These GTC apply to all types of IT services provided by Scopewire Data GmbH and its affiliated subsidiaries, hereinafter referred to individually or collectively as “SCOPEWIRE”, to their customers, hereinafter referred to as “Customer”.
1.1.These General Terms and Conditions shall apply to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (hereinafter also referred to as “Customer”). Any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions shall not apply unless SCOPEWIRE has expressly agreed to such terms and conditions in writing.
The General Terms and Conditions consist of the General Part, the definitions of terms and regulations of a Special Part (e.g. Special Part A – Provision and Use of Individual and Standard Software). The respective individual contract concluded with the customer regulates which provisions apply. In the event of conflicting regulations, the following order of precedence shall apply: 1. “Regulations from the individual contract” before 2. “Regulations from the Special Part of the General Terms and Conditions of SCOPEWIRE” before 2. “Regulations from the Special Part of the General Terms and Conditions of SCOPEWIRE” before
2. offer and conclusion of contract
2.1 Offers are subject to change unless otherwise stated in writing on the offer. A contract for the respective type of service is concluded upon signature of an order form by the Customer and SCOPEWIRE or by means of an order placed by the Customer and receipt of a corresponding order confirmation by SCOPEWIRE by the Customer. Oral agreements or promises shall require written confirmation by SCOPEWIRE in order to be effective.
2.2.SCOPEWIRE retains ownership or copyright of the documents provided to the Customer, such as quotations and cost estimates. These documents are subject to the confidentiality provisions of Section 13. of these Terms and Conditions.
2.3.Order form and order confirmation are hereinafter referred to as “order documents”. Further terms and conditions for software programs may result from documents provided by SCOPEWIRE and becoming part of the respective contract as attachments and order documents. Annexes become part of the contract by reference (for example in an order document).
2.4.In case of contradictions between the terms and conditions of the various contractual documents, the provisions of the Annexes or other individually concluded contracts shall prevail over the provisions of these Terms and Conditions.
3. term and termination
3.1.The obligation to provide the contractual services shall commence at the time specified in the order documents and shall run for the agreed period. In the case of temporary licensing of the Software, the Agreement shall terminate upon expiration of the Agreement. After expiry of the agreed contract term, the contract shall be automatically extended by a further year in each case unless it is terminated by one of the parties with three months’ notice to the end of the fixed term or an extension period.
3.2.The parties shall be entitled to terminate the individual contract extraordinarily for good cause during the limited licensing period. Good cause, which entitles SCOPEWIRE to terminate the contract, shall also exist in particular if the Customer either fails to meet its payment obligations after expiration of a reasonable period of time or violates license provisions or breaches a material provision of these contractual terms and conditions.
3.3.The customer’s right of termination pursuant to § 543 para. 2 S. 1 No. 1 BGB is only permissible in the case of significant defects and only if significant defects cannot be remedied despite the setting of a deadline and a corresponding threat and a remedy of the defect is to be regarded as having failed.
3.4 Upon termination of the individual contract for the temporary provision of the Software, the Customer shall immediately cease using the Software and destroy all copies of the Software or – upon SCOPEWIRE’s request – return all copies of the contractual Software to SCOPEWIRE, unless their retention is required by law for a longer period. In this case, the return or destruction will take place at the end of this period. Upon request, Customer shall assure SCOPEWIRE in writing that it has complied with the obligations of this section.
3.5.Any termination must be in writing.
4. prices and terms of payment
4.1.Prices are in EURO and in net plus statutory value added tax. Costs for packaging, shipping, customs as well as fees and other possible public charges will be charged separately.
4.2.Invoice amounts are to be paid no later than 14 days after receipt of the invoice, without any deductions. The deduction of a discount is only permissible with a special written agreement.
4.3.Offsetting with counterclaims by the customer is excluded, unless the claim in question is undisputed or legally established.
4.4.A refund of license or maintenance fees (e.g. in the event of a reduction in the number of users, licenses used or a change of license type) is excluded.
5. delivery, transfer of risk, license key, delivery time
5.1.The contractual software shall only be made available online for download. The transfer of risk takes place with provision for download and corresponding information of the customer. SCOPEWIRE shall not be responsible for the installation, customization, or commissioning of software or for training in this regard, unless the parties have reached an agreement to this effect in writing.
5.2.The technical system environment required for the operation of the Software (e.g. with regard to database, operating system) shall be provided by SCOPEWIRE upon request (also prior to conclusion of the contract). It is also listed in the product documentation for the software.
5.3.License keys are required to use the software. SCOPEWIRE shall transmit the same upon receipt of full payment. If SCOPEWIRE decides to provide the Customer with temporary license keys in advance until full payment has been received, these are revocable at any time.
5.4 Deadlines and dates for deliveries and services shall only be deemed fixed dates if they have been explicitly agreed as such.
5.5 If the performance of the service is delayed and SCOPEWIRE is responsible for such delay, the Customer shall only be entitled to rescind the contract if a reasonable deadline set by the Customer for delivery has expired to no avail.
5.6 If SCOPEWIRE is obligated to pay damages due to delay in delivery or performance or due to impossibility, liability shall be governed exclusively by clause 10 of these Terms and Conditions. Reasonable partial deliveries are also permissible without a separate agreement. In this context, each partial delivery shall be deemed to be an independent transaction.
5.7 In cases of force majeure, i.e. events beyond the control of SCOPEWIRE or events for which SCOPEWIRE is not responsible (force majeure), such as war, natural disasters, labor disputes, governmental orders, SCOPEWIRE shall be released from its timely delivery and performance obligations for the duration of the disruption. Delivery and performance deadlines shall be postponed by the duration of the disruption. SCOPEWIRE will inform the Customer appropriately about the disruption. If an end to the disruption is not foreseeable or if it lasts for an unreasonably long time, taking into account the agreed delivery or performance dates and the interests of both parties, and if one party cannot reasonably be expected to adhere to the contract as a result, that party shall be entitled to withdraw from the contract. Further claims of the parties, in particular claims for damages, are excluded.
5.8.In principle, the customer is obliged to observe the import and export regulations applicable to the deliveries and services on his own responsibility, in particular those of the USA. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed in writing.
6. place of performance
The place of performance for all obligations arising from the contractual relationship shall be at the discretion of SCOPEWIRE, unless otherwise specified.
7. claims for defects
7.1 If discovered obvious defects are not reported within a period of 14 days, the customer can no longer assert warranty claims.
7.2 If, in all cases other than the services mentioned in this Agreement, a defect occurs in the services provided by SCOPEWIRE, SCOPEWIRE shall, within a reasonable time, i.e. without culpable delay, at its own discretion either remedy the defect or provide the service complained of again free of defects (subsequent performance).
7.3 If the supplementary performance fails, in particular because the defect is not remedied despite the attempts to remedy it, the supplementary performance is unreasonably delayed or is unjustifiably refused, the customer may demand withdrawal from the contract or a reduction in price.
7.4.The customer has no claims for defects due to faults caused by damage, incorrect connection or incorrect operation by the customer itself. Likewise, the claim is expressly excluded to the extent that the Customer has modified the Software itself or has had it modified by third parties, unless the Customer proves that the modification does not significantly impede the analysis or processing efforts by SCOPEWIRE and that the defect in the Software was already present at the time of acceptance.
7.5 Claims for defects shall become statute-barred within one year from the statutory commencement of the limitation period.
8. software material defects
8.1.The customer acknowledges that it is currently not possible to develop software according to the state of the art in such a way that it works error-free in all use cases and combinations. SCOPEWIRE therefore guarantees neither uninterrupted nor error-free use of the program. The scope of performance and functionality of the software is therefore determined by the product descriptions valid at the time of conclusion of the contract. Only deviations from the product description that are proven and reproducible by the customer shall be considered material defects of the software. A material defect shall not exist if it does not occur in the version of the software last provided to the customer and its use is reasonable for the customer.
8.2 The processing of a notice of material defect by the Customer by SCOPEWIRE shall only result in the suspension of the statute of limitations to the extent that the statutory requirements are met. This shall not result in a new start of the limitation period.
8.3.SCOPEWIRE does not warrant that the delivered software is compatible with the data processing environment used by the Customer, in particular with software and hardware products used by the Customer. Only statements made in the product documentation and any additional specification shall be deemed to be the quality of the software or service provided. Upon request, this information will be made available to the customer (also before the conclusion of the contract). Public statements, promotions and advertisements in e.g. flyers, presentations or websites do not constitute a contractual statement of quality. The customer must ascertain the suitability of the software for its specific purposes on the basis of vendor information.
8.4.The customer shall take all reasonable measures to prevent or limit the consequences of damage caused by defective software. The customer must install the software himself without delay and inspect the software or services provided for their functionality and for defects. Defects occurring later, within the warranty period, must be reported by the customer immediately in writing, describing the defect and the corresponding data processing environment as precisely as possible. The Customer shall provide documentation of the error message by means of documents verifiable by SCOPEWIRE on the nature and occurrence of deviations from the service description and shall cooperate in the containment of errors (Clause 11). He/she shall ensure regular backup of programs and the data entered and to be processed. If the Customer culpably violates this obligation, SCOPEWIRE shall not be liable for any consequences arising therefrom, in particular for the replacement of lost or damaged data or programs. This does not imply a change in the burden of proof.
8.5.The limitation period for material defects shall begin with the commissioning or installation of the software, but in any case no later than 6 months after delivery or acceptance.
8.6 If, during this period, software defects occur in the software delivered by SCOPEWIRE that affect its value or suitability to a more than insignificant extent, SCOPEWIRE shall examine such defects and, insofar as such defects are covered by warranty, remedy them at its own discretion by eliminating the defect or delivering software free of defects. The elimination of program errors is carried out either by pointing out a workaround for the error that is reasonable for the customer or by delivering a new output status (“update”). Alternatively, SCOPEWIRE is free to provide a new version (“Upgrade”). If the Customer refuses access to the Licensed Material for the aforementioned purposes or if the Customer does not insert updates or upgrades provided to it into the user environment, subsequent performance shall not be deemed to have failed. If, in the event of a warranty claim, the rectification of defects by means of a replacement delivery remains unsuccessful after several attempts, the customer may demand a pro rata reduction of the purchase price or withdraw from the contract.
8.7 Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, in the event of only insignificant impairment of the usability or as a result of defects caused by external influences or influences that are not provided for in the contract and that are not under the control of SCOPEWIRE, e.g. use of the software in a non-recommended system environment or on a non-recommended platform in accordance with the product documentation. The liability for defects shall lapse if the Customer modifies the Software or has it modified by third parties without SCOPEWIRE’s consent, unless the Customer proves that the defects in question were not caused by such modification and that the rectification of defects is not rendered impossible or unreasonably difficult by the modification. The provision of the preceding sentence shall also apply in the event of a connection with third-party hardware and/or software not authorized by SCOPEWIRE, as well as in the event of use of the software not in accordance with the contract and/or not in a proper manner. In any case, the customer shall bear the additional costs incurred for the rectification of defects in the aforementioned cases. If SCOPEWIRE provides services in troubleshooting or remedying defects without being obligated to do so, SCOPEWIRE shall be entitled to demand remuneration in accordance with the current hourly rates. Additional expenses incurred by SCOPEWIRE due to the Customer’s failure to properly fulfill its cooperation obligations shall also be compensated.
8.8 Claims by the customer for reimbursement of expenses incurred for the purpose of remedying defects, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the software has been taken to a location other than the customer’s branch office, unless the transfer is in accordance with its intended use.
8.9.Further claims, in particular claims for compensation for damage not caused to the software itself, such as loss or incorrect processing of data, are excluded.
8.10.Claims for defects and liability of the Customer against SCOPEWIRE with respect to the Open Source Software delivered free of charge are excluded except in the case of intent and gross negligence and in the case of fraudulently concealed defects (in corresponding application of the provisions of §§ 521 et seq. of the German Civil Code).
9. defects of title
free from third party industrial property rights and copyrights (hereinafter referred to as “Property Rights”) only in the country of the place of performance. If a third party asserts claims against the Customer due to the infringement of property rights by the performance of the Software provided by SCOPEWIRE and used in accordance with the contract, SCOPEWIRE shall be liable to the Customer in the case of Software provided for an indefinite period of time within the limitation periods set forth in Section 8.5 as follows:
9.1.SCOPEWIRE may, at its option and at its expense, either obtain a right of use for the Software in question or modify it in such a way that an IP right is not infringed or replace it entirely. In this respect, Clause 8 shall apply mutatis mutandis.
9.2.The aforementioned obligations of SCOPEWIRE shall only exist to the extent that the Customer immediately notifies SCOPEWIRE in writing of the claims asserted by the third party, does not acknowledge an infringement and SCOPEWIRE reserves the right to all defensive measures and settlement actions.
9.3 If the customer discontinues the use of the software in order to mitigate damages or for other important reasons, it shall be obliged to point out to the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights.
9.4.Claims of the Customer shall be excluded to the extent that the Customer is responsible for the infringement of property rights or the infringement of property rights is caused by special specifications of the Customer, by an application not foreseeable by SCOPEWIRE or by the fact that the Software is modified by the Customer or used together with hardware not supplied by SCOPEWIRE.
9.5 In the event of other defects of title, the provisions of Section 8 shall apply accordingly.
10.1.SCOPEWIRE shall be liable without limitation in accordance with the statutory provisions for damage to life, limb and health resulting from a negligent or intentional breach of duty on its part, its legal representatives or its vicarious agents, as well as for damage covered by liability under the Product Liability Act, as well as for damage resulting from intentional or grossly negligent breaches of contract and fraudulent intent on the part of Scopewire, its legal representatives or vicarious agents. Insofar as Scopewire has given a quality and/or durability guarantee with regard to the software or parts thereof, it shall also be liable within the scope of this guarantee. However, Scopewire shall only be liable for damages which are based on the lack of the guaranteed quality or durability but which do not occur directly on the goods if the risk of such damage is obviously covered by the guarantee of quality and durability.
10.2.SCOPEWIRE shall also be liable for damages caused by simple negligence, to the extent that such negligence concerns the breach of such contractual obligations, compliance with which is of particular importance for the achievement of the purpose of the contract. The same shall apply if the customer is entitled to claims for damages instead of performance. However, Scopewire is only liable to the extent that the damages are typically associated with the contract and are foreseeable. However, in the case of negligently caused damage to property and financial loss due to the breach of a material contractual obligation, the amount of the claim for damages shall be limited to the damages foreseeable at the time of the conclusion of the contract and typical for the contract. Material contractual obligations are those whose fulfillment characterizes the contract and on which the customer may rely.
10.3.Liability for other remote consequential damages is excluded.
10.4 Liability for compensation of indirect damages, in particular for lost profits, shall only exist in case of intent or gross negligence of SCOPEWIRE or its legal representatives, executives or other vicarious agents.
10.5 Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risk.
10.6.For the Open Source Software provided free of charge, the provisions of Section 8.10 shall apply with respect to SCOPWIRE’s liability towards the Customer.
10.7 Any further liability of SCOPEWIRES shall be excluded regardless of the legal nature of the asserted claim; this shall apply in particular to tortious claims or claims for reimbursement of futile expenses instead of performance. Insofar as the liability of SCOPEWIRES is excluded or limited, this shall also apply to the personal liability of its employees, representatives or vicarious agents.
11. cooperation of the customer
11.1.The customer is obliged to examine the new program version for any obvious defects immediately after receipt. Any obvious defects detected during the inspection shall be notified to SCOPEWIRE in writing by e-mail within a period of 14 days from the date of download of the respective update. In this notification, the customer shall precisely describe the defect (in particular, conditions under which it occurs, symptoms and effects of the defect).
11.2.The Customer shall grant SCOPEWIRE access to its own premises and access to the required hardware and software on site during regular business hours and to the extent necessary, and shall provide the required technical facilities. Insofar as the urgency of the respective care service requires, access will also be granted outside the customer’s regular business hours.
11.3.The Customer shall appoint a qualified employee who shall be available as a contact person for SCOPEWIRE and who shall be authorized to make the decisions necessary for the execution of the contract.
11.4.The customer is responsible for a proper installation of the new software. Only SCOPEWIRE’s instructions are authoritative for this.
12.1.The Customer shall designate a contact person vis-à-vis SCOPEWIRE prior to the commencement of the service provision with whom all measures within the scope of the offered service shall be coordinated. Requests and notifications from end users must always be made through this contact person / representative.
12.2.The Customer undertakes to inform SCOPEWIRE immediately of any replacement of the aforementioned contact persons. Any damages or other disadvantages incurred by the customer as a result of a breach of this obligation shall be borne by the customer.
12.3 The exchange of information as well as inquiries and reports of the Customer shall always be made via the support number +49 5295 231 95 90 or via the e-mail address firstname.lastname@example.org or via the online ticket system at http://support.scopewire.de. If other communication channels are used, timely processing and documentation of the report by SCOPEWIRE cannot be guaranteed.
13.1 “Confidential Information” shall mean all information and documents of the respective other party which are marked as confidential or which are to be regarded as confidential due to the circumstances.
13.2.The parties agree to maintain confidentiality about such confidential information. This obligation exists for the duration of the assignment, as well as for a period of 3 years after the termination of the contract.
13.3.Confidential information shall be deemed to be confidential in particular and irrespective of the form (e.g. written, electronic, oral, digitally embodied or in any other form) in which it is provided:
a) software products, software specifications, source code, know-how, inventions, business processes, business policies or practices, financial information, research and development activities, pricing, training procedures, business plans, business relationships, human resource planning, advertising and marketing strategies.
b) Any documents and information of the Disclosing Party that are the subject of technical and organizational secrecy measures and are marked as confidential or are to be considered confidential according to the nature of the information or the circumstances of the transmission.
c) The existence of the individual contract and its content, in particular its conditions.
13.4.Confidential information is excluded from this obligation,
a) which were demonstrably already known to the recipient at the time the contract was concluded or subsequently become known to it from a third party, without this violating a confidentiality agreement, statutory regulations or official orders;
(b) which are public knowledge at the time of the conclusion of the contract or are made public thereafter, unless this is due to a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall notify the other party in advance and give the other party an opportunity to object to the disclosure.
13.5.Confidential information may only be made available to those employees who require the information for the execution of the individual contract within the scope of the agreed rights and obligations. These employees shall (within the scope permitted by labor law) be obligated by the contracting parties to maintain secrecy accordingly.
14. data protection
14.1.The Parties shall observe the applicable provisions of data protection. In particular, the Customer shall be responsible for compliance with all data protection provisions regarding the processing of connection data as well as personal data and shall ensure that these are complied with in the event of an intervention by SCOPEWIRE. The Customer agrees to the processing and storage of data that have become known to SCOPEWIRE in the course of contractual relations and are necessary for the performance of the contract.
14.2.The Client and SCOPEWIRE undertake to keep strictly confidential any information received about the other party in the course of the initiation and execution of the contract.
14.3.To the extent that it is absolutely necessary for the contractual performance of the Services, the Contractor shall be entitled to disclose information about the Client to subcontractors of the Contractor which it has subcontracted for the performance of the Contract. The Contractor warrants that this information will be used exclusively for the technical implementation of the agreed services and that the subcontractor is bound to secrecy to the same extent as the Contractor.
15. final provisions
15.3.Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavor to find a provision in place of the invalid provision that best meets the objective of the contract in legal and economic terms. The same applies in the event of a gap.
15.4.SCOPEWIRE and its acc. §§ 15 ff. AktG are entitled to name the customer in the context of marketing activities, marketing documents and other publications, in particular publications with advertising content. Likewise, SCOPEWIRE is entitled to report on key data of the conclusion of the contract within the scope of the prescribed mandatory publications.
15.5.SCOPEWIRE shall be entitled to transfer the contract to other group companies pursuant to §§ 15 et seq. of the German Stock Corporation Act (AktG) without the Customer’s consent, provided that such transfer is not unreasonable for the Customer.
15.1.Changes and additions to the order must be made in writing. This also applies to the amendment or cancellation of this clause.
15.2.The exclusive place of jurisdiction shall be Paderborn, the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods, provided that each party is a merchant or a legal entity under public law.