BEWOTEC Terms & Conditions
Note:
This English version of the Terms & Conditions is provided for informational purposes only.
The legally binding version of this document is the original German version (“Allgemeine Geschäftsbedingungen”).
General Terms & Conditions
(AGB Version 2.03)
BEWOTEC Terms & Conditions – an overview of our general contractual provisions.
§ 1 Scope
Unless the Special Conditions for Service Contracts, Standard Software, Individual Software and/or Software Licence Agreements contain deviating provisions, the following General Terms & Conditions apply.
The General Terms & Conditions (GTC) of BEWOTEC Software Entwicklungs- und Vertriebs-GmbH (hereinafter “BEWOTEC”) apply to all one-time and ongoing services performed by BEWOTEC and its legal successors and/or entities resulting from mergers, within the scope of its entire business activities and irrespective of contractual classification.
These Terms & Conditions also apply to all future business relationships without requiring renewed explicit inclusion. Accordingly, BEWOTEC’s Terms & Conditions (including the Special Conditions) always form the basis of its activities.
By the time BEWOTEC’s services are used for the first time, these Terms & Conditions in their current version — available at www.bewotec.de/agb.html — are deemed accepted. Conflicting terms of the customer are generally not recognised. Deviations from these GTC are only valid if and to the extent that they are acknowledged by BEWOTEC in writing.
No verbal side agreements exist. Individual agreements require written confirmation by BEWOTEC’s management.
§ 2 Definitions
Installation of Hardware:
Unpacking and setting up the hardware, connecting it to the customer’s power supply and performing a device test.
Standby Time:
Periods during which BEWOTEC accepts (error) notifications (usually BEWOTEC’s business hours).
Data Backup:
Proper data backup includes all technical and/or organisational measures to ensure the availability, integrity and consistency of IT systems, including the data, programs and procedures stored on and used for processing purposes on these IT systems.
Proper data backup means that the measures taken — depending on the sensitivity of the data — enable immediate or short-term restoration of the condition of systems, data, programs or procedures after impairment of availability, integrity or consistency caused by a damaging event; these measures include at least the creation and testing of the restorability of copies of software, data and procedures in defined cycles and generations.
Data Loss:
Loss (deletion) or loss of integrity and consistency of data.
Replacement Delivery:
Provision of hardware and/or software by BEWOTEC or a vicarious agent to fulfil contractual obligations.
Warranty Period:
This refers to the statutory limitation period applicable at the time of conclusion of the contract.
Hardware:
Devices or machines, including optional additional components according to the manufacturer’s specification, listed in the contract; such devices or machines are generally specified by the manufacturer using order numbers (type designation, possibly supplemented by model designation).
Maintenance:
Measures to preserve and restore the target condition, as well as to determine and assess the actual condition.
Material Costs:
BEWOTEC’s expenses for the use and consumption of raw materials, supplies and operating materials, as well as other items used in the provision of services.
Incidental Costs:
Expenses incurred by BEWOTEC that are necessary for the provision of deliveries and services. They are not included in the agreed remuneration and are neither travel expenses nor material costs.
Response Time:
The period within which BEWOTEC must begin maintenance work. It starts upon receipt of the fault report within the agreed service times and runs exclusively during the agreed service times.
Travel Costs:
BEWOTEC’s expenses for travel to and from the agreed place of performance, insofar as it differs from the company’s registered office, which are generally not included in personnel deployment costs. Expenses may include: travel costs, accommodation costs, incidental travel expenses, etc.
Written Form:
In accordance with §§ 126, 126b, 127 of the German Civil Code (BGB).
Proprietary Rights:
In particular industrial property rights and copyrights.
Standard Software
Software (programs, program modules, tools, etc.) developed for the needs of a large number of customers on the market and not specifically developed by BEWOTEC for the customer, including the associated documentation.
Pre-Installation:
Pre-installation of (standard) software on specific hardware prior to delivery.
Manual:
A description of the delivered products provided to the customer by BEWOTEC, in printed or electronic form at BEWOTEC’s discretion. BEWOTEC supplies the version current at the time of contract conclusion in the contractually agreed quantity. Any versions beyond this and/or more up-to-date versions must always be requested separately by the customer and paid for.
§ 3 Subject Matter of the Contract
The subject matter of the contract is the type and scope of the agreed deliveries and services of BEWOTEC, which arise exclusively from the respective individual contract as well as from these General Terms & Conditions including the Special Conditions.
BEWOTEC provides the contractual services in accordance with the recognised rules of technology and the agreed service content. Unless expressly agreed otherwise, BEWOTEC does not owe any success beyond the contractual performance.
BEWOTEC is entitled at any time to use subcontractors or vicarious agents for the fulfilment of its contractual obligations.
Unless expressly agreed otherwise, BEWOTEC is not obliged to check or maintain the customer’s or third-party IT infrastructure, to install hardware or software, to advise on hardware or software, to configure hardware or software, to train the customer’s employees, to adapt software, to create individual software or to carry out data migration. Such services are only owed if they are expressly agreed as part of an order confirmation or contract.
BEWOTEC may modify contractual services insofar as the modification is reasonable for the customer, taking BEWOTEC’s interests into account.
The customer shall support BEWOTEC in the performance of contractual services to the extent required and shall provide all necessary cooperation services in a timely and complete manner. If the customer fails to meet his cooperation obligations, BEWOTEC shall not be liable for any resulting delays or defects.
Unless expressly agreed otherwise, deadlines, dates and delivery periods are non-binding. If binding deadlines are agreed and BEWOTEC is prevented from meeting them through no fault of its own, deadlines shall be extended accordingly. This applies in particular in cases of force majeure, labour disputes, operational disruptions, delays caused by suppliers or subcontractors or other unforeseeable events beyond BEWOTEC’s control.
Services that BEWOTEC provides beyond the agreed contractual scope shall be remunerated separately at the applicable BEWOTEC rates.
§ 4 Conclusion of Contract
A contract is concluded exclusively through a written order confirmation issued by BEWOTEC.
Verbal agreements, side agreements or promises only become legally binding once they are confirmed in writing by BEWOTEC.
Offers made by BEWOTEC are non-binding unless expressly designated as binding.
If the customer places an order, this constitutes a binding contractual offer.
BEWOTEC may accept this offer within 14 days by issuing a written order confirmation.
If BEWOTEC does not accept the customer’s offer in writing within the aforementioned period, no contract is formed.
Employees of BEWOTEC are not authorised to make commitments that go beyond the content of the written order confirmation.
§ 5 Settlement
If the customer makes advance payments, these shall be allocated in accordance with §§ 366 (2) and 367 of the German Civil Code (BGB).
If the customer specifies a different allocation, BEWOTEC may refuse the payment.
§ 6 Retention of Title
The delivered goods remain the property of BEWOTEC until all claims arising from the existing business relationship with the customer have been settled in full.
If the customer is in default of payment, BEWOTEC is entitled to demand the return of the goods subject to retention of title.
The customer shall treat the goods subject to retention of title with care and insure them appropriately at replacement value against fire, water damage and theft at their own expense.
In the event of attachment or other interventions by third parties, the customer must notify BEWOTEC immediately in writing.
The customer is entitled to resell the goods subject to retention of title in the ordinary course of business.
However, the customer hereby assigns to BEWOTEC all claims in the amount of the invoice value that accrue to the customer from the resale against third parties.
The customer remains authorised to collect these claims even after assignment.
BEWOTEC’s authority to collect the claims itself remains unaffected; however, BEWOTEC will not collect the claims as long as the customer meets their payment obligations.
If the goods subject to retention of title are processed or transformed by the customer, the retention of title extends to the new item.
If processing takes place together with goods not owned by BEWOTEC, BEWOTEC acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed items at the time of processing.
§ 7 Default
In the event of payment default and/or deferral, interest in the amount of eight percent above the current base interest rate is owed. The interest rate shall be set higher or lower if BEWOTEC proves a higher burden or the customer proves a lower burden. The assertion of further damages caused by delay remains unaffected. For each direct debit that is not honoured or returned, the customer must reimburse BEWOTEC in full for the costs incurred. Instead of substantiating damage or expenses, BEWOTEC may demand a flat fee of € 7.50 for each such case. The customer is free to demonstrate that less damage or no damage has occurred.
If a direct debit authorisation has been granted, the customer undertakes to notify BEWOTEC immediately of any change in their bank account details.
Objections to BEWOTEC’s invoices must be raised immediately upon receipt. Failure to raise objections in due time shall be deemed approval, unless the incorrectness of the invoice is obvious or significant (more than 5% of the order volume). The parties agree that an objection is generally not raised in due time if more than five working days have passed after receipt of the invoice. The parties assume that invoices sent within Germany generally reach the recipient three working days after dispatch. The customer remains entitled to refute this presumption of receipt.
Services are invoiced at time intervals determined by BEWOTEC at its reasonable discretion. All amounts are exclusive of the statutory VAT applicable at the time. If the customer is not subject to VAT, they must inform BEWOTEC of their VAT ID (UID) when placing the order. If the customer violates this obligation, they must bear the interest damage resulting from the delay in accordance with the above-mentioned default interest rate.
In the event of payment default regarding a significant part of the invoice amount, or if BEWOTEC’s payment claim is endangered due to a deterioration of the customer’s financial circumstances within the meaning of § 321 BGB, BEWOTEC is entitled to declare all outstanding claims immediately due and payable. In the case of an instalment agreement, the customer is deemed to be in default with a significant part of the invoice amount if they are in arrears with two due instalments.
§ 8 Prohibition of Assignment
The customer may assign rights arising from the respective contractual relationship to third parties only with the prior written consent of BEWOTEC, subject to § 6.
§ 9 Applicability of DIN Standards
If disagreements arise between BEWOTEC and the customer during the execution of this contractual relationship regarding the content of IT-related terms and symbols, quality requirements, formatting requirements or similar matters, compliance with the respective DIN standards applicable at the time of contract conclusion shall be deemed agreed.
§ 10 Hotline Support
The customer acquires the right to telephone hotline support only by concluding a corresponding service agreement.
The Special Conditions for BEWOTEC service contracts apply in addition.
§ 11 Activation or Licence Code
The customer receives from BEWOTEC a licensing code (“.lic file”) for the activation of the software and/or the use of other (service) offerings of BEWOTEC. In the event of loss or destruction of this file, new additional licences for all programs and/or other (service) offerings authorised via this file must be purchased by the customer at the applicable prices. Any technical modification of the “.lic file” as well as of the remaining BEWOTEC software, in particular to run it without a licensing code—for example for pirated copies—is prohibited.
Culpable violations entitle BEWOTEC to impose a contractual penalty on the customer. Subject to judicial review of appropriateness, the penalty amounts to at least 50% of the order value.
§ 12 Intellectual Property Rights
The delivery of licensed software is carried out in accordance with — or in addition to — separately concluded agreements under the software licence conditions specified therein. All present and future copyrights and/or industrial property rights to the programs sold by BEWOTEC and to all programs, program components or documents derived therefrom, including cost estimates, drawings and other parts of the offer, remain with BEWOTEC. The customer is liable to BEWOTEC for all damages resulting from the violation of the aforementioned obligations.
In each case of infringement, BEWOTEC may assert a contractual penalty amounting to at least 5% of the purchase price and/or the licence fee for the respective complete program, without BEWOTEC having to prove the exact amount of damage. All programs, software and manuals delivered by BEWOTEC are protected by copyright and/or related rights. The granting of any usage rights requires BEWOTEC’s express written approval.
If a third party asserts claims against the customer on the grounds that software delivered by BEWOTEC infringes intellectual property rights, and if the use of the software is thereby impaired or prohibited, BEWOTEC shall be liable as follows: BEWOTEC will, at its discretion and at its own expense, either modify or replace the software so that it no longer infringes the intellectual property right but still essentially corresponds to the agreed functional and performance characteristics in a manner reasonable for the customer, or indemnify the customer from licence fees for the use of the software payable to the intellectual property right holder or to third parties. If BEWOTEC is unable to achieve this on reasonable terms, BEWOTEC shall take back the software against reimbursement of the price paid by the customer, minus an amount reflecting the period of use. In this case, the customer is obliged to return the software to BEWOTEC.
Prerequisites for BEWOTEC’s liability are that the customer notifies BEWOTEC immediately of claims by third parties, does not acknowledge the alleged infringement and leaves any legal dispute — including potential out-of-court settlements — to BEWOTEC or conducts it only in agreement with BEWOTEC. Necessary court and legal fees incurred by the customer in defending the claim shall be borne by BEWOTEC.
If the customer ceases to use the software for reasons of damage mitigation or other important reasons, they must inform the third party that discontinuation of use does not constitute an acknowledgement of the alleged infringement. If the customer is responsible for the infringement of intellectual property rights, claims against BEWOTEC are excluded.
Further claims by the customer arising from infringements of third-party intellectual property rights are excluded. This exclusion does not apply in cases of intent or gross negligence.
§ 13 Storage of Business Data, Confidentiality
Order processing within BEWOTEC is carried out using automated data processing.
The customer consents to the processing of the data disclosed to BEWOTEC within the framework of contractual relations and required for order execution.
The customer also agrees that BEWOTEC may use the data obtained from the business relationship with the customer for BEWOTEC’s own business purposes within BEWOTEC, in accordance with data protection law.
The invoice (or delivery note) is deemed a notification within the meaning of §§ 19a, 33 of the German Federal Data Protection Act (BDSG).
Unless expressly agreed otherwise, information provided by BEWOTEC in connection with orders shall not be regarded as confidential.
§ 14 Delivery
Delivery dates or deadlines are generally non-binding. A binding delivery date is deemed agreed in cases of doubt if the purchase order contains the note “fixed”, “precise”, “exact” or “at the latest”. As a general rule, the delivery date is agreed based on BEWOTEC’s anticipated performance capacity and is subject to unforeseen and unavoidable circumstances and obstacles, regardless of whether these occur at BEWOTEC or at the manufacturer or its subcontractors, insofar as such circumstances make delivery at the agreed time unreasonable for BEWOTEC. If BEWOTEC is more than two weeks in delay with delivery, the customer may withdraw from the contract after setting a written and reasonable grace period. If the delivery delay lasts longer than two weeks, BEWOTEC is likewise entitled to withdraw from the contract in whole or in part. The customer shall be notified immediately, and any consideration already provided by the customer shall be refunded.
For software developments or enhancements, these periods are extended to six weeks each.
Delivery and performance delays due to force majeure and/or due to events that substantially impair or make delivery impossible for BEWOTEC — particularly strikes, lockouts, official orders, but also a lack of cooperation by the customer, etc. — even if such events occur at BEWOTEC’s suppliers or their subcontractors, are not attributable to BEWOTEC, even when deadlines and dates have been agreed as binding.
Furthermore, such circumstances entitle BEWOTEC to postpone delivery by the duration of the hindrance plus a reasonable restart period or to withdraw from the contract in whole or in part with respect to the unfulfilled part.
BEWOTEC is entitled to deliver contract products that deviate from the customer’s order to the extent customary in trade or commerce, provided that the modification and/or deviation is reasonable for the customer considering their interests.
Compliance with delivery and performance obligations by BEWOTEC presupposes the timely and proper fulfilment of the customer’s obligations. BEWOTEC is entitled at any time to make partial deliveries and partial services and to invoice them separately.
If the customer is in default of acceptance, BEWOTEC is entitled to claim compensation for the resulting damage; upon commencement of the default of acceptance, the risk of accidental deterioration and accidental loss passes to the customer.
§ 15 Exclusion and/or Limitation of Liability
BEWOTEC’s liability for negligent breaches of duty is excluded, unless damage relates to injury to life, body or health, or guarantees are affected, or claims under the Product Liability Act are concerned.
Liability for breaches of obligations whose fulfilment is essential for the proper performance of the contract (cardinal obligations) and upon which the customer regularly relies remains unaffected.
In cases of damage to property and financial losses, liability is limited to the typical and foreseeable damage under the contract.
The foregoing also applies to breaches of duty by BEWOTEC’s vicarious agents and/or assistants.
§ 16 Referral to Liability Insurance
BEWOTEC maintains liability insurance to cover the typical and foreseeable damages for which BEWOTEC is liable under the foregoing principles. If the customer proves such damage, BEWOTEC will assign its coverage claim against the liability insurance to the customer in fulfilment of the customer’s compensation claim.
As long as the customer has not taken legal action against BEWOTEC’s liability insurer, BEWOTEC shall not be liable.
This does not apply if referring the customer to claims against the liability insurer would place the customer under unreasonable costs and/or risks.
In such case, BEWOTEC shall be directly liable for the typical and foreseeable damage under the contract.
§ 17 Limitation Period for Legal Action
If a claim for damages is not asserted in court within three months — beginning with the final rejection of the compensation claim by BEWOTEC — it shall expire.
In cases where the customer is referred to the liability insurance, the limitation period shall not begin to run until legal action against the liability insurer has been taken unsuccessfully.
§ 18 General Duty to Notify and Cooperate
The customer is obliged to notify BEWOTEC immediately in writing of any defects, damage and/or disruptions that are recognizable to them.
The parties agree that a notification is generally not deemed immediate if more than three working days have passed between the discovery of the defect, damage and/or disruption and the receipt of the notification.
The obligation to notify does not apply if the defect, damage and/or disruption is obvious to BEWOTEC.
If the customer becomes aware of circumstances that at least give rise to the suspicion of unauthorized third-party access to BEWOTEC’s servers, this must be reported immediately.
If the customer culpably fails to make such notification, they are obliged to compensate BEWOTEC for the resulting typically foreseeable damage.
To the extent that BEWOTEC was unable to provide remedy due to the customer’s failure to notify, the customer is not entitled to reduce the usage fee and/or to claim damages and/or reimbursement of expenses and/or to terminate the contract extraordinarily without setting a reasonable deadline.
§ 19 Data Loss
In the event of data loss, BEWOTEC shall only be liable for the effort required to restore the data that would have been necessary if the customer had properly backed up the data (i.e. regular and risk-appropriate creation of backup copies).
In cases of slight negligence on the part of BEWOTEC, this liability arises only if the customer had carried out a proper data backup immediately prior to the measure that led to the data loss.
§ 20 Exclusion of Warranty
The customer confirms, in the case of the purchase of used items, that the delivered goods were in perfect condition at the time they were handed over.
In the event of a warranty case — material or legal defect and/or absence of warranted characteristics — BEWOTEC has the right, at its own discretion, to remedy the defect and/or provide a replacement delivery.
The customer’s right to withdraw from the contract and/or to demand a reduction of the price after unsuccessful expiry of the rectification period remains unaffected.
No warranty is provided for services rendered by BEWOTEC or its (commercial) agents that are expressly designated as “courtesy”, “free of charge” or similar, or that could reasonably be understood as such based on the circumstances.
Liability for such courtesy services is governed by §§ 521, 599 of the German Civil Code (BGB).
Liability is excluded in cases of improper handling or excessive use.
§ 21 Transport Damage
The customer must report any transport damage to the carrier immediately and in writing, and must send BEWOTEC a copy of the correspondence.
Unless otherwise agreed, BEWOTEC is entitled — but not obliged — to insure the goods to be shipped against all kinds of transport risks at the customer’s expense.
This, as well as the possible assumption of transport costs, has no effect on the transfer of risk.
§ 22 Set-off / Right of Retention
The customer may only set off claims against BEWOTEC with claims that are undisputed, ready for decision, and/or legally established.
The customer may assert a right of retention — whether under § 273 BGB or § 369 HGB — only for counterclaims arising from the same contractual relationship.
In the event of defects, the customer may withhold payments only to a proportionate extent corresponding to the defect, and only if the defect is clearly evident.
If the customer is in default with a due performance that BEWOTEC is entitled to demand for fulfilment, BEWOTEC has a right of retention upon the occurrence of the default, even without an explicit assertion of such right.
If the customer provides the security permitted by law, the objection shall be deemed not to have been raised.
§ 23 Reservation of the Right to Make Changes
BEWOTEC reserves the right to make changes to the services owed by it that are customary in trade.
Non-customary changes are permissible if they result in an improvement for the customer.
In any case, changes will only be made to an extent that is reasonable for the customer, taking into account BEWOTEC’s interests.
§ 24 Advertising
The customer agrees to being contacted by BEWOTEC regarding products and/or services and/or other information, provided it can be assumed that such contact corresponds to the presumed interest of the customer.
§ 25 Written Form and Entire Agreement Clause
Amendments and/or additions to the contracts shall be made in written form.
§ 26 Change of Contracting Party
BEWOTEC reserves the right to transfer the rights and obligations arising from continuing obligations with the customer to a third party.
If BEWOTEC exercises this right, the customer shall have the right to terminate the contract extraordinarily.
The termination shall only be effective if it is made after BEWOTEC exercises the right and is submitted by registered letter.
§ 27 Contractual Penalty
The customer undertakes not to solicit or hire BEWOTEC employees who have been in contact with the customer for themselves and/or third parties, nor to use their services outside the contractual relationship between the customer and BEWOTEC.
This obligation continues for a period of two years after termination of the contractual relationship.
For each breach of this obligation, the customer shall pay a contractual penalty of € 5,000.
The objection of continuation of offence (“Fortsetzungszusammenhang”) is excluded.
The assertion of further claims for damages remains unaffected.
The customer retains the right to prove that less or no damage has occurred.
§ 28 Place of Performance
The place of performance is Rösrath.
This also applies to obligations of the customer.
§ 29 Place of Jurisdiction / Applicable Law
The place of jurisdiction is Cologne.
This also applies to legal actions relating to documents, bills of exchange and cheques.
However, BEWOTEC is also entitled to bring action at the customer’s place of business or before courts that are legally competent.
All contractual relationships are subject to German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG / “Wiener Kaufrecht”).
Special Conditions for JACK PLUS / VERA Service Contracts
§ 1 Subject Matter of the Contract
The subject matter of the contract is the maintenance of BEWOTEC software.
It includes the functions listed in the general service description and must be performed on the hardware and operating system specified in the contract.
Individual adaptations of BEWOTEC software or BOL or BOC files are not included.
If the customer desires such or similar services, they must conclude a separate agreement with BEWOTEC subject to additional charges.
Within the framework of BEWOTEC software maintenance, BEWOTEC provides software to the customer for a fee (e.g., updates).
This software is released at irregular intervals at BEWOTEC’s discretion and independently of the agreed payment cycle.
The maintenance of computer hardware is not part of the service agreement.
§ 2 Hotline
The telephone advisory service (“hotline”) is available to the customer during the BEWOTEC hotline hours agreed in the contract.
The customer agrees that this hotline may be reachable under telephone numbers that may result in higher call charges for the customer.
The hotline is generally available only for questions regarding BEWOTEC products and/or products maintained by BEWOTEC.
BEWOTEC is not obliged to answer questions relating to hardware and software from other manufacturers.
Callbacks by BEWOTEC within the scope of hotline support may be invoiced separately to the customer.
Individual adaptations of BEWOTEC programs and/or BOL or BOC files are not covered by the BEWOTEC hotline.
§ 3 Customer Cooperation
The customer shall support BEWOTEC to a reasonable extent in the provision of contractual services.
In particular, the customer shall provide BEWOTEC with the required information and documents fully and in due time.
If the customer knows the name and telephone extension of the responsible employee, the customer shall — in the interest of efficiency — include this information with each written notification.
§ 4 Contract Term and Notice Period
The contract is concluded for an indefinite period, but for at least twelve months, and may be terminated by either contracting party at the end of each calendar year by giving three months’ notice by registered letter.
§ 4a Extraordinary Termination
The right to terminate the contract without notice for good cause remains unaffected.
The parties agree that good cause entitling BEWOTEC to extraordinary termination with three months’ notice to the end of a calendar quarter exists in particular if a module and/or product can no longer be distributed for technical reasons, especially with regard to technological progress.
§ 5 Payment
The applicable flat-rate service fee must be paid by the customer in advance, no later than the third working day of the calendar month preceding the month of use.
Special Conditions for Terminal Server Usage Agreements
The corresponding flat-rate service fee must be paid by the contracting party in advance, no later than the third working day of the calendar month preceding the month of use.
Special Conditions for Terminal Server Usage Agreements
§ 1 Subject Matter
BEWOTEC provides the storage space required for the use of BEWOTEC software solutions on one of its own and/or virtual servers and installs the operating systems necessary for the use of the software, in order to enable the customer to use the software online and to store commercial data.
The uploading of data as well as the installation of the support programs required for use (browser, software for establishing the remote data transmission connection), and/or the procurement of hardware components, are not part of these conditions.
The customer is aware that BEWOTEC does not operate its own telecommunications network and does not provide internet access.
For this reason, BEWOTEC assumes no responsibility for the successful establishment of an internet connection, unless the faulty connection is attributable to BEWOTEC.
§ 2 Use
The customer is granted a simple right of use limited to the term of this agreement.
Unless otherwise agreed, access to BEWOTEC’s own and/or virtual servers is only permitted from authorised computers of the customer.
§ 3 Provision to Third Parties
If the customer allows an unauthorised third party to access the system, the customer is obliged to compensate for the resulting damage.
§ 4 Access Interruptions and Limitation of Liability
BEWOTEC may carry out maintenance work and other technically necessary work on its network and its own servers during usage times.
BEWOTEC shall inform the customer of the commencement of such work at least five working days in advance.
Unscheduled maintenance work shall be announced at least two working days in advance.
If access to BEWOTEC’s servers is interrupted due to technically necessary work and BEWOTEC has not announced this at least ten working days in advance, BEWOTEC is only responsible for the interruption if BEWOTEC is at fault.
§ 5 Availability
The annual availability of BEWOTEC’s own and/or virtual servers is 98.5%.
The total monthly interruption must not exceed four hours.
Not included in availability are:
agreed or announced maintenance work,
incidents due to force majeure,
network failures of other network operators,
and other disruptions caused by third parties that reduce availability and are not attributable to BEWOTEC.
Availability also depends on the agreed availability level.
The rule applies: the higher the availability, the higher the usage fee.
The following availability levels are provided:
Weekday availability between 9:00 and 18:00
Weekday availability between 7:00 and 21:00 and Saturdays between 7:00 and 15:00
Continuous availability
If nothing else is stated in the contract, Level (1) shall apply.
For the purposes of these provisions:
“Weekdays” are calendar days from Monday to Friday, excluding public holidays in the Federal Republic of Germany and the State of North Rhine-Westphalia.
“Saturday” refers to Saturdays excluding such public holidays.
Carnival days (Weiberfastnacht, Karnevalsfreitag, Karnevalssamstag, Rosenmontag, Veilchendienstag) are considered equivalent to public holidays.
Regulations on access restrictions and maintenance work remain unaffected.
§ 6 Data Protection
The customer is aware that the introduction and use of BEWOTEC’s own and/or virtual servers may lead to data being generated about individual work steps of employees, which may constitute control-relevant information within the meaning of § 87 (1) No. 6 of the Works Constitution Act (BetrVG) and may therefore require co-determination.
The customer is also aware that mutual communication may take place in unencrypted form, and therefore waives any claims based on the assertion that unauthorised third parties gained illegal access to electronic communication media.
§ 7 Relationship to Software Licensing and Service Contracts
The use of BEWOTEC’s own and/or virtual servers is only permitted as long as the customer holds a valid licence for the Jack software.
Furthermore, usage requires a valid and duly paid service contract with BEWOTEC, as software updates and support services are not covered by these conditions.
§ 8 Customer Protection and Care Obligations
The customer is obliged to refrain from anything that could cause damage to BEWOTEC’s own and/or virtual servers.
The customer must protect BEWOTEC’s software programs from unauthorised third-party access.
In particular, the customer must keep access data and passwords confidential.
§ 9 Suspension
If the customer violates their duty to notify and/or their protection and care obligations, BEWOTEC is entitled to block access.
BEWOTEC is entitled — in accordance with proportionality and data protection regulations — to withhold the customer’s data and to interrupt the use of the software and/or the data supplied by BEWOTEC (e.g., for CRS or settlement processes), if the customer is in arrears with the payment of the usage fee for two consecutive due dates, or
if, within a period covering more than two due dates, the arrears amount equals the usage fee for two calendar months.
§ 10 Due Date of the Usage Fee
The usage fee must be paid by the customer in advance, no later than the third working day of the calendar month preceding the month of use.
§ 11 Exclusion of Liability
With reference to § 15 of the General Part of the BEWOTEC AGB, the parties agree that liability for initial defects and/or subsequently occurring defects of BEWOTEC’s own and/or virtual servers is fundamentally excluded.
§ 12 Contract Term
Unless otherwise agreed, a contract term of 24 calendar months applies.
If neither the customer nor BEWOTEC terminates the agreement three calendar months before the end of the contract term, the contract is automatically extended by 12 calendar months.
At the end of the term or upon termination of the hosting contract, BEWOTEC shall provide the customer’s data on separate permanent data carriers.
The parties shall agree on a flat fee for this (see price list or contract), plus the applicable VAT.
§ 13 Termination
The right to extraordinary termination for good cause remains unaffected.
The parties agree that good cause entitling BEWOTEC to extraordinary termination exists in particular if:
the customer persistently and significantly violates their protection, care, and/or notification obligations despite a warning from BEWOTEC, or
the customer is in arrears with the usage fee for two consecutive due dates or a substantial part thereof, or
within a period covering more than two due dates, the customer is in arrears with an amount equal to the usage fee for two calendar months, or
the customer becomes insolvent or suffers financial collapse.
Special Conditions for Licensing Agreements for JACK PLUS / VERA
Jack Plus is a computer program developed by BEWOTEC which, in addition to travel agency back-office functions, provides a direct connection to service providers in the tourism industry (computer reservation system – CRS).
§ 1 Subject Matter of the Contract
The following conditions apply to the provision and use of Jack Plus in return for a one-time fee.
They do not apply to other services such as installation, integration, parameter configuration, or adaptation of Jack Plus to the customer’s needs, nor to training measures.
§ 2 Nature and Scope of the Service
BEWOTEC provides Jack Plus to the customer in accordance with the provisions of the contract.
Jack Plus was checked with a current virus scanning program at a reasonable time before delivery to the customer.
BEWOTEC assures that this check revealed no indication of harmful functions in Jack Plus.
Proper data backup is the responsibility of the customer.
Maintaining the functionality of the CRS requires the conclusion of a service contract and the associated receipt of updates to the Jack Plus back-office standard software.
It is therefore pointed out that failure to obtain updates may result in functional impairments of the CRS.
BEWOTEC further notes that the primary subject matter of the contract is the corresponding back-/mid-office system.
Therefore, the use of the back-office standard software remains unaffected by any potential impairment of the CRS.
§ 3 Rights of Use
All rights, in particular copyrights and trademark rights to the software, are held exclusively by BEWOTEC.
Jack Plus is provided to the customer for its intended use.
The scope of the intended use and the nature and extent of the rights of use are determined by the contract.
If no other agreements on usage rights are made in the contract, BEWOTEC grants the customer the following rights:
the non-exclusive right of use,
the right to use the software in any system environment,
the permanent and generally irrevocable right of use.
BEWOTEC does not warrant that the software meets the customer’s requirements and purposes or that it works together with other programs or operating systems selected by the customer, unless expressly stated in the service descriptions.
The customer undertakes to ensure, through appropriate technical and organisational measures, that the intended use of Jack Plus is guaranteed.
The customer is entitled to make one copy of Jack Plus for backup purposes.
This copy must be stored on a removable data carrier and labelled accordingly.
Backup copies required for proper data protection are considered part of the intended use.
If the customer is entitled to transfer the rights of use to a third party and exercises this right, the customer must impose their contractual obligations on the third party.
With the transfer, the customer’s rights of use expire.
All existing copies of Jack Plus must be deleted or returned to BEWOTEC.
However, the customer may retain one copy for verification and archiving purposes if agreed in the contract.
If usage rights are granted only for a system environment defined in the contract, use in another system environment requires BEWOTEC’s consent.
If the defined system environment is not operational, temporary use in another suitable environment is permitted until the disruption is resolved.
The customer undertakes not to convert the supplied version of Jack Plus into another code form through disassembly, reverse engineering, or other measures, unless permitted under copyright law.
BEWOTEC shall inform the customer of any copy and usage restrictions integrated into Jack Plus, insofar as these are known to BEWOTEC.
If the software is used in multiple branches, locations, or offices, this must be reported to BEWOTEC.
A software licence is required for each branch, location, office, or site.
If the software is used at multiple workstations, a network licence is required for each workstation.
This licensing rule also applies when the software is used on the customer’s own or a third-party terminal server and is accessed from multiple workplaces and/or branches, whether via remote desktop connection or another form of remote internet access.
In any case, BEWOTEC is entitled to use ideas, concepts, and procedures relating to information processing that BEWOTEC has acquired alone or jointly with the customer when performing implementation, maintenance, or support services, for the performance of similar work for other customers — provided that these relate to further developed BEWOTEC products.
§ 4 Extraordinary Termination of Usage Rights
If the customer seriously violates the agreed usage rights or the intellectual property rights of the rights holder, BEWOTEC may terminate the usage rights extraordinarily and with immediate effect.
In the event of termination, the customer is obliged to return the original of the Jack Plus standard software affected by the termination, including the documentation, and to delete or return all copies.
At BEWOTEC’s request, the customer shall provide a written declaration confirming the deletion.
The customer is entitled to retain one copy of Jack Plus for verification and archiving purposes if such an agreement has been made.
All other statutory provisions remain unaffected.
§ 5 Transfer of Risk
Risk transfers to the customer as soon as the shipment is handed over to the carrier or any other person designated by BEWOTEC to carry out the shipment, or as soon as the goods leave BEWOTEC’s warehouse for dispatch.
If dispatch becomes impossible without BEWOTEC’s fault, risk transfers to the customer upon separation and provision of the goods for dispatch or upon notification of readiness for dispatch.
These provisions also apply to returns following defect rectification or chargeable service work.
§ 6 Default
In the event of default, the customer may set BEWOTEC a reasonable grace period with the declaration that they will withdraw from the contract in whole or in part or claim damages for non-performance if the deadline expires without result.
The parties agree that a reasonable grace period is generally not less than fifteen working days.
If the customer demands damages for non-performance, BEWOTEC’s liability is limited to 8% of the total contract price.
Claims for lost profits are excluded.
These limitations of liability do not apply in cases of intent or gross negligence by BEWOTEC or its vicarious agents.
§ 7 Warranty
The customer’s warranty claims do not extend to versions of Jack Plus that the customer modifies or that the customer does not use in the contractually agreed system environment, unless the customer proves that such use is not the cause of the reported defect.
A prerequisite for warranty claims is the reproducibility or detectability of the errors.
The customer undertakes to provide BEWOTEC with all information necessary for rectification, in particular to forward error reports immediately in writing and to support BEWOTEC in a timely manner in eliminating defects.
The customer must examine the delivered Jack Plus software without delay.
The duration of the inspection depends on the customer’s technical expertise.
If the customer engages expert assistance, such expert knowledge is attributed to the customer.
Any defects must be reported immediately in writing, including all information known to the customer that could facilitate identification of the defect.
The customer must take all reasonable measures to facilitate the detection of defects and their causes.
The warranty period for defects in rectification services, workarounds, or replacement deliveries also ends with the expiry of the regular warranty period.
If BEWOTEC is contractually obliged to remedy defects, the following applies:
BEWOTEC may remedy the defect by prompt rectification or by replacement delivery, at its discretion.
The customer’s interests will be appropriately considered in the choice of remedy.
The warranty applies only to the latest version of Jack Plus taken over by the customer.
A new version must be accepted by the customer if it serves to prevent or correct defects.
The customer is not required to accept a new version if it deviates significantly from the contractually agreed specifications.
If the customer does not accept the new version on this basis, their other rights shall remain unaffected.
If BEWOTEC does not successfully rectify the defect within a reasonable period, the customer may set a grace period with the declaration that they will reject the rectification after expiry.
After expiry of the grace period, the customer may reduce the payment, withdraw from the contract, or — if the statutory requirements are fulfilled — claim damages.
The customer must exercise this choice within 14 calendar days by declaring it to BEWOTEC.
This claim for damages is limited to 8% of the value of the affected service; for all damage claims due to defects, liability is limited to a maximum of 8% of the total contract price.
If the obligation to rectify defects is contractually excluded, the customer’s remaining rights remain unaffected.
Upon delivery of a new version of Jack Plus, the replaced version must be destroyed or returned to BEWOTEC upon request.
§ 8 Customer Obligations, Prohibited Actions
The customer is obliged to use the data and data collections properly, in particular by refraining from all actions that may endanger data security.
The customer must keep user identification and passwords confidential and use the software while preserving the integrity of the work.
Modifications to the delivered data and systems must be avoided insofar as they are distortive, altering, or re-shaping.
§ 9 Data Security
The customer is fundamentally responsible for data security.
If the customer becomes aware that their user data may have become accessible to third parties, the customer is obliged to have access blocked.
The customer bears the liability risk in relation to their own customers.
This applies in particular to claims by third parties under travel contract law.
§ 10 Notification Obligations
If the determination of the remuneration depends on the customer’s information, the customer must provide complete and truthful information and must confirm this.
§ 11 Data Protection / Confidentiality
Reference is made to the provisions of the Federal Data Protection Act (BDSG).
Pursuant to § 33 BDSG, it is expressly pointed out that BEWOTEC reserves the right to store customer data relevant for contract execution.
These data are expressly permitted as evidence between the parties.
The use of the data for statistical evaluations and market analyses by or for BEWOTEC is permitted.
BEWOTEC will take all necessary precautions to ensure the anonymity of the data sets.
The customer agrees that their data may be transmitted to BEWOTEC’s direct service providers for activation and that these providers may activate the customer for booking travel/services, insofar as this is necessary for establishing and maintaining full CRS functionality.
§ 12 Responsibility for Content
BEWOTEC assumes no responsibility for the accuracy, completeness, and up-to-dateness of the data provided by the direct service providers on their own and/or virtual servers.
BEWOTEC also assumes no responsibility for the continuation of contractual relationships between BEWOTEC and individual direct service providers.
§ 13 Data Transfer Volume
The customer is obliged to use the direct connection to direct service providers, made available via Jack Plus, within the scope of proper business operations.
The data transfer volume caused by data downloads per connected workstation may not exceed, on average, a bandwidth determined by BEWOTEC at its reasonable discretion, taking into account the respective technical standards.
The customer may have the exercise of this discretion reviewed by the ordinary courts for appropriateness.
§ 14 Availability
BEWOTEC assumes no responsibility for uninterrupted access to the databases of the direct service providers.
§ 15 Reservation of Right to Make Changes
In addition to § 23 of the General Part of these AGB, BEWOTEC reserves the right to change the data formats and interface specifications.
If BEWOTEC exercises this right to a reasonable extent, it will notify the customer within an appropriate period in advance.
BEWOTEC also reserves the right to discontinue the CRS.
If BEWOTEC exercises this right for good cause and to a reasonable extent, it will notify the customer within an appropriate period in advance.
Special Conditions for Licensing Agreements for DaVinci
DaVinci is a computer program developed by BEWOTEC that can be used to handle the processes of a tour operator.
§ 1 Subject Matter of the Contract
The following conditions apply to the provision and use of DaVinci in return for a one-time fee.
They do not apply to other services such as installation, integration, parameter configuration, or adaptation of the DaVinci application to the customer’s needs, nor to training measures.
§ 2 Nature and Scope of the Service
BEWOTEC provides DaVinci to the customer in accordance with the provisions of the contract.
Modules that have not been purchased may exist.
The subsequent purchase of modules and licences affects the service and maintenance contract.
DaVinci was checked with a current virus scanning program at a reasonable time before delivery to the customer.
BEWOTEC assures that this check revealed no indication of harmful functions in DaVinci.
Proper data backup is the responsibility of the customer.
§ 3 Rights of Use
DaVinci is protected as a computer program under copyright and related rights.
DaVinci is provided to the customer for its intended use.
The scope of the intended use and the nature and extent of the rights of use are determined by the contract.
If no other agreements on user rights are made in the contract, BEWOTEC grants the customer the following rights:
the non-exclusive right of use,
the right to use the software in any system environment,
the permanent and generally irrevocable right of use.
BEWOTEC does not warrant that the software meets the customer’s requirements and purposes or that it works together with other programs or operating systems selected by the customer, unless expressly stated in the service descriptions.
The customer undertakes to ensure, through appropriate technical and organisational measures, that the intended use of DaVinci is guaranteed.
The customer is entitled to make one copy of DaVinci for backup purposes.
This copy must be stored on a removable data carrier and labelled accordingly.
Backup copies required for proper data protection are considered part of the intended use.
If the customer is entitled to transfer the rights of use to a third party and exercises this right, the customer must impose their contractual obligations on the third party.
With the transfer, the customer’s rights of use expire.
All existing copies of DaVinci must be deleted or returned to BEWOTEC.
The customer may retain one copy for verification and archiving purposes if this is agreed in the contract.
If usage rights are granted only for a system environment defined in the contract, use in another system environment requires BEWOTEC’s consent.
If the defined system environment is not operational, temporary use in another suitable environment is permitted until the disruption is resolved.
The customer undertakes not to convert the supplied version of DaVinci into another code form through disassembly, reverse engineering, or other measures, unless permitted under copyright law.
BEWOTEC shall inform the customer of any copy and usage restrictions integrated into DaVinci, insofar as these are known to BEWOTEC.
If the software is used in multiple branches, locations, offices, or sites, this must be reported to BEWOTEC.
A software licence is required for each branch, location, office, or site.
If the software is used at multiple workstations, a workstation licence is required for each workplace.
This licensing rule also applies when the software is used on the customer’s own or a third-party terminal server and is accessed from multiple workplaces and/or branches, whether via remote desktop connection or another form of remote internet access.
In all cases, BEWOTEC is entitled to use ideas, concepts, and procedures relating to information processing that BEWOTEC has acquired alone or jointly with the customer during implementation, maintenance, and support services, for the performance of similar work for other customers — provided these relate to further developed BEWOTEC products.
§ 4 Extraordinary Termination of Usage Rights
If the customer seriously violates the agreed usage rights or the intellectual property rights of the rights holder, BEWOTEC may terminate the usage rights extraordinarily and with immediate effect.
In the event of termination, the customer is obliged to return the original of the DaVinci standard software affected by the termination, including the documentation, and to delete or return all copies.
At BEWOTEC’s request, the customer shall provide a written declaration confirming the deletion.
The customer is entitled to retain one copy of DaVinci for verification and archiving purposes if such an agreement has been made.
All other statutory provisions remain unaffected.
§ 5 Transfer of Risk
Risk transfers to the customer as soon as the shipment is handed over to the carrier or any other person designated by BEWOTEC to carry out the shipment, or as soon as the goods leave BEWOTEC’s warehouse for dispatch.
If dispatch becomes impossible without BEWOTEC’s fault, risk transfers to the customer upon separation and provision of the goods for dispatch or upon notification of readiness for dispatch.
These provisions also apply to returns following defect rectification or chargeable service work.
§ 6 Default
In the event of default, the customer may set BEWOTEC a reasonable grace period with the declaration that they will withdraw from the contract in whole or in part or claim damages for non-performance if the deadline expires without result.
The parties agree that a reasonable grace period is generally not less than fifteen working days.
If the customer demands damages for non-performance, BEWOTEC’s liability is limited to 8% of the total contract price.
Claims for lost profits are excluded.
These limitations of liability do not apply in cases of intent or gross negligence by BEWOTEC or its vicarious agents.
§ 7 Warranty
The customer’s warranty claims do not extend to versions of DaVinci that the customer modifies or that the customer does not use in the contractually agreed system environment, unless the customer proves that such use is not the cause of the reported defect.
A prerequisite for warranty claims is the reproducibility or detectability of the errors.
The customer undertakes to provide BEWOTEC with all information necessary for rectification, in particular to forward error reports immediately in writing and to support BEWOTEC in a timely manner in eliminating defects.
The customer must examine the delivered DaVinci software without delay.
The duration of the inspection depends on the customer’s technical expertise.
If the customer engages expert assistance, such expert knowledge is attributed to the customer.
Any defects must be reported immediately in writing, including all information known to the customer that could facilitate identification of the defect.
The customer must take all reasonable measures to facilitate the detection of defects and their causes.
The warranty period for defects in rectification services, workarounds, or replacement deliveries also ends with the expiry of the regular warranty period.
If BEWOTEC is contractually obliged to remedy defects, the following applies:
BEWOTEC may remedy the defect by prompt rectification or by replacement delivery, at its discretion.
The customer’s interests will be appropriately considered in the choice of remedy.
The warranty applies only to the latest version of DaVinci taken over by the customer.
A new version must be accepted by the customer if it serves to prevent or correct defects.
The customer is not required to accept a new version if it deviates significantly from the contractually agreed specifications.
If the customer does not accept the new version on this basis, their other rights shall remain unaffected.
If BEWOTEC does not successfully rectify the defect within a reasonable period, the customer may set a grace period with the declaration that they will reject the rectification after expiry.
After expiry of the grace period, the customer may reduce the payment, withdraw from the contract, or — if the statutory requirements are fulfilled — claim damages.
The customer must exercise this choice within 14 calendar days by declaring it to BEWOTEC.
This claim for damages is limited to 8% of the value of the affected service; for all damage claims due to defects, liability is limited to a maximum of 8% of the total contract price.
If the obligation to rectify defects is contractually excluded, the customer’s remaining rights remain unaffected.
Upon delivery of a new version of DaVinci, the replaced version must be destroyed or returned to BEWOTEC upon request.
§ 8 Customer Obligations, Prohibited Actions
The customer is obliged to use the data and data collections properly, in particular by refraining from any actions that may endanger data security.
The customer is obligated to keep user identification and passwords confidential and to use the software while maintaining the integrity of the work.
Modifications to the delivered data and systems must be avoided insofar as they are distortive, altering, or re-shaping.
§ 9 Data Security
The customer is responsible for data security.
If the customer becomes aware that their user data may have become accessible to third parties, they are obliged to have access blocked.
The customer bears the liability risk in relation to their own customers.
This applies in particular to claims by third parties under travel contract law.
§ 10 Notification Obligations
If the determination of the remuneration depends on information provided by the customer, the customer must provide complete and truthful information and must confirm this.
§ 11 Data Protection / Confidentiality
Reference is made to the provisions of the Federal Data Protection Act (BDSG).
Pursuant to § 33 BDSG, it is expressly pointed out that BEWOTEC reserves the right to store customer data relevant for contract execution.
These data are expressly permitted as evidence between the parties.
The use of the data for statistical evaluations and market analyses by or for BEWOTEC is permitted.
BEWOTEC will take all necessary precautions to ensure the anonymity of the data sets.
The customer agrees that their data may be transmitted to BEWOTEC’s direct service providers for activation and that these providers may activate the customer for booking travel/services, insofar as this is necessary for establishing and maintaining full CRS functionality.
§ 12 Responsibility for Content
BEWOTEC assumes no responsibility for the accuracy, completeness, and up-to-dateness of the data provided by direct service providers on their own and/or virtual servers.
BEWOTEC also assumes no responsibility for the continuation of contractual relationships between BEWOTEC and individual direct service providers.
§ 13 Data Transfer Volume
The customer is obliged to use the direct connection to direct service providers available via DaVinci within the scope of proper business operations.
The data transfer volume caused by data downloads per connected workstation must not exceed, on average, a bandwidth determined by BEWOTEC at its reasonable discretion, taking into account the respective technical standards.
The customer may have the exercise of this discretion reviewed for appropriateness by the ordinary courts.
§ 14 Availability
BEWOTEC assumes no responsibility for uninterrupted access to the databases of direct service providers.
§ 15 Reservation of Right to Make Changes
In addition to § 23 of the General Part of these AGB, BEWOTEC reserves the right to change data formats and interface specifications.
If BEWOTEC exercises this right to a reasonable extent, it will notify the customer within an appropriate period in advance.
BEWOTEC also reserves the right to discontinue the CRS.
If BEWOTEC exercises this right for good cause and to a reasonable extent, it will notify the customer within an appropriate period in advance.
Special Project Framework Conditions
The project framework conditions define — depending on the individual case and in addition to the General Conditions as well as the applicable Special Conditions for JackPlus/Vera service agreements and/or Special Conditions for Terminal Server Usage Agreements and/or Special Conditions for Licensing Agreements for JackPlus/Vera and/or the Special Conditions for Licensing Agreements for DaVinci — the fundamental framework, in particular BEWOTEC’s approach, but also special obligations of the customer, insofar as special developments and/or services are the subject matter.
§ 1 Requests / Project Proposals / Indicated Dates
The customer submits a written request in the form of a requirements specification (“Lastenheft”) to BEWOTEC and provides BEWOTEC with the customer’s requirements for the scope of services and functionalities of the project as detailed and complete as possible.
In particular, the customer undertakes to provide BEWOTEC with all information that is likely to be relevant for preparing an offer — such as information about the customer’s business area, the later professional and organisational environment in which the special products and/or services will be used, the number of employees/users, existing (IT) infrastructure, etc.
If the customer specifies a desired delivery or service date in the request, this shall not be regarded as binding.
BEWOTEC reviews the customer’s request to determine technical and/or legal feasibility and submits a non-binding project proposal based on the written request.
This proposal includes, among other things:
a precise description of the project objective,
information regarding scope and cost (as a fixed price, estimated effort, work points “AP”, service level agreements “SLA”, etc.),
and an initial, non-binding indication of the expected delivery or service dates.
BEWOTEC will also point out the need to conclude additional service and/or maintenance contracts and/or the need to purchase additional hardware and software, insofar as this can be identified based on the information available at this early stage.
BEWOTEC reserves the right to adjust the project proposal appropriately if explicit or implicit changes are made to the customer’s project objective or if circumstances become known that were not identifiable to BEWOTEC at the time the proposal was provided.
The customer undertakes to review the project proposal immediately after receipt and to notify BEWOTEC of any requests for changes or modifications, or to point out any discrepancies or inconsistencies between the written request and the project proposal.
§ 2 Conclusion of Contracts
Based on the customer’s project proposal that remained unchallenged or based on the customer’s requests for changes or modifications, BEWOTEC prepares — depending on the need and scope of the project jointly specified in accordance with § 1 — one or more purchase and/or licence and/or software maintenance and warranty agreements.
The subject of these documents is, in particular, the acquisition of hardware and software and/or provisions on licence granting and/or maintenance and support arrangements by BEWOTEC.
§ 3 Development and Completion of Projects
BEWOTEC will begin the development and/or testing of the software to be created and/or the services to be provided for achieving the project objective only after this first binding contractual commitment, but immediately after conclusion of the relevant agreements with the customer.
After — if applicable, provisional — completion of these activities, delivery to and installation by the customer takes place, or optionally installation by BEWOTEC.
BEWOTEC endeavours to meet the delivery and/or service dates specified by it to the extent reasonably possible.
If the customer sets BEWOTEC a grace period due to non-compliance with deadlines, the parties agree that such grace period shall be six weeks, beginning with the receipt of the customer’s written notice of grace period at BEWOTEC.
The customer undertakes in particular to subject the delivered hardware and/or software to an “acceptance test” without delay.
If the customer is unable to do so alone or fully, the customer undertakes to obtain — if necessary, for an additional fee — support from BEWOTEC or, alternatively, from appropriately qualified third parties.
The customer is especially obliged to accept the software individually developed and delivered by BEWOTEC in accordance with the specification procedure described in §§ 1 and 2 without delay after this test, or to accept parts thereof, and in this case to specify the points that do not yet meet the contractually defined requirements.
BEWOTEC will subsequently remedy these points, and the customer must then issue a corresponding project completion declaration to BEWOTEC without delay after successful rectification.
If the customer fails to comply with these obligations within a period of one week in writing, the parties expressly agree that the software shall be deemed accepted three weeks after the date of delivery.
The customer retains the right to prove that a significant defect made the use of the software impossible.
§ 4 Special Obligations of the Customer to Cooperate
The customer expressly agrees to support BEWOTEC, in every stage described in §§ 1–3 of defining and/or achieving the project objective, to the extent necessary and reasonable for the customer and in mutual agreement.
This includes, for example:
providing information or data,
appointing contact persons,
providing space and (IT) infrastructure at the customer’s premises — e.g., for interim tests in each development stage carried out by BEWOTEC.
Such support must generally be provided during regular business hours, but in exceptional cases and after prior consultation with the customer, it may also be provided outside these hours.
This also applies to the period after (partial) acceptance of the software.
If necessary to achieve the jointly developed project objective, the customer undertakes to support BEWOTEC in a “trial-and-error” procedure to an extent that is reasonable for both parties.
The customer undertakes to maintain confidentiality regarding all information that becomes known to the customer during the entire period of project initiation, possible stepwise project progression, and/or execution, as well as thereafter, and that is provided by or connected to BEWOTEC.
If the customer breaches this obligation, BEWOTEC is entitled — without prejudice to any claims for damages or other compensation — to impose an appropriate contractual penalty on the customer.
The customer retains the right to have such penalty reviewed by a court.
§ 5 Reimbursement of Expenses / Fees
If no contract is concluded within four weeks after submission of the project proposal, the customer undertakes to reimburse BEWOTEC for the justified expenses incurred in preparing the project proposal, upon presentation of an invoice.
The contractually agreed fees shall be paid by the customer in instalments, specifically:
25% of the anticipated effort indicated in the project proposal upon invoicing after transmission of the proposal to the customer,
another 25% upon conclusion of the contract,
the remaining 50% of the anticipated effort, or the remaining balance after offsetting the first two instalments, must be paid promptly after acceptance (§ 3 (4)) and final invoicing by BEWOTEC.
