General Terms und Conditions of the ANIC GmbH, Ober-Ramstadt (ANIC GTC)
§ 1 Scope of application
(1) These terms and conditions apply to all legal transactions, orders, contracts, deliveries, services, care or support services, advice, training and other services from anic GmbH, Am Mühlberg 46, 64372 Ober-Ramstadt (hereinafter: “anic”) and their customers according to the closed contract between anic and the customer.
(2) These terms and conditions apply exclusively; terms and conditions of the customer that conflict with or deviate from these terms and conditions will not be recognized by anic, unless anic has confirmed this in text form (e.g. by email). These terms and conditions also apply if anic provides the contractually owed services without reservation, knowing that the terms and conditions of the customer conflict with or deviate from these terms and conditions.
(3) These terms and conditions apply exclusively to customers of anic GmbH who are to be regarded as entrepreneurs within the meaning of § 14 BGB.
§ 2 – Conclusion of the contract
(1) All offers, brochures and prices are subject to change and do not constitute binding offers.
(2) The order of the customer constitutes a binding offer. The contract with the customer only comes into being when anic accepts the order in text form (e. g. by email) or with anic’s first fullfillment
(3) If the subject of the contract is a rental contract, this begins and ends at the times specified in the rental contract. A resignation is only possible up to one day before the start of the contract.
(4) If anic creates individual service offers for the customer, these are done exclusively for an EDP system as the customer specified. For this reason, the customer bears the risk that the products offered on this basis meet his wishes and needs. If the customer would like to agree on binging specifications that deviate from this, he must lay them down in text form (e. g. by email). They only become effectiv if anic countersigns.
(5) If a resignation is legally permitted or under the contract concluded with anic, it must be in text form (e. g. by email).
§ 3 – Rights of use/Copyright/Licenses
(1) anic grants the customer a simple, non-exclusive, non-transferable, worldwide right of use (also referred to as a “license”) for the software purchased or rented by the customer as well as any subsequent adjustments and the documentation associated with the individual case. The granting of rights only becomes effective when the customer has paid the contractually owed remuneration in full to anic. For software from third-party providers, the license terms of the third-party provider that have been provided are used in individual cases.
(2) The customer is fundamentally forbidden to change, translate, reverse engineer, decompile, disassemble software from anic or the associated material or create works derived from the software, unless this is permitted by law. The customer is not allowed to change labels, copyright notices and ownership information on anic products.
(3) If the right of use granted to the customer by anic products ends due to a legal or contractual right of resignation from the contract, the customer must return all data media with programs, any copies, written documentation and advertising aids to anic. The customer deletes all stored programs from his computer system, insofar as and as long as he is not obliged to store them due to mandatory legal regulations. In addition, the customer returns all other objects and documents immediately, but no later than two weeks after termination of the contract.
(4) The copyright law and the provisions of the respective license contract as well as the provisions of the anic EULA valid at the time of the respective contract conclusion apply to the software produced by anic itself.
(5) In addition, the mandatory provisions of the Copyright Act (§§ 69a ff. UrhG) apply with regard to the rights of use. Renting out the software is prohibited.
§ 4 – Scope of service
(1) Technical data, specifications and performance data in public statements, especially in advertising material, are not quality data. The functionality of the software is initially based on the description in the version of the user documentation that is current at the time the contract is concluded and the additional agreements made. Furthermore, the software must be suitable for the use required by this contract and must otherwise have a quality that is common with software of the same type.
(2) If anic provides IT consulting services, the specific scope of the service to be provided by anic results from the order form used, together with any service descriptions and the price list.
(3) anic is entitled to partial services insofar as this is reasonable for the customer. Anic’s consulting services also include the selection and involvement of third parties. If the customer’s right to have a say has not been expressly agreed, the selection of third parties is carried out taking into account the principle of a balanced relationship between cost-effectiveness and the best possible success for the customer.
(4) As a matter of principle, only the anic product description is deemed to be agreed as the quality of the goods. Public statements, promotions or advertising do not constitute any information about the quality of the purchased item.
(5) anic leaves contractual software and any subsequent adjustments to the customer in an executable form (hereinafter referred to as object code), as well as, in individual cases, associated documentation in machine-readable form. Unless otherwise agreed, the software is made available without any maintenance or support services.
(6) The software is usually provided by sending the license key required to use or unlocking the software by email or letter, by making the software available for download or by email, or by sending a sealed data medium.
(7) Insofar as anic owes the transfer of later adjustments, these adjustments are provided in the same way as the previous software transfer, unless otherwise agreed.
(8) If the customer wants to change his task in whole or in part, anic is obliged to agree to this, insofar as it is reasonable in particular with regard to the effort and the scheduling. Insofar as the implementation of a change request affects the contractual terms or results in a higher workload, anic can request an appropriate adjustment of the contractual terms, in particular the increase in remuneration or the postponement of the dates.
§ 5 – Training
Training is carried out at the choice of anic at the customers place or at another location to be determined in consultation with the customer. In the case of training at the customer, the customer provides the appropriate premises and technical equipment after consultation with anic. Recording and preparation of the training needs as well as preparation of the training and implementation of the training are done by anic.
§ 6 – Delivery and performance obligations
(1) anic provides the deliveries of its products or services owed under the contract within the contractually agreed delivery times. Without an express agreement to the contrary, all delivery times are approximate. They are subject to correct and timely self-delivery and are extended independently of this by the period during which anic is prevented from delivering the products or to provide the services on time by circumstances for which it is not responsible (e.g. industrial disputes, force majeure or comparable circumstances). The same applies to the period in which anic waits for the customer to fulfill its obligations to cooperate, which are necessary for the delivery of its products or the provision of services. anic will always inform the customer about foreseeable delays and will endeavor to deliver the products on time.
(2) anic is not responsible for the complete or partial failure of the performance of its products (malfunctions), which is caused by the fact that the customer or third parties, whose actions can be attributed to the customer, use or treat the products differently than intended in the operating description. The same applies if the customer uses its own hardware or software or other material in connection with anic’s products, which are not expressly designated as suitable by anic and the malfunction is caused thereby. The same applies if the customer does not participate in the analysis and / or elimination of the malfunction by anic to the extent required.
(3) anic is responsible for the regularity of data traffic in the anic network and for such connection networks for the delivery of products which, by agreement, require the customer to use the Internet, for which it expressly assumes responsibility. The customer accepts that anic is not responsible for disruptions to deliveries that are caused by an impairment of data traffic on the Internet outside of anic’s sphere of influence, which has just been defined.
(4) The service of anic does not include installation or implementation unless this has been expressly agreed between the parties in text form (e.g. by email). If an installation is due on the basis of an express agreement in text form (e.g. by e-mail), this includes the installation of the service object in the customer’s specified environment. It does not include any other services, in particular not adapting existing programs by the customer to the software supplied and introducing them to users. This also applies if the programs already available to the customer have been purchased from anic.
(5) If the shipping of products has been appointed by anic, the risk of accidental loss or accidental deterioration passes to the customer when the products are handed over to a transport company. In the case of delivery by anic itself, the risk passes to the customer by handing over. This also applies to partial deliveries and if a freight-free delivery has been agreed.
(6) anic can temporarily block the access of third-party computers or services to its infrastructure if such a block is necessary to protect the infrastructure of the network operated by anic or its customers from acute dangers and the relevant danger situation is not the responsibility of anic.
§ 7 – Acceptance
(1) If the german “Werksvertragsrecht” (english: contract law for work) applies, anic will notify the customer of the readiness for acceptance in text form (e.g. by email) after completion. The acceptance must then be carried out within a period of 5 days. It may not be refused on the basis of defects which do not or only insignificantly impair the functionality of the service.
(2) If the acceptance does not take place within a period of 14 days from notification of readiness for acceptance for reasons for which anic is not responsible, the acceptance is deemed to have taken place at the end of this period. An acceptance is also deemed to have taken place as soon as the customer has used our services.
§ 8 – Cooperation obligations of the customer
(1) The customer is obliged to support anic in the implementation of the contractual relationship. This relates in particular to the necessary data, information and approvals as well as participation in the course of the project. The customer alone is responsible for selecting the suitable software and compatibility with any EDP systems that the customer may already have. It is also the customer’s responsibility to provide the system requirements necessary for the installation to be carried out correctly.
(2) The customer is obligatedver to take account of the system security. He is liable for the safe and responsible storage of all confidential information, especially user IDs, passwords or access codes. The customer must change passwords etc. immediately upon request. If there are indications of misuse of the user ID or password, the customer must inform anic immediately. The customer is not entitled to hand over passwords for the use of anic services to third parties. If the customer does not fulfill his duties and obligations, anic can ask him to comply with them and, if they are still not fulfilled, discontinue the services and terminate the contractual relationship without notice.
(3) The customer must also take appropriate data backup measures.
(4) If the customer does not fulfill his cooperation obligations even after setting a reasonable grace period by anic, anic is entitled to choose to temporarily or partially suspend the execution of the order or to withdraw from the contract and to compensate for the expenses incurred to date plus a loss of profit to demand.
§ 9 – Prices and Terms of payment
(1) The amount of the prices and the due date of the customers obligation to pay result from the respective contract between anic and the customer and the current price sheet from anic at the time the contract was signed.
(2) The prices do not include sales tax and are net prices. In this case, the sales tax will be shown separately at the statutory amount in the day of invoicing.
(3) Invoices are principle due immediately and have to be paid within 14 days of the date of invoice without deduction by bank transfer to an anic account. A discount is only granted on the basis of an explicit agreement in text form (e. g. by email).
(4) If a customer is in default with his payment obligations, aniccan claim damages in accordance with the statutory provisions and/or withdraw from the contract. Owed payments are subject to interest at 9% above the respective base rate in accordance with § 247 of the German Civil Code without the need for a reminder. In addition, the assertion of further claims due to delay remains reserved.
(5) If a customer is in default with his payment obligations, aniccan claim damages in accordance with the statutory provisions and/or withdraw from the contract. Owed payments are subject to interest at 9% above the respective base rate in accordance with § 247 of the German Civil Code without the need for a reminder. In addition, the assertion of further claims due to delay remains reserved.
(6) In the case of default of payment with a not inconsiderable part of the invoice amount or if anic’s payment claim is endangered due to a significant deterioration in the customer’s financial situation, anic is entitled to immediately call all claims from the customer contracts due. Anic is further entitled to discontinue the services until the customer has paid his due liabilities.
(7) Anic is entitled to initially offset payments of the customer against older debts of the customer. If costs and interest have already arisen due to default, anic is entitled to offset the payment first against the costs, then against the interest and finally against the main services.
(8) Anic always issues an invoice to the customer, which it receives in text form (e.g. by e-mail).
(9) Subsequent changes to the scope of the order at the instigation of the customer, including the resulting additional expenses will be charged to the customer separately in accordance to the anic price sheet. For self-contained parts of the service anic reserves the right to claim advance payment in the amount of the service value provided in accordance with the legal provisions.
§ 10 – Retention of title
(1) anic retains title to its products until all payments from the concluded contract and all claims arising from the current business relationship in connection with the contract have been received.
(2) If anic’s reserved property is impaired by a third party through seizure or in any other way, the customer is obliged to inform anic of this immediately and to inform the third party of anic’s security interests.
§ 11 Liability for deficiencies
(1) If there are defects, the customer is entitled to the statutory warranty rights in accordance with the following provisions. If only merchants are involved in the contract, §§ 377 ff. HGB (GERMAN COMMERCIAL CODE) shall apply additionally.
(2) Entrepreneurs who are not merchants must report obvious defects to anic in text form (e.g. by e-mail) within two weeks. If the notification is not made within the aforementioned period, the warranty rights shall expire. This does not apply if anic has fraudulently concealed the defect or has assumed a guarantee for the quality of the item.
(3) The customer must check the contractual conformity of the delivered products immediately upon receipt and notify anic immediately of any defects discovered. If the customer fails to inspect the goods or report defects in a timely manner, the delivered goods are deemed to be approved, unless the defect was not recognizable during the inspection. Defects discovered later must also be reported to anic without delay; otherwise the goods are also deemed to be approved with regard to these defects. The notification of defects must be made in text form (e.g. by e-mail) and must describe the defect in detail.
(4) The warranty period is always one year. The period of limitation in case of a delivery recourse according to § 478 BGB remains unaffected. This does not apply if claims for damages due to defects are involved.
(5) anic reserves the right to choose the type of supplementary performance in the event of a defect. This shall be done either by eliminating the defect free of charge (rectification of defects) or by delivering goods or software free of defects (replacement delivery). In the case of a replacement delivery, anic reserves the right to provide the customer with a new product or program version of the software with at least an equivalent range of functions, unless this is unreasonable for customers.
(6) If anic does not succeed in rectifying the defect within a reasonable period of time or if the rectification or replacement delivery is deemed to have failed for other reasons, the customer is only entitled, at his discretion, to reduce the remuneration owed (reduction) or withdraw from the contract (withdrawal).
(7) Failure of the repair or replacement delivery can only be assumed if the customer has given anic sufficient opportunity to repair or replace the goods without the performance owed under the contract being fulfilled, if the repair or replacement delivery is impossible, if it is refused or unreasonably delayed by anic, if there is reasonable doubt regarding the prospects of success of the fulfilment of the contract or if it is unreasonable for other objectively demonstrable reasons.
(8) If, however, it subsequently turns out that a reported problem with the software, the associated subsequent adaptation, if applicable, and the documentation is not due to a defect for which anic is responsible, anic is entitled to charge the customer for the time and effort it has demonstrably invested in the analysis and elimination of the problem, provided that the customer has recognised or negligently failed to recognise that there is no defect.
(9) The warranty obligation for defects shall not apply if changes are made to the software which is the subject of the contract and to the associated subsequent adaptations and documentation without the express approval in text form (e.g. by e-mail) by anic and/or the third party provider, unless the customer can prove that these changes were not causal for the defect which has occurred. Furthermore, the warranty obligation for goods secured against tampering with security seals does not apply if the customer breaks the security seal.
§ 12 – Property rights of third parties
(1) We warrant that the performance results provided within the scope of our contracts are free of third-party property rights and that, as far as anic is aware, there are no other rights that restrict or exclude use in accordance with the respective agreements.
(2) We indemnify the customer from all claims of third parties who assert a violation of industrial property rights. The customer will inform anic immediately in writing (e.g. by e-mail). The customer will leave it to anic to defend itself against these claims both in and out of court, solely and at anic’s expense, and will also provide anic with all reasonable support. This applies in particular to information on how the customer has used the product. This information shall be provided in text form (e.g. by e-mail) if possible.
(3) If the rights of third parties are infringed which impair the contractual use, anic has the right, to an extent reasonable for the customer, to choose between either modifying the contractual services in such a way that they fall outside the scope of protection but still comply with the contractual provisions, or to obtain the authority to ensure that they can be used in accordance with the contract without restrictions and without additional costs for the customer.
§ 13 – Liability for damage
(1) anic shall be liable to the customer in accordance with the statutory provisions for damages and reimbursement of expenses in the event of culpable injury to life, body and health as well as in the event of intent and gross negligence, fraudulent concealment of a defect or a guarantee assumed by us and in accordance with the Product Liability Act.
(2) anic shall also be liable for slightly negligent breach of a material contractual obligation (cardinal obligation). Material contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In these cases, however, liability is limited to compensation for foreseeable damage typical for the contract.
(3) Otherwise, liability for damages and reimbursement of expenses – regardless of the legal basis – is excluded.
(4) The above provisions also apply in favour of anic’s legal representatives and vicarious agents if claims are asserted directly against them.
(5) anic is not liable for the loss of data and/or programs if the damage is due to the fact that the customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort. The customer bears the burden of proof for proper data backups.
(6) anic owes the customary care. In determining whether anic is at fault, it must be taken into account that software cannot be created without technical errors.
§ 14 – Assignment/Offsetting/Right of retention
(1) The customer may only assign claims arising from this contract that are directed against anic to third parties with the consent of anic in text form (e.g. by e-mail).
(2) The customer may only offset claims of anic against claims of anic with undisputed or legally established claims. The customer may only assert a right of retention if it is based on the same contractual relationship. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
(3) If the customer is in default of payment under an individual contract concluded with anic, anic may refuse to fulfil due deliveries within the framework of other business relations with the customer until the default has been eliminated.
§ 15 – Final provisions
(1) Legally relevant declarations and notifications which the customer must make to anic or a third party must be in text form (e.g. by e-mail).
(2) The business relations between anic and the customers are subject to the laws of the Federal Republic of Germany. The validity of UN sales law is excluded.
(3) The contractual language is German and English. We deliver to the following countries: worldwide.
(4) The place of jurisdiction is Ober-Ramstadt, Germany, if the customer is a merchant or a legal entity under public law or a special fund under public law. The same applies if a customer does not have a general place of jurisdiction in Germany or if the place of residence or habitual abode is not known at the time of the commencement of action.
(5) The customer will be informed of changes to the GTC in writing or in text form in good time. The customer can terminate a contract for the use of services without notice within one month after receipt of the notification of change, if anic changes the GTC to the disadvantage of the customer. anic will inform the customer of this right of termination. If the customer does not exercise its right of termination, the right of termination expires one month after receipt of the notification.