General terms and conditions for work and services of Silicium Consulting GmbH
a) These general terms and conditions (TCG) of Silicium Consulting GmbH (hereinafter referred to as "Silicium") apply to all business transactions (§ 14 BGB), legal entities under public law and public law
b) For all deliveries and services by Silicium, these General Terms and Conditions apply exclusively in their current version. They also apply to all future business relationships, even if their validity is not expressly pointed out again.
c) Deviating or additional agreements, in particular the customer's terms and conditions, only become part of the contract if Silicium has confirmed and recognized them in writing. The silence of silicon does not constitute consent. Counter-confirmations by the customer with deviating conditions are hereby provided
§2 subject matter of the contract
a) The subject of these conditions is the provision of work and services by silicon. The details of the service provision, such as the object and scope of the service and the remuneration to be paid for the services, are agreed in one by the parties.
b) All offers from Silicium are non-binding, unless otherwise expressly stated in the offer.
c) All orders and agreements are only legally binding if they are confirmed in writing by Silicium and are only binding to the extent specified in the order confirmation.
a) Silicium is solely responsible for organizing the provision of services and the right to issue instructions to its employees. This also applies if the services are provided on the customer's premises.
b) En el caso de los servicios, Silicium no asume ninguna responsabilidad por un resultado de desempeño específico; esto recae únicamente en el cliente.
c) Delivery and service dates specified by Silicium are only considered binding if they have been designated as binding by Silicium in writing.
d) Corrections and additions that prove to be necessary up to the acceptance of the agreed service due to organizational and program technical deficiencies for which Silicium is responsible, will be carried out by Silicium free of charge.
e) Program carriers, documentation and service descriptions are dispatched at the expense and risk of the customer. Insurance is only provided at the request and expense of the customer.
f) In cases of force majeure, the contractual obligations of both parties are suspended. The dates and deadlines for the fulfillment of the contractual obligations are postponed accordingly. Force majeure circumstances are circumstances that are not under the control of the contracting parties, as well as unforeseen events such as war, raw material or energy shortages, strikes, official orders, epidemics, pandemics, accidents, operational disruptions and delivery deadlines by upstream suppliers, provided this delay in delivery is due to reasons of force majeure caused. If the hindrance is not only of temporary duration, Silicium is entitled to terminate the contract due to the not yet fulfilled part of the contract and to invoice the services provided so far.
g) A liability of Silicium for the aforementioned delivery delays or a contract termination resulting therefrom is excluded.
a) Maintenance contracts relate exclusively to the contractual software and are carried out exclusively by sending program data carriers. The services to be covered by a flat-rate maintenance fee include updating the software, in particular if this is due to essential requirements of the customer, troubleshooting, insofar as these can be reconstructed by the customer on the basis of the description, and telephone advice on questions of the use or application of the Software product.
a) Wartungsverträge beziehen sich ausschließlich auf die vertragsgegenständliche Software und erfolgt ausschließlich durch Übersendung von Programmdatenträgern. Zu den pauschal durch Wartungsgebühr abzugeltenden Leistungen gehören die Aktualisierung der Software, insbesondere, wenn diese durch wesentliche Anforderungen des Kunden bedingt sind, die Fehlerbeseitigung, soweit diese aufgrund der Beschreibung durch den Kunden rekonstruierbar sind sowie die telefonische Beratung in Fragen des Einsatzes oder der Anwendung des Softwareproduktes.
§5 Delivery date / Partial deliveries
a) Binding delivery dates must be agreed in writing. The agreed delivery period begins with the date of the order confirmation. The deadline is met if the delivery item is dispatched before the deadline has expired. If Silicium agrees to subsequent changes to the delivery, the delivery period begins again.
b) The delivery period may be extended by the time until the customer has provided Silicium with the information, documents or materials necessary for the execution of the order and until Silicium has received a deposit, if this has been agreed
c) Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed information or documents made available are not the responsibility of Silicium and cannot lead to a delay on the part of Silicium. The customer bears the resulting additional costs.
d) All agreed delivery times apply subject to correct and timely delivery to our customers if Silicium is not responsible for the lack of availability.
e) If Silicium is responsible for non-compliance with bindingly agreed deadlines and dates or is in default, the customer's claim for compensation for damage caused by default is limited to a maximum of 5% of the invoice value of the deliveries and services affected by the default. Any further claims are excluded, unless the delay is due to intent or gross negligence on the part of Silicium or its vicarious agents or legal representatives
f) In the case of orders that comprise several units or programs, Silicium is entitled to carry out partial deliveries and to issue partial invoices, provided this is reasonable for the customer.
§6 Service changes
a) If the customer suggests changes to the agreed services during the provision of services, Silicium will inform the customer as soon as possible whether the change is possible and what effects this will have on the contract, in particular on deadlines and the agreed remuneration.
b) If the change request requires a detailed examination by Silicium, Silicium shall inform the customer about the estimated duration and costs of this detailed examination, the preliminary assessment of the implementation prospects and, if available, the approximate effects on the contract, in particular on deadlines and the agreed remuneration.
c) Deviating or additional agreements, in particular the customer's terms and conditions, only become part of the contract if Silicium has confirmed and recognized them in writing. The silence of silicon does not constitute consent. Counter-confirmations by the customer with deviating conditions are hereby expressly rejected by Silicium.
§7 Work results
a) Work results are all works individually created by Silicium for the customer as well as the associated draft versions. With full payment of the agreed remuneration, the customer receives a non-exclusive, unlimited period of time for work results that can be protected by copyright
b) The customer is obliged to refrain from passing on the work results or copies derived therefrom to third parties, whether for a fee or free of charge, without the written consent of Silicium.
c) The customer may only use the work results for the purpose of handling his own business transactions. Unless otherwise agreed, the customer is not entitled to sublicensing or commercial leasing without the prior written consent of Silicium. Any passing on, even in the course of the liquidation of the company or bankruptcy, but also the short-term transfer for the production of reproductions, entails claims for damages, in which case full satisfaction is to be given.
d) Regardless of the type of granting of rights, Silicium remains entitled: (i) to create comparable work results with the same functionalities and (ii) that the know-how obtained during the provision of the service can continue without restriction
§8 Remuneration / Due date
a) For the services of Silicium, the remuneration mentioned in the offer, otherwise the remuneration shown in the current price list of Silicium plus sales tax, is due for payment.
b) Insofar as a remuneration based on expenditure has been agreed, Silicium will submit two invoices to the customer per month and a list of the hours or days worked for the respective previous service period and will invoice them. If remuneration at a fixed price has been agreed, the remuneration is due in accordance with a separately agreed payment plan.
c) The prices quoted are ex-Silicium's registered office or location. The costs of program carriers (e.g. magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees will be invoiced separately.
d) The travel costs will be billed to the customer separately according to the applicable rates. Travel times are counted as working time.
e) All invoices from Silicium are to be paid cashlessly at the latest 7 days after the invoice date and due date without deduction to a bank account specified by Silicium. Interest on arrears will be charged at 9% p.y
f) The customer is only entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or have been recognized by Silicium. The customer is only authorized to exercise the right of retention if his counterclaim is based on the same contractual relationship.
§9 Customer's duty to cooperate
a) The customer has to support Silicium in the fulfillment of its contractual obligations through appropriate cooperation. In particular, he will provide Silicium with the information and data required for this free of charge and enable Silicium employees to access his business premises to the extent required during his business hours.
b) The establishment of a sufficiently dimensioned hardware and software environment for software is the sole responsibility of the customer.
c) Identification of the work results, in particular copyright notices, brands, serial numbers or the like, may not be removed or changed. The customer agrees to his name being passed on as a reference.
d) The customer agrees that the programs commissioned by him will be included in the silicon program library for general use by the Silicium sales organization in return for making his programs more economical and cost-effective for him through the use of other experiences and documents could be developed than would have been the case without the use of such aids.
e) If the customer does not meet his obligations to cooperate according to this section 9 and silicon is prevented from providing its services as a result, the agreed dates will be postponed. In this case, Silicium is entitled to assert any damage caused by delay, unless the customer is not responsible for this.
§10 Liability for material defects for work
a) Claims for defects do not exist if the service provided is suitable for the normal or normal use required by the contract and has a quality that is customary for items of the same type and which the customer can expect depending on the type of item. Silicium is only responsible for a certain quality in terms of suitability or intended use if this has been expressly agreed; Otherwise, the risk of suitability and use rests exclusively with the customer.
b) The warranty period is 12 months beginning with the date of acceptance. The customer's warranty claims become statute-barred after this warranty period has expired. Notwithstanding this, the statutory warranty period applies insofar as silicon is liable in accordance with Section 10. A guarantee is only granted if it has been expressly designated as such
c) The customer must carry out the acceptance test and draw up a written acceptance report within two weeks of receipt of the written acceptance request from silicon and provision of the service. Within this period, the customer can check the performance for its conformity with the contract and report any defects. In the event of a complaint, Silicium will examine it and remedy the defect.
d) The services are deemed to have been accepted if the customer does not refuse acceptance in writing within two weeks of notification of readiness for acceptance and provision of the service due to defects or if the customer uses the service in whole or in part, with the exception of use within the scope of the acceptance test. Insignificant defects do not entitle to refuse acceptance.
e) Silicium is entitled to provide self-contained partial services for acceptance.
f) Defects in the work performance will be remedied by Silicium within a reasonable period of time during the warranty period (supplementary performance). Silicium can choose to do this by eliminating the defect or by delivering a service free of defects or by showing a possibility of circumventing the defect, the latter insofar as this is reasonable for the customer, taking into account the effects of the defect and the circumstances of the circumvention solution shown.
g) In the case of a proven defect in the contractual services, the customer's warranty rights are limited to the right of withdrawal and reduction in price. The exercise of these rights is only permissible if silicon has been given sufficient opportunity to remedy the defect and this has finally failed or if silicon refuses to remedy the defect or the removal of the defect is unreasonable for the customer. A right of withdrawal does not exist in the case of insignificant defects. There is no right of the customer to do it himself.
h) Silicium guarantees during the warranty period that the work performed at the time of transfer of risk does not infringe any third party rights. In the event that, in the opinion of Silicium or a third party, the work results violate the rights of third parties, Silicium is entitled, taking due account of the interests of the customer, at its own discretion to replace or change the work results while maintaining the agreed functionalities in order to add to the claimed or fix suspected legal infringement.
i) Silicium does not accept any liability for errors, malfunctions or damage caused by improper operation, the use of unsuitable organizational aids and data storage media, insofar as these are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage.
j) For programs that are subsequently changed by the customer's own programmers or by third parties, there is no warranty from Silicium. Silicium is also not liable for errors or damage that can be traced back to errors in the operating system, development tools, third-party programs or programs installed subsequently.
k) Claims by the customer for damages or reimbursement of wasted expenses only exist in accordance with Section 10 and are otherwise excluded.
§10 Other liability
a) Unless otherwise stated below, other and further claims by the customer against silicon are excluded. This applies in particular to claims for damages due to a breach of obligations arising from the contractual relationship and tort, as well as claims for reimbursement of expenses and claims for compensation for other direct or indirect damage - including accompanying or consequential damage, regardless of the legal reason. Above all, Silicium is not liable for lost profit or other financial losses of the customer.
b) The above limitations of liability do not apply insofar as liability is mandatory, e.g. according to the Product Liability Act, in cases of willful intent or gross negligence, due to injury to life, limb or health, in the case of the assumption of express guarantees and assured properties, because of the Violation of essential contractual obligations.
c) In the case of simple negligence, Silicium is only liable for damage resulting from the breach of an essential contractual obligation. Essential contractual obligations are obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and which the customer can rely on to be observed. The claim for damages due to the breach of essential contractual obligations is limited to the contract-typical, foreseeable damage, unless there is intent or gross negligence or liability is due to injury to life, limb or health.
d) Se debe tener en cuenta la negligencia contributiva por parte del cliente.
e) Soweit dem Kunden nach dieser Ziffer 10 Schadensersatzansprüche zustehen, verjähren diese mit Ablauf der für Sachmängelansprüche geltenden Verjährungsfrist gemäß Ziffer 9 (b). Dieses gilt nicht, soweit das Gesetz längere Fristen vorschreibt.
a) Sofern bei Dienstleistungen keine feste Laufzeit vereinbart wurde, kann der Vertrag von jeder Partei mit einer Frist von drei Monaten zum Ende eines Kalenderjahres gekündigt werden. Das Kündigungsrecht gemäß § 627 BGB ist ausgeschlossen.
b) Der Werkvertrag kann jederzeit mit einer Frist von 2 Wochen zum Monatesende gekündigt werden. Die Kündigung von Verträgen aus wichtigem Grund ist jederzeit möglich.
c) In den Fällen der Kündigung nach Ziffer 11. b) hat der Kunde die vereinbarte Vergütung abzüglich der anteiligen Vergütung für den vereinbarten Leistungsumfang, der durch die Kündigung erspart wurde, zu entrichten. Zusätzlich besteht ein Anspruch von Silicium auf Vergütung der Leistungen und Aufwendungen, die im Zusammenhang mit der Kündigung auch im Verhältnis von Silicium zu Dritten entstanden sind.
d) Ist die Kündigung aus Gründen, die von Silicium zu vertreten sind, erfolgt, besteht ein Vergütungsanspruch von Silicium für die bis dahin erbrachte Leistungen nur, soweit diese für den Kunden nutzbar sind.
e) The termination must be made in writing.
f) After the contract has expired, the program must be deleted from all storage devices without further request and the program data carrier and manuals must be sent back to Silicium.
§12 Data protection
a) Silicium may collect, process and use personal data of the customer in accordance with the applicable statutory data protection regulations, insofar as this is necessary for the proper execution of this contract. Silicium will comply with the applicable data protection regulations and take suitable technical and organizational measures to protect the data.
§13 Final Disclosure
a) Changes and additions to these conditions must be made in writing. This also applies to the amendment or cancellation of this written form clause.
b) The business relationships are exclusively subject to the law of the Federal Republic of Germany. The UN sales law does not apply.
c) The exclusive place of jurisdiction is the headquarters of Silicium. However, Silicium is entitled, at its option, to take legal action at the customer's general place of jurisdiction.
As of 09/2021