1 General – Scope of Application
1.1 These terms and conditions apply exclusively; INVITEC does not recognize customer terms and conditions that conflict with or deviate from these terms and conditions unless INVITEC has expressly agreed to their validity in writing. These terms and conditions also apply if INVITEC executes the customer’s order without reservation in the knowledge of terms and conditions of the customer that contradict or deviate from these terms and conditions, including any procurement guidelines of public-law corporations.
1.2 All agreements made between INVITEC and the customer for the purpose of executing the contract are to be recorded in writing in the contract. Changes and additions to the contract must be made in writing.
1.3 These terms and conditions also apply to all future similar transactions with the customer within the scope of his activities from current business relations.
1.4 These terms and conditions shall only apply to entrepreneurs within the meaning of § 14 para. 1 BGB (German Civil Code), legal entities under public law, and special funds under public law within the meaning of § 310 para. 1 BGB.
2 Offer – Offer Documents
2.1 INVITEC’s offers are subject to change unless otherwise stated in the order confirmation or INVITEC has expressly declared otherwise in writing. A contract is only concluded when INVITEC confirms an order in writing or executes the order.
2.2 INVITEC reserves the property rights and copyrights to illustrations, brochures, calculations, programs, calculations, and other documents; they may not be made accessible to third parties. This applies in particular to such written documents that are designated as “confidential”; the customer requires the express written consent of INVITEC before passing them on to third parties.
3 service content
3.1 These terms and conditions apply to (i) the delivery and installation of standard software (“software products”) and hardware (“hardware”) as well as combinations thereof (“systems”), the functional features and specifications of which are listed in the respective product description and in the INVITEC End User License Terms, and (ii) the provision of services in accordance with the respective service agreement.
3.2 Unless otherwise agreed, software products and systems include software contained on a storage medium, a software copy protection module (“license key”), and the written and electronic documentation including the data files recorded on the storage medium.
3.3 The customer is obligated to provide INVITEC, free of charge and without being asked, with all information relevant to the provision of INVITEC’s services.
3.4 Subsequent changes to the agreed scope of services are only possible on the basis of written agreements.
3.5 If INVITEC considers changes in the services to be necessary or reasonable after the services owed have been determined, INVITEC will inform the customer of this. The parties will then agree on these changes, including any additional remuneration. If such changes only have an insignificant effect on the customer’s business activities, INVITEC is entitled to implement the change without the customer’s consent, insofar as this does not involve an increase in the fee.
4 Customer’s rights of use; treatment of replacement equipment
4.1 The customer’s rights of use for software products, hardware, and systems are determined according to the INVITEC End User License Conditions.
4.2 If INVITEC has provided the customer with hardware on a rental or loan basis (“replacement device”), the replacement device remains the property of INVITEC. The customer is obligated to secure the replacement device against loss or damage. The customer must observe all obligations associated with the possession, use, and maintenance of the replacement device and follow the maintenance, care, and use instructions of INVITEC and the manufacturer of the replacement device. The customer is not entitled to sublet the replacement device. He must leave the replacement device in his immediate possession and use it only at the agreed locations. The lessee must allow INVITEC to inspect the replacement device at any time.
5.1 The delivery of the system or parts thereof takes place at the risk and expense of the customer.
5.2 Unless otherwise agreed or resulting from the contractual relationship, the delivery time or performance time specified by INVITEC for the provision of services (“delivery time”) is always non-binding. The beginning of a performance time stated by INVITEC or agreed upon with INVITEC presupposes the clarification of all necessary questions and the fulfillment of the customer’s obligations. Compliance with agreed delivery times presupposes, in particular, the timely provision of all necessary information by the customer and, if INVITEC is exceptionally responsible for the installation of the system or parts thereof, free access to the installation locations. The customer must also ensure that his specialist personnel support INVITEC during a service (e.g. installation) and provide the necessary operating resources (such as power, communication connections, etc.) free of charge.
5.3 Delays in delivery and performance due to force majeure or due to unforeseen circumstances for which INVITEC is not responsible, such as operational disruptions, strikes, lockouts, lack of means of transport, difficulties in procuring raw materials, official orders, untimely delivery by INVITEC’s supplier, do not lead to a delay. An agreed delivery time or a delivery time specified by INVITEC is extended by the duration of the impediment. If the reason for the hindrance lasts longer than 3 months, INVITEC and the customer are entitled, after the expiration of an appropriate grace period, to withdraw from the contract regarding the part that has not yet been fulfilled. In this case, claims for damages are excluded.
5.4 If the customer sets INVITEC a reasonable deadline after the latter has defaulted, he is entitled to withdraw from the contract after the fruitless expiration of this deadline; in this case, the customer is only entitled to claims for damages due to non-fulfillment if the default is based on intent or gross negligence or a negligent significant breach of duty. This limitation of liability does not apply, however, if a fixed commercial transaction was agreed upon or if the customer can claim that his interest in the fulfillment of the contract has ceased to exist due to the delay for which INVITEC is responsible. In these cases, liability is limited to the foreseeable damage typical for the contract, insofar as INVITEC has not acted intentionally.
5.5 If the customer is in default of acceptance or violates other obligations to cooperate, INVITEC is entitled to demand the damages incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the system or parts thereof also passes to the customer at the point in time at which he defaults on acceptance.
5.6 INVITEC is entitled to provide parts of the delivery or the service, provided that this does not conflict with any recognizable interest of the customer.
6 fees and terms of payment
6.1 License fees are based on the number and type of usage rights granted by INVITEC. Unless otherwise agreed, the service fees are calculated according to the time and material expended, based on the price list valid at INVITEC at the time. Insofar as INVITEC is not obligated to provide a replacement device free of charge, the rental fee for the replacement device leased to the customer by INVITEC is also based on the price list valid at INVITEC from time to time unless otherwise agreed.
6.2 All fees are exclusive of value-added tax, which will be charged separately to the customer.
6.3 Unless otherwise agreed, the fees are exclusive of reasonable travel and accommodation expenses and as tax-deductible expenses, which are to be paid separately by the customer.
6.4 Unless otherwise agreed in writing, all invoices are payable within 10 days of receipt of the invoice after the service owed has been rendered. If the customer defaults on payment, INVITEC is entitled to charge the statutory default interest.
6.5 In the case of subsequent service extensions, the prices of INVITEC’s then valid price list apply, unless expressly agreed otherwise.
6.6 The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by INVITEC. The customer is only entitled to exercise a right of retention or a right to refuse performance if the same conditions are fulfilled for his counterclaims and, in addition, the counterclaim is based on the same contractual relationship.
6.7 Bills of exchange and checks shall only be accepted – if at all – on account of performance. All costs associated with this shall be borne by the customer.
6.8 If INVITEC is obligated to advance performance and INVITEC becomes aware of circumstances after the conclusion of the contract, according to which INVITEC’s claim for payment is at risk, INVITEC can, at its discretion, demand either security within a reasonable period of time or concurrent payment against performance. If the customer does not comply with this demand, INVITEC is entitled to withdraw from the contract, subject to further legal rights.
7 Warranty for Defects/Claims for Defects
INVITEC is liable for material defects, which also include software errors, according to the legal regulations, unless otherwise stated in the following.
7.1 When the system or parts thereof are delivered, deviations from the functionality described in the service specification or otherwise contractually described are considered defects, insofar as these deviations not only insignificantly impair the suitability of the system or parts thereof for normal use. According to the current state of knowledge and technology, it is not possible to create software in such a way that it works completely error-free under all application conditions. Therefore, INVITEC does not have a warranty obligation if the defect is only insignificant, in particular, if it does not have a significant effect on usability.
7.2 INVITEC’s warranty obligations also require that the customer has fulfilled his maintenance obligations unless the defect is not due to an omission of this obligation.
7.3 The customer’s warranty rights (claims for defects) presuppose that he examines the system or parts thereof immediately after receipt, in particular by importing and installing software immediately after receipt, examining it for functionality, and after discovering defects, notifying INVITEC of these in writing, specifying the defects (§ 377 HGB). If INVITEC has exceptionally committed itself to installation, these obligations of the customer only begin with the completion of the installation or, if such is agreed, only with the acceptance.
7.4 If the customer changes the system, and its configuration, does not use it or the software in the intended manner or uses it in a hardware or software environment other than that intended, without INVITEC’s consent, the customer’s warranty rights expire unless he can prove that the defect that has occurred is not related to this. If the analysis of the defect is made considerably more difficult by such circumstances, the customer must reimburse INVITEC for the additional costs incurred as a result.
7.5 All those defective parts that exhibit a material defect within the limitation period are to be repaired, redelivered, or provided again free of charge by INVITEC – at INVITEC’s discretion – insofar as the cause of this defect already existed at the time of the transfer of risk.
7.6 Payments by the customer in the case of notices of defects may only be retained to an extent that is in reasonable proportion to the defects which have occurred.
7.7 If the customer wrongly complains about the existence of a defect for which INVITEC is not responsible, INVITEC is entitled to charge the customer for the reasonable expenses it has incurred for the rectification or determination of the defect.
7.8 Claims by the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded, insofar as the expenses increase due to the subsequent transfer of the delivered system or parts thereof to a location other than the original place of delivery, unless this is a transfer required according to the contract. INVITEC is entitled to charge the customer with such additional costs. In the case of software, the customer must, at INVITEC’s request, send the data carrier to INVITEC for examination and, if necessary, removal of the defect. INVITEC will cover the postage costs.
7.9 The customer’s claims for material defects shall become statute-barred 12 months after the passing of risk. However, the statutory limitation periods shall apply if these are determined by law to be longer than 24 months. This applies in particular in the case of intentional or grossly negligent causation of a defect and in the case of fraudulent concealment of a defect. These limitation periods shall also apply to consequential damage caused by a defect that is covered by Section 437 No. 3 of the German Civil Code (BGB). If subsequent performance is required due to a defect, the limitation period shall only be suspended until subsequent performance and shall not be restarted.
7.10 Before the customer can assert further claims or rights (withdrawal, reduction, damages, reimbursement of expenses), INVITEC must first be given the opportunity for subsequent performance within a reasonable period of time, insofar as INVITEC has not given a guarantee to the contrary. If the supplementary performance fails despite at least three attempts at supplementary performance, if the supplementary performance is impossible, if INVITEC refuses it, or if it is unreasonable for the customer, then the customer can withdraw from the contract or reduce the payment (reduction). Item 9 of these conditions applies to the assertion of claims for damages by the customer.
7.11 Section 9 of these Terms and Conditions shall apply to claims for damages due to defects. The assertion of further claims and rights against INVITEC or its vicarious agents due to a material defect is excluded.
8 industrial property rights/defects in title
8.1 Unless otherwise agreed, INVITEC is only obligated to provide the owed service free of third-party rights in the country of the place of delivery.
8.2 In the event of an infringement of third-party property rights for which INVITEC is responsible, INVITEC can, at its own discretion, either demand and grant a right of use sufficient for the agreed or presumed use, or modify the service in such a way that the property right is not infringed, or replace the service, insofar as the agreed or presumed use by the customer is not significantly impaired as a result. If this is not possible or unreasonable for INVITEC, the customer is entitled to legal claims and rights. Section 9 applies to claims for damages.
8.3 If the customer becomes aware that the industrial property rights of third parties are being asserted, INVITEC must be informed of this immediately. If such claims are asserted by third parties against the customer, INVITEC has the right to decide whether INVITEC or the customer will conduct the proceedings against the third party. In the latter case, INVITEC will provide the customer with information and appropriate support free of charge. In any case, any agreements made by the customer with third parties require the prior consent of INVITEC.
8.4 The customer must indemnify INVITEC from all such third-party claims that are asserted against INVITEC by third parties based on services or actions of the customer, such as an adaptation of the software.
8.5 Sections 7.6 to 7.9 and 7.11 of these conditions apply accordingly to defects of title.
9 Claims for damages and liability for other reasons
9.1 The assertion of claims for damages due to defects in the services owed to the customer is excluded, unless INVITEC caused the defects intentionally, through gross negligence, or through a negligent significant breach of duty. The assertion of consequential damages, in particular lost profits, due to such defects is excluded, insofar as INVITEC only caused the defect through slight negligence or through no fault of its own. This applies in particular if INVITEC cannot carry out a supplementary performance for reasons for which INVITEC is not responsible. This limitation of liability also applies to the customer’s claims for reimbursement of expenses due to defects. This limitation of liability for damage caused by defects does not apply to slightly negligent causation of damage resulting from injury to life, limb or health.
9.2 The assertion of claims for damages for a violation of a durability guarantee (§ 443 Para. 2 BGB) possibly given by INVITEC or third parties for whom INVITEC is responsible is excluded, insofar as INVITEC is not responsible for the violation.
9.3 Otherwise, claims for damages and claims for expenses on the part of the customer are excluded, regardless of the legal grounds, in particular, due to the violation of obligations arising from the contractual obligation and from tort.
9.4 The above limitations of liability do not apply to claims according to §§ 1, 3 of the Product Liability Act, in cases of intent or gross negligence, for injuries to life, body and health, due to the assumption of a guarantee for the existence of a property (quality guarantee) or in the case of a negligent significant breach of INVITEC’s obligations. However, liability in the case of negligence is always limited to the foreseeable damage typical for the contract, unless there is an injury to life, a bodily injury or damage to health, or a guarantee of quality, or something else has been agreed upon.
9.5 Insofar as INVITEC’s liability is excluded or limited, this also applies to the personal liability of INVITEC’s employees, workers, staff, representatives, and vicarious agents.
9.6 The statute of limitations for claims between INVITEC and the customer is governed by Section 7.9 of these conditions, insofar as claims from the Product Liability Act are not affected.
9.7 The Customer shall take reasonable precautions to protect its data, the Software and the license key. This includes in particular the at least once daily data backup. This data backup shall concern all data of the system and such data that are stored or generated via the system; the “Principles of Proper Data Processing” shall be applied. If the customer fails to make an appropriate backup, INVITEC is not liable for the resulting damages.
10 Transfer of Risk/Acceptance
10.1 The risk of the system being delivered by INVITEC, or parts thereof, is generally transferred to the customer when it leaves the INVITEC factory, at the latest, however, when it is delivered. If acceptance has been agreed upon, this does not affect the transfer of risk. This does not apply if INVITEC exceptionally owes a work performance.
10.2 Unless acceptance is required by law (in the case of contracts for work and services), acceptance has no influence on the start of the limitation period for claims for defects.
10.3 The assertion of claims for defects with regard to such defects that were known to the customer at the time of acceptance, but which were not reported to INVITEC at this time, is excluded.
10.4 Acceptance of the services, insofar as it has been agreed, must take place formally in accordance with INVITEC’s acceptance protocols. If the customer or INVITEC have not requested acceptance within five working days after the completion of the service, the service is considered to have been accepted.
11 Retention of Title
11.1 INVITEC retains ownership of all delivered objects, including delivered software, until all payments from the business relationship with the customer have been received. In the event of behavior contrary to the contract on the part of the customer, especially in the case of default of payment after an appropriate deadline has been set, INVITEC is entitled to take back the delivered items or parts thereof. The withdrawal from the contract does not exclude the assertion of claims for damages and claims for expenses against the customer. After taking back the objects, INVITEC is authorized to realize them; the realization proceeds are to be credited against the customer’s liabilities – minus reasonable realization costs. The regulations of the InsO (Insolvency Code) remain unaffected.
11.2 The customer shall be obliged to treat the delivered items, including software, with care; in particular, it shall be obliged to insure them adequately at its own expense against damage by fire, water, and theft at replacement value. If maintenance work is required, the customer must carry this out in good time at its own expense.
11.3 In the event of seizures by third parties or other interventions by third parties, the customer must inform INVITEC immediately in writing. The customer is liable to INVITEC for the judicial and extrajudicial costs of any necessary action in accordance with § 771 ZPO (third-party action).
11.4 The system, its parts, and software are only distributed to end users. A resale of the items subject to retention of title by the customer is therefore not permitted.
12 Product support contract
12.1 Subject to the conclusion of a product support contract with the customer, INVITEC is not obligated to provide support beyond the warranty obligations.
12.2 Subject to a special arrangement with the customer, INVITEC is not obligated to train the customer’s employees or vicarious agents.