Conditions

Your radar and satellite in the universe of interfaces!

Terms of Service

§ 1 General and Scope

  1. The following general terms and conditions (hereinafter referred to as "GTC") apply to all business relationships between:

    Christoph Fischl
    Schongauer Strasse 16A
    86989 Steingaden
    Sales tax ID: DE324543248
    Phone: 49 (0) 8862 - 9328439
    Fax: 49 (0) 8862 - 9873580
    Email: info@fischl-ediservice.de
    Internet: https://www.fischl-ediservice.de
    Tax ID number: DE324543248

    as the contractor and our customers (collectively also called "the parties", individually the "party"). The terms and conditions only apply if the customer is an entrepreneur (§ 14 BGB). An entrepreneur is a natural or legal person or a legal partnership who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity. Entrepreneurs within the meaning of these terms and conditions are also authorities or other bodies under public law, if they act exclusively under private law when the contract is concluded. In contrast, according to Section 13 of the German Civil Code (BGB), a consumer is any natural person who concludes a legal transaction for purposes that are predominantly neither commercial nor self-employed.
  2. Unless otherwise agreed, these terms and conditions apply in the version valid at the time the customer is commissioned or at least in the version last communicated to him in text form as a framework agreement also for similar future contracts, without the contractor having to refer to them again in each individual case.
  3. These terms and conditions apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer will only become part of the contract if and to the extent that the contractor has expressly consented to their validity. This consent requirement applies in any case, for example even if the contractor performs his services to him without reservation, knowing the customer's terms and conditions.
  4. Individual agreements made with the customer on a case-by-case basis (including side agreements, additions and changes) always take precedence over these GTC. A written contract or a written confirmation from the contractor is decisive for the content of such agreements, subject to proof to the contrary.
  5. Legally relevant declarations and notifications by the customer in relation to the contract (e.g. termination or improvement) must be made in writing, ie in writing or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, especially in the case of doubts about the legitimacy of the declaring party, remain unaffected.
  6. References to the validity of legal regulations are only used for clarification purposes. Even without such a clarification, the statutory provisions apply, unless they are directly amended or expressly excluded in these GTC.

§ 2 subject matter of the contract

  1. The subject of the contract is the adaptation of an EDI interface and / or the software acquired by the customer with a separate contract (hereinafter referred to as "software") by the contractor to the needs of the customer, which are determined in cooperation with him.
  2. Another subject of the contract is the creation of new software by the contractor adapted to the needs of the customer. Together with the customer, the contractor has analyzed the customer's existing IT architecture and the software programs used by the customer. The parties have unanimously determined that the customer needs an IT solution that should support him to put his company growth on stable organizational foundations. The contractor therefore takes over the planning, creation, delivery and implementation of software for the customer on the basis of the offer made. At the request of the customer, the contractor will also take on the creation of development documentation for the software owed for a fee. Subject matter, time periods and responsible contact persons of the contracting parties can be summarized in a project plan, which has been drawn up on the basis of the above-mentioned offer of the contractor, provided this is agreed between the parties. This project plan as well as the requirement profile on which the order is placed is attached as an annex to the offer or the order confirmation of the contractor.
  3. The customer is responsible for installing, implementing and parameterizing the software on the productive system. If the contractor is to take on these tasks, the parties will agree this separately.
  4. The objects of the contract under paragraph 1 to paragraph 2 are subject to the law on contracts for work and services; application of § 651 BGB is excluded. The contractual services are accepted in accordance with Section 640 of the German Civil Code (BGB). In the event that partial services are provided, the contractor is entitled to partial acceptance.
  5. Furthermore, the contractor is obliged, if this has been agreed between the parties, to instruct the personnel named by the customer in the use and application of the contractual software through training measures. This is done either through remote training or face-to-face training that takes place on the customer's premises. At the request of the customer, the contractor will carry out more extensive training courses than those specified in Paragraph 5, Clause 1. However, the customer has to bear the costs for this. These are calculated according to the time spent on the basis of an hourly rate in EURO plus the sales tax applicable on the day of invoicing.

§ 3 Services of the contractor

  1. The contractor will hand over all work results to the customer after the completion of the individual project phases. The handover of the contract software takes place via online transmission, unless a handover on a common data carrier or other specific format has been agreed. In addition, the customer can request the immediate surrender of the work results that have already arisen at any time without giving reasons.
  2. The contractor is not obliged to provide the services personally. The contractor may use one or more vicarious agents or engage subcontractors to fulfill the contract. In doing so, the contractor must carefully select, guide and monitor the vicarious agents; the contractor is fully liable to the customer for the vicarious agents in accordance with Section 278 of the German Civil Code (BGB). The contractor must also oblige the vicarious agents to fulfill their obligations under this contractual agreement and to ensure an agreement to maintain data secrecy by every vicarious agent and to provide this declaration to the customer. If a subcontractor is involved, the contractor must ensure that an order processing contract is concluded between the contractor and the subcontractor.
  3. According to this contract, the contractor is not subject to any further instructions from the customer on the manner in which his services are provided. The contractor is also free to determine his place of work and his working hours.
  4. The contractor is solely authorized to issue instructions to its vicarious agents, unless the customer has statutory rights to issue instructions.
  5. The specific performance obligation of the contractor and the definition of the scope of performance of the software to be created by him result exclusively from the content of the order confirmation of the contractor, subject to all the information and explanations contained therein.

§ 4 conclusion of contract

  1. The contractor's offers are subject to change and non-binding. This also applies if the contractor has provided the customer with concepts, technical documentation, other descriptions or documents - also in electronic form - to which the contractor reserves the property rights and copyrights. Before passing them on to third parties, the customer requires the express written consent of the contractor.
  2. The customer's order represents a binding contractual offer. Unless otherwise stated in the customer's order, the contractor is entitled to accept this contractual offer within fourteen (14) days by sending an order confirmation (acceptance).
  3. The acceptance can be declared either in writing (e.g. by order confirmation) or by carrying out the work and, if necessary, handing over the software.
  4. Unless otherwise stipulated in the statutory provisions, the contractor only owes advisory and other support services if these have been agreed as the main contractual obligation.

§ 5 Customer's duty to cooperate

  1. The customer has to promote the success of the project in every phase through active and appropriate participation. In particular, he will provide the contractor with the information, documents and data, computer programs and other means necessary for the proper implementation of the project and, if necessary, enable the contractor's employees to access his business premises and computers during his business hours, insofar as this is necessary for the fulfillment of the Is necessary for the purpose of the contract.
  2. Insofar as the customer provides the contractor with information, documents and data, computer programs and other means, the customer assures that he is entitled to transfer and use them. The contractor is not obliged to check the content made available by the customer, in particular not with regard to whether it is suitable for achieving the purpose pursued with the commissioned service. The customer releases the contractor from third party claims that third parties may assert against the contractor in connection with a violation of rights. The customer also assumes the reasonable costs of the necessary legal defense including all court and lawyer costs in the statutory amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to immediately, truthfully and completely provide the contractor with all information that is necessary for the examination of the claims and a defense.
  3. The training or software adjustments and software creation via remote offered by the contractor take place exclusively in electronic form via online video conference using appropriate technical means (e.g. TeamViewer). For this purpose, the customer particularly needs a suitable device and access to the Internet as well as the TeamViewer software. The customer is responsible for the existence of the technical system requirements. Liability on the part of the contractor due to the lack of the technical system requirements or in the event of a defect on the part of the customer is excluded.
    The customer undertakes to remain at his workplace during a remote session and to monitor it. If the customer cannot remain at his workplace during the remote session and monitor the remote session, separate consent is required to record the remote session.
    In its own interest, the customer should quit all programs and close ads when using remote sessions that are not related to the remote sessions. It is contractually provided through the acceptance of the terms of use and the approval of remote control (by naming the ID) by the customer that it is ensured by the customer that the contractor does not come into contact with personal data from the environment of the Customer comes.
  4. If the customer does not meet his obligations to cooperate and the contractor cannot complete the project or parts of it within the agreed time, the period specified in the schedule is extended appropriately.
  5. In addition to the agreed flat-rate remuneration, the customer is obliged to reimburse the contractor for all additional expenses incurred through a culpable breach of the duty to cooperate on the basis of his current standard remuneration rates. Further rights by the contractor remain unaffected.

§ 6 project implementation

  1. The contractor will start working on the software after the contract has been concluded.
  2. The contractor undertakes to notify the customer immediately in writing of any expected or actual deviations from the set schedule, stating the relevant reasons. The parties make it clear that the contractor is not entitled to change the deadlines provided therein.
  3. The customer is obliged to provide the contractor with all the information that the contractor needs to perform the service in accordance with the contract while he is working on the software.
  4. The customer is entitled to request changes to the requirement profile from the contractor. Such a request must be exercised by means of a written declaration.
  5. The contractor is obliged to comply with a change request in accordance with Paragraph 4, provided that this is reasonable within the scope of his operational capabilities. The parties will document the change request in writing; Any additional costs of the contractor and postponements of the schedule are to be regulated separately.

§ 7 project management

  1. The project management and responsibility lies with the contractor.
  2. The parties name each other contact persons and their deputies who are responsible and expert in managing the fulfillment of the contractual obligations for the named party.
  3. The contractor's contact person is the head of the project and is therefore responsible for all questions arising during the project as well as for requesting and receiving all information owed by the customer and other acts of cooperation. The project manager must always and immediately provide the customer with all information relating to the project and make decisions. The project manager regularly checks compliance with the time frame and the content of the project assignment as well as the quality of the work performed.
  4. ) The parties must inform each other immediately of any changes in the named persons. Until such notification is received, the previously named contact persons and / or their deputies are deemed to be entitled to make and receive declarations within the framework of their previous power of representation.
  5. The contact persons agree at regular intervals about progress and obstacles in the execution of the contract in order to be able to intervene in the execution of the contract if necessary.
  6. A steering committee consisting of responsible members of the customer and members of the contractor's management is formed as an escalation body, which meets regularly once a month and is informed about the project status by the contact persons. In addition, the steering committee must be convened by the contractor or the customer immediately if compliance with the timeframe and the content of the project order is at risk in a not insignificant way or if a decision has to be made on expanding the project order to include additional functions and the decisions require additional time and resources. The steering committee meets as soon as possible and has to make its decisions within the meeting.

§ 8 Acceptance and test phase

  1. The services specified in the order confirmation are usually provided and accepted in sections. After completion of the services described for the individual section, the contractor will inform the customer of this. The customer checks the software as part of a two-week test phase. This begins with the installation of the software to be provided for the individual section. The test phase enables the customer to check the functionality of the software and its compliance with the specifications of the concept as well as a check with regard to any other defects.
  2. The customer will notify the contractor in writing of any errors in the software that occur during the test phase. The contractor is also available to the customer during the test phase in order to investigate and rectify defects in the software immediately.
  3. If errors in the software should occur during the test phase and the customer notifies the contractor of these errors in writing, the test phase is extended until the error has been corrected and for a subsequent appropriate examination period.
  4. If no major errors occur during the test phase, even during load operation, or if the contractor is not notified of any major errors in writing, the customer will submit a written declaration that the software completed for the individual section has been installed in accordance with the contract (acceptance). The contractor assumes no responsibility for the server, the data lines, the customers' Internet access, etc.
  5. In the event of significant deviations, the customer is entitled to refuse acceptance until the deviations from the contractually stipulated requirements have been eliminated.
  6. If the customer does not declare acceptance, the contractor is entitled to set the customer a period of three (3) weeks to declare acceptance. After this has elapsed without result, the acceptance is deemed to have taken place, provided the customer does not provide a reason in writing as defined in Paragraph 5, stating a reason.

§ 9 rights of use

  1. The customer receives the exclusive and temporally and spatially unlimited right to use the contractual software. He has the right to edit and redesign these according to his own needs without the consent of the contractor.
  2. The customer does not have the right to resell the contractual software or to grant licenses to third parties.
  3. The contractor is responsible for ensuring that the contractual performance results are free from third party rights and, to the best of its knowledge, do not have any other rights that limit or exclude free use by the customer.
  4. If the contractual use is impaired by the rights of third parties, the contractor has the right to change the contractual services so that they no longer fall within the scope of protection of third party rights. However, this only applies if the functionality of the contractual programs is not impaired as a result of such a change. Otherwise, the customer can oppose the change request and withdraw from the contract or reduce the remuneration.

§ 10 Remuneration and Terms of Payment

  1. The prices agreed in the order confirmation in EURO for our services, hourly or daily rates plus the statutory sales tax applicable on the day of invoicing are decisive.
  2. A down payment of 20% of the total contractually agreed invoice amount is due for payment immediately after conclusion of the contract or after receipt of an advance invoice, unless otherwise agreed between the parties. The deposit will be offset against the total price of the contractually agreed invoice amount. The contractor can make the start of his activity dependent on the receipt of the deposit. The receipt of the invoice amount on the contractor's business account is decisive for the timeliness of payment. After the aforementioned period has expired, the customer is in default of payment.
  3. If an agreed appointment is not canceled or postponed one (1) hour before the start and it therefore occurs due to waiting times for which the contractor is not responsible, the customer has to bear the costs for the waiting time to a reasonable extent.
  4. The customer receives a separate invoice for the remaining invoice amount. The remaining invoice amount is due 7 days after the end of the project or after partial acceptance or acceptance, without any discount. The receipt of the invoice amount on the contractor's business account is decisive for the timeliness of payment.
  5. The contractor is entitled to reimbursement of his necessary, invoiced and proven expenses that he incurs in the exercise of his activity under this contract. The customer only has to reimburse the kilometer flat rate, travel and accommodation costs as well as other expenses not directly related to the activity if he has expressly consented to these in writing beforehand.
  6. For self-contained parts of the service, in accordance with the statutory provisions, the contractor can demand an installment payment in the amount of the value of the services rendered by him and owed under the contract.
  7. The customer only bears any additional expenses in the cases of Section 5 (4) of these General Terms and Conditions and only after prior written authorization by the customer.
  8. When the above payment deadline has expired, the customer is in default. Interest is due on the outstanding remuneration during the period of default at the respectively applicable statutory default interest rate. The contractor reserves the right to assert further damage caused by default. The contractor's claim to commercial maturity interest (Section 353 of the German Commercial Code) remains unaffected in relation to merchants.
  9. The customer is only entitled to set-off rights if his counterclaims have been legally established or are undisputedly linked to or recognized by the main claim of the contractor.
  10. The customer's right of retention is excluded, unless the customer's counterclaim stems from the same contractual relationship and is undisputed or has been legally established. A written notification to the contractor is required to assert the right.
  11. If, after the conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the contractor's claim to remuneration is jeopardized by the customer's inability to perform, the contractor is obliged to withdraw from the contract in accordance with the statutory provisions on refusal to perform and - if necessary after setting a deadline entitled to the contract (§ 321 BGB).

§ 11 Warranty

  1. The contractor guarantees that the software created has been created in accordance with the contract and does not have any defects that negate or reduce its value or its suitability for the normal use or use stipulated in the contract.
  2. The contractor provides the guarantee by repairing or delivering an error-free program version or error-free documentation. If a reported defect cannot be remedied within a reasonable period of time, the customer can assert the rights in accordance with §§ 634, 635 BGB or, after the unsuccessful expiry of a reasonable deadline set for the contractor in writing to remedy the defect, remedial action by another entrepreneur or his own employees as required of § 637 BGB at the expense of the contractor.
  3. The warranty period is twelve (12) months beginning with the complete acceptance within the meaning of § 8 of this contract.

§ 12 Other liability

  1. With regard to the services provided by the contractor, the latter, his legal representatives and his vicarious agents are only liable in the event of intent or gross negligence.
  2. In the event of a breach of essential contractual obligations, liability also exists in the case of simple negligence, but limited to the foreseeable damage typical of the contract. Essential contractual obligations are those obligations that the contract imposes on the contractor according to its content to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract in the first place and on which the customer can regularly rely on compliance (so-called cardinal obligations).
  3. Claims for damage resulting from injury to life, limb or health as well as under the Product Liability Act remain unaffected by the above restrictions.
  4. Otherwise, liability on the part of the contractor is excluded.

§ 13 Confidentiality

  1. "Confidential information" means all information and documents that the other party has knowledge of about business transactions of the other party concerned, in particular, but not exclusively, print documents, layouts, storyboards, numerical material, drawings, tapes, pictures, videos, DVDs, CD-ROMs, interactive products and such other data that contain films and / or radio plays and / or other copyrighted materials of the customer or companies affiliated with the customer.
  2. The parties undertake to keep confidential information concerning the other party confidential and to use this only for the execution of this contract and the purpose pursued with it. This obligation continues for a period of twenty-four (24) months after termination of the contract.
  3. The parties undertake to impose confidentiality obligations on all employees and / or third parties (e.g. suppliers, graphic designers, repro agencies, printers, film producers, recording studios, etc.) who have access to the aforementioned business transactions. This obligation also continues for a period of twenty-four (24) months after termination of the contract.
  4. The confidentiality obligation according to Paragraph 2 does not apply to information
    1. which were already known to the other party when the contract was concluded,
    2. which were already published at the time of disclosure by the contractor without this being due to a breach of confidentiality by the other party,
    3. which the other party has expressly approved in writing for disclosure,
    4. which the other party has lawfully received from other sources without any restrictions affecting confidentiality, provided that the disclosure and use of this confidential information does not violate contractual agreements, statutory provisions or official orders,
    5. which the other party developed itself without access to the confidential information of the customer,
    6. which must be disclosed due to legal information, notification and / or publication obligations or official orders. As far as permissible, the party obliged to do so will inform the other party as early as possible and give them the best possible support in taking action against the disclosure obligation.
  5. If the contractor is made aware of confidential information by a third party, he must notify the customer of this immediately in writing.

§ 14 Termination

  1. Either party can terminate this contract for good cause.
  2. An important reason exists in particular if the acceptance of the concept in accordance with § 8 of this contract fails or if insolvency proceedings are opened against the assets of the other party or the opening of insolvency proceedings is rejected due to insufficient assets.
  3. If one of the parties terminates this contract extraordinarily in accordance with Paragraph 1, any obligation of the customer to pay the contractor no longer applies; Services that have already been billed will be billed proportionally up to the time of termination. The contractor is obliged to repay the amounts already paid by the customer if the services provided by the contractor up to the time of termination cannot be used for the contractually intended purpose.

§ 15 data protection

  1. The contractor collects and stores the customer's data necessary for business transactions. When processing the customer's personal data, the contractor complies with the statutory provisions. The contractor is entitled to transmit this data to third parties commissioned to carry out the service, insofar as this is necessary to fulfill the contract. Further details can be found in the online offer of the contractor at https://fischl-ediservice.de/datenschutz retrievable data protection declaration.
  2. Upon request, the customer receives information about the personal data stored on him at any time.
  3. In addition, the statutory data protection regulations apply, in particular the General Data Protection Regulation (GDPR), the new version of the Federal Data Protection Act (BDSG-new) and the Telemedia Act (TMG).
  4. The contractor has the copyrights to all images, films, texts and other documents that are published on his website or made available to the customer. Use of the images, films, texts and other documents is not permitted without the express consent of the contractor.

§ 16 final provisions

  1. For these terms and conditions and the contractual relationship between the contractor and his customer, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the UN sales law.
  2. If the customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - is the contractor's place of business in Steingaden. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). In all cases, however, the contractor is also entitled to take legal action at the place of performance of the performance obligation in accordance with these GTC or a priority individual agreement or at the customer's general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive responsibilities, remain unaffected.

Stand: 01.01.2020

Share by: