1.1
The following terms and conditions apply to all deliveries,services and offers of KiM GmbH.
1.2
Conflicting terms and conditions on the part of the customer shall not become part of this contract, even without express objection or in case of delivery. KiM GmbH has the right to withdraw from the contract if the customer objects to these GTC.
1.3
Deviations from these terms and conditions and/or amendments as well as changes and additions to concluded contracts and terms and conditions of KiM GmbH applicable to them must be in writing.
2.1
Offers made by KiM GmbH are subject to confirmation and non-binding, particularly with regard to prices, quantity and deadlines, delivery options, and additional services.
2.2
The scope of services to be provided by KiM GmbH is determined solely by the order confirmation from KiM GmbH. These terms and conditions and applicable special terms and conditions of KiM GmbH apply additionally if referenced in the order confirmation.
2.3
KiM GmbH reserves the right to mandatory deviations from the offer documentation or from the order confirmation caused by legal or technical standards.
3.1
The customer shall receive a copy of the programs on a program storage medium and a digital copy of the user documentation.
3.2
The customer is responsible for the proper installation of the delivered software. Installation by KiM GmbH or training and instruction of the customer or their staff concerning the operation of the supplied software are not included in the scope of services. Such services require a separate agreement and will be charged separately.
3.3
If such an agreement is made the customer must ensure that the necessary conditions are met, and that sufficient workspace is available for installation and training.
4.1
The customer may use the software license for evaluation purposes for a period of two weeks following upon the delivery. The evaluation period begins with the customer’s receipt of the software license and ends two weeks thereafter.
4.2
During the evaluation period, the customer examines whether the software meets their requirements. If that is not the case, immediate notice of the defects including the details is required in writing. Warranty regulations apply. If no notice of defect is received by the end of the evaluation period the program is considered accepted. The warranty period shall commence upon acceptance.
4.3
If KiM GmbH installs the software in accordance with a separate agreement the customer shall evaluate the software without delay. If the software operates essentially in accordance with the contract acceptance is to be declared without delay. Acceptance shall be deemed to be granted if no notification of defects is made within two weeks following upon the software delivery. The same applies when productive use of the program begins.
5.1
Prices are net and exclude freight charges. Prices apply plus VAT as per order confirmation. Deliveries and services will be charged according to the price list in effect on the day of performance.
5.2
Services will be charged in accordance with the price list in effect at the time of order acceptance.
6.1
KiM GmbH may adjust at its own discretion the compensation for maintenance or software lease with a notice period of two months, effective from January 1 of the subsequent year, by written declaration to the customer, in compliance with the following principles:
6.2
Changes of compensation by KiM GmbH shall not exceed the extent of change of the index mentioned in 6.3 below (scope of change). The first adjustment of compensation shall be based on the index development between the index published at the time of the contract conclusion and the index published at the time of the adjustment declaration. If such an adjustment has taken place already, the scope is defined by the index development between the latest index published at the time of the previous adjustment declaration and the latest index published at the time of the new adjustment declaration.
6.3
The index of average gross monthly salary of full-time employees in Germany for services in information technology (quarterly figures published by the Federal Statistical Office in Fachserie 16, Reihe 2.4, Gruppe J62) is to be used to determine the scope of the amendment. Should this index no longer be published, the index published by the Federal Statistical Office applies which most closely reflects the development of average gross monthly salary in the aforementioned sector of economy.
7.1
Delivery times stated by KiM GmbH are approximate and non-binding. In the event that the agreed delivery date of KiM GmbH is exceeded by more than 6 weeks, the customer is entitled to set KiM GmbH a reasonable grace period for delivery, and to withdraw from the contract if the grace period expires without result.
7.2
Changes to orders result in the cancelation of agreed dates and deadlines, unless otherwise agreed.
7.3
Delivery and service deadlines shall be extended appropriately in the event of force majeure and all other obstacles, for which KiM GmbH is not responsible and which have a significant effect on service delivery.
8.1
If the customer defaults on the acceptance of ordered goods, KiM GmbH is entitled, after setting a reasonable grace period of 14 days, to withdraw from the contract or to demand compensation for damages instead of performance. If KiM GmbH claims damages, these shall amount to 50% of the order value, unless the customer proves a lower damage or KiM GmbH proves a higher damage.
9.1
The customer is aware of the fact that standard software, in view of the wide range of possible applications and its complexity, cannot be error-free. In particular, KiM GmbH makes no promises of compatibility.
9.2
For the software license of the version provided to the customer, KiM GmbH guarantees the contractual use in accordance with the performance description at the time of contract conclusion. In the event of significant deviations from the statement of work, KiM GmbH is entitled and obliged, at its discretion, to correct the defect, or to replace the goods with faultless ones. Furthermore, KiM GmbH can correct defects in the software by providing an update of the latter. If KiM GmbH, within a reasonable period of time, does not succeed in correcting the significant deviations from the statement of work by means of the aforementioned measures or by circumventing them to the extent that the customer is enabled to use the program in accordance with the contract, the customer may assert the statutory warranty rights.
9.3
Warranty claims must be made in writing and must include an exact description of the defect.
9.4
No warranty is granted if the customer, contrary to clause 4 above, does not meet the obligation to inspect and notify defects and if the defect would have been recognizable during the evaluation period. If the customer or a third party make changes to the delivered software, the warranty claim expires, unless the customer proves that the defect does not originate from these changes.
9.5
The warranty period is one year from acceptance or assumed acceptance according to 4.2 and 4.3.
10.1
KiM GmbH is liable without limitation insofar as damage is caused by intent or gross negligence on the part of KiM GmbH, its legal representatives, or vicarious agents.
In addition, KiM GmbH assumes unlimited liability for injury to life, body or health. In addition, KiM GmbH shall be liable within the legal framework under mandatory laws, in particular the Product Liability Act and the Product Safety Act.
10.2
Liability for slight negligence is excluded, unless the case falls under paragraph 1 or paragraph 3.
10.3
In the case of (slightly) negligent violation of essential contractual obligations, KiM GmbH shall be liable only in the amount of the damage foreseeable at the time of the conclusion of the contract. In particular, KiM GmbH cannot be held liable for lack of economic success, loss of profit, indirect damage, consequential damage and claims of third parties, with the exception of claims arising from the infringement of third-party property rights. Otherwise, liability for (slightly) negligently caused damages is limited to the amount of the order value.
10.4
The customer is obliged to perform backups at regular intervals in accordance with their own interest in the continued existence and security of the data. Should the customer violate this obligation, KiM GmbH, in the event of data loss, shall be liable only for damages that would also have occurred if the data had been properly and regularly backed up.
10.5
KiM GmbH shall be liable for the loss of data and its recovery in accordance with the above provisions only if the customer was unable to avoid such loss through appropriate data backups or measures by adequately trained operating personnel.
10.6
The above limitations of liability also apply, mutatis mutandis, for the employees and agents of KiM GmbH.
10.7
The above limitations of liability shall also apply for a simultaneously liability pursuant to § 823 BGB (German Civil Code).
11.1
Unless otherwise agreed, payments are to be made immediately upon invoicing without deductions. In the event of delayed payment and unless KiM GmbH can prove higher damages, KiM GmbH is entitled to demand interest on arrears at a rate of 5% above the base rate in accordance with § 1 of the Discount Rate Transition Act of June 9, 1998.
11.2
The customer shall only be entitled to rights of set-off if their counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is entitled to exercise the right of retention insofar as their counterclaim is based on the same contractual relationship.
12.1
KiM GmbH retains ownership of the program storage media supplied, as well as the right of use of the software stored on them, until the purchase price has been fully paid. If the customer is a fully qualified merchant, the above reservations shall apply until full payment of all claims, arisen or arising, from the business relationship. This applies to the respective balance if individual or all payables are included by KiM GmbH in current accounts. Upon full acquisition of ownership of the program storage media, the customer acquires the rights of use specified in the product license.
12.2
The customer must store the reserved goods with commercial care on behalf of KiM GmbH and insure them adequately at their own expense against fire, water, theft, and other damage risks. The customer assigns their claims from the insurance contracts to KiM GmbH upon conclusion of the contract. KiM GmbH shall accept the assignment.
12.3
The customer hereby assigns to KiM GmbH all payables arising from the resale of the goods or further licensing of the software. The customer is revocably entitled to collect these payables. At the request of KiM GmbH, the customer shall disclose the assigned payables and their debtors. KiM GmbH is entitled to disclose the assignment to the customer’s debtor.
13.1
KiM GmbH grants the customer a non-exclusive right to use (license) the delivered software against payment for an unlimited period of time. The source code is not part of the delivery.
13.2
The license entitles the customer to individual software use within the scope of normal use. This includes the installation of the software and the creation of a backup copy, loading the software into the working memory and its execution. The license does not extend to other types of use. In particular, the customer shall not make any changes, translations or further copies of the software, even partially or temporarily, of any kind and by any means. Printing the program code also constitutes an impermissible duplication. Amendments for which KiM GmbH cannot refuse consent in good faith (§ 39, paragraph 2 UrhG) are permitted. The client shall not make the software, documentation and records available to third parties without the written consent of KiM GmbH.
13.3
An additional license fee shall be paid in accordance with the offer by KiM GmbH to use the provided software on workstations and/or computer systems other than those contractually agreed.
13.4
KiM GmbH is the owner of all industrial property rights and copyrights to the software and the corresponding user documentation. References to copyrights or other industrial property rights, which are on or in the software, may not be changed, removed or otherwise made illegible.
13.5
The customer shall neither rent nor lend the software beyond the contractually agreed uses. A transfer of the software license to a third party is only permitted after prior notification of KiM GmbH, and only if the third party declares its agreement to these terms and conditions in writing, and under the precondition that the customer retains no copies of the software (including any previous versions). The customer shall not reverse engineer, decompile or disassemble the software. Apart from that, §§ 69d, 69e UrhG remains unaffected.
13.6
KiM GmbH offers a software maintenance agreement to correct software defects after expiry of the warranty period.
13.7
KiM GmbH reserves the right to change, further develop, improve or replace the programs with new developments. KiM GmbH is willing, but not obliged, to make changes or adjustments. Should the customer desire any changes or adjustments, KiM GmbH is entitled to charge an appropriate fee.
14.1
The customer undertakes to inform KiM GmbH immediately of any third-party claims of property rights with regard to the delivered software, and to leave the legal defense to KiM GmbH at its own expense. KiM GmbH is entitled to necessary software changes at its own expense, even for delivered and paid goods, due to the protection claims of third parties.
15.1
The client is not entitled to assign claims arising from contracts concluded with KiM GmbH, or otherwise transfer rights or obligations arising from contracts concluded with KiM GmbH to third parties, in whole or in part, without the consent of KiM GmbH. This also applies to warranty claims.
16.1
The customer authorizes KiM GmbH to process, store, and evaluate their personal data received in connection with the business relationship in accordance with the German Federal Data Protection Act (§ 26 BDSG).
17.1
The customer undertakes to maintain secrecy for an unlimited period of time with regard to all information, documents, business and trade secrets originating from KiM GmbH, or which have become known or otherwise accessible in connection with the contract between the customer and KiM GmbH. These shall not be recorded, passed on or otherwise exploited, unless necessary to achieve the contract and the purpose. Excluded from this is state-of-the-art information that is otherwise generally accessible, or possessed by the customer, or otherwise legitimately obtained from third parties. The customer is obliged to take appropriate measures to ensure that their employees, agents and other vicarious agents, their independent subcontractors or suppliers, comply with the above confidentiality agreement, provided that the information, documents, business and trade secrets become accessible to them while working for the customer.
17.2
For each case of culpable violation of the above obligations, the customer owes KiM GmbH a contractual penalty of 10% of the contract amount. In the event of an infringement, fault shall be presumed unless the customer provides evidence that the infringement was not culpable. KiM GmbH shall remain entitled to assert claims for damages in excess thereof.
18.1
The use of the programs is limited to the legal entity that has received the end-user license agreement.
18.2
Use of the programs is limited to the application package of KiM GmbH and the business purposes of the end user or their representatives, contractual partners, outsourcing partners, customers and suppliers subject to the above provisions in 17.
18.3
CADClick® or its licensor reserve all proprietary and intellectual property rights in the programs. It is not permitted to remove or change any copyright notices.
18.4
Transfer of the programs, or the use or rights to them, to third parties is not permitted.
Provisions of this contact that are or become invalid do notaffect the remaining provisions. The affected provision shall be replaced by aneffective provision which comes as close as possible to the intended purpose.
Special terms and conditions for root servers, managedservers, Windows servers and virtual servers
1.1
KiM GmbH’s General Terms of Business apply in addition to special terms of business for root servers, managed servers, Windows servers and virtual servers.
KiM GmbH provides the customer with storage space on a server reserved exclusively for the customer (dedicated server). If the contract object is a virtual server storage space will be provided by KiM GmbH on server hardware not exclusively intended for the customer (non-dedicated server).
The server functions granted to the customer will be managed by software. The customer is not entitled to certain usage shares of the CPU and RAM performance. If the object of the contract is a root server or dedicated server KiM GmbH will provide the customer with storage space on server hardware reserved exclusively for the customer.
1.2
KiM GmbH is obliged to provide the server with a basic configuration and to enable the connection of the server to the network.
Unless otherwise agreed, the contract shall be valid for a term of 12 months.
If the contract is concluded for a specific period of time or if a minimum contract period has been agreed with the customer, the contract shall be extended by one year, provided that it is not terminated with a notice period of three months to the end of the period or the end of the minimum contract period. During the extension period, the contract can be terminated with a notice period of three months to the end of the extension period.
For contracts with a term or a minimum term of up to twelve months, KiM GmbH is entitled to terminate the contract with a notice period of three months to the end of the month. This also applies if the contract is extended for a specific period of time.
A contractual relationship existing for an indefinite period of time can be terminated by either party without reasons by giving three months’ notice to the end of the month.
3.1
Notwithstanding the General Terms and Conditions for KiM GmbH WebHosting, the use-independent compensation for root servers, managed servers, and Windows servers is to be paid half-yearly in advance. The use-related compensation is invoiced every half year.
3.2
If and to the extent that support claimed by the customer is demonstrably necessary due to a deficient performance by KiM GmbH, KiM GmbH shall render this service free of charge. If not, the customer is obligated to compensate KiM GmbH for the additional support according to the hourly rates listed in the price list per hour of technician work commenced.
4.1
KiM GmbH may adjust at its own discretion the compensation for maintenance or software lease with a notice period of two months, effective from January 1 of the subsequent year, by written declaration to the customer, in compliance with the following principles:
4.2
Changes of compensation by KiM GmbH shall not exceed the extent of change of the index mentioned in 6.3 below (scope of change). The first adjustment of compensation shall be based on the index development between the index published at the time of the contract conclusion and the index published at the time of the adjustment declaration. If such an adjustment has taken place already, the scope is defined by the index development between the latest index published at the time of the previous adjustment declaration and the latest index published at the time of the new adjustment declaration.
4.3
The index of average gross monthly salary of full-time employees in Germany for services in information technology (quarterly figures published by the Federal Statistical Office in Fachserie 16, Reihe 2.4, Gruppe J62) is to be used to determine the scope of the amendment. Should this index no longer be published, the index published by the Federal Statistical Office applies which most closely reflects the development of average gross monthly salary in the aforementioned sector of economy.
