versions including the documentation belonging to these according to § 1.2 after their release by Schleißheimer. This shall not apply to extensions which Schleißheimer offers separately as new programs in Schleißheimer's price list.
The customer shall test further developed versions before using them productively.
11.2 If a manufacturer who releases a further developed version of the system software required for the use of the programs releases system software necessary for the use of the programs, and if this manufacturer has concluded a maintenance agreement with Schleißheimer for the maintenance of this system software, Schleißheimer shall, after the availability of the further developed version for Schleißheimer, check whether this version cooperates properly with the standard programs for which the customer has concluded a maintenance agreement with Schleißheimer. If this is the case, Schleißheimer will release Schleißheimer's programs for use with the further developed version of the system software (cf. § 2.3). Otherwise Schleißheimer shall adapt the standard programs to be maintained for the customer to the further developed version of the system software within a reasonable period of time. The reasonable period begins with the availability of the further developed version of the system software for Schleißheimer.
For system software for which the manufacturer does not offer new versions under maintenance contracts with customers but from time to time offers new generations for sale, the following shall apply: If the manufacturer provides improvements (e.g. service packs) Schleißheimer shall proceed in accordance with § 11.2.
If the manufacturer offers a new generation of the system software, Schleißheimer will examine whether Schleißheimer adapts its own programs to this new generation, taking due account of the interests of all users. If Schleißheimer adapts its own programs to the new generation, Schleißheimer only has to further develop the programs on this basis.
The customer shall ensure that its IT system, in particular its system software, has the state of the art required by the programs to be maintained within the f