Terms of Service

Part I - Software licensing

§ 1. Subject Matter of Contract

( 1)

The object is the provision of the software in accordance with the contract / order, hereinafter referred to as "software", and the current product description. The product description and the system requirements have been brought to the customer's attention during the contract negotiations. The current version of the product description can be viewed and printed out by the Customer at any time on the website www.incony.de . Further terms and conditions are excluded unless otherwise agreed in this contract.

( 2)

The customer is entitled to use the software within the scope of his business operations and the agreed number of installations/database entries in accordance with the contract. INCONY grants the customer the non-exclusive and indefinite rights of use to the software with the restriction of § 5, which are non-terminable and transferable. An enlargement of the database entries requires a corresponding extension of the existing contractual agreements.

( 3)

The license fee does not include the installation, training or customization of the software. These and other consulting or services must be agreed separately in writing and compensated for.

( 4)

INCONY is entitled to take measures to protect the software.

§ 2. Prices and Terms of Payment

( 5)

Prices and due date result from the contract / order. If the customer does not pay in accordance with the due date, INCONY is entitled to restrict the use of the software in any way.

§ 3. Rights and Obligations of the Customer / Restrictions

( 6)

The customer is entitled to make an archive copy of the software for backup purposes. The copies of the software used for a proper data backup are part of the intended use. The customer must label backup copies of the software accordingly.

( 7)

If the customer has been given the software for an unlimited period of time, the customer may only sell this software to third parties after written notice and with the consent of INCONY. Resale is only permitted if the customer passes on the originals provided and does not retain any - even partial - copies, including backup copies.

( 8)

The customer may not reproduce any part of the program documentation delivered together with the licensed software without the written permission of INCONY.

( 9)

In all other respects §69a ff UrhG (German Copyright Law) applies.

§ 4. Liability for Defects

(10)

Under the current state of technology, defects in the software cannot be completely avoided. INCONY warrants that licensed software provided for an unlimited period of time and its updates are free from defects at the time of delivery  as well as twelve months after delivery. An insignificant defect is not relevant. The standard used is the product description, unless otherwise agreed in writing. The prerequisite for warranty claims is the reproducibility or ascertainability of the defects. Only the last update provided to the customer is subject to warranty. Malfunctions due to non-compliance with the applicable system requirements, in particular when using the software on hardware that does not meet the current minimum requirements specified by INCONY, do not constitute defects.

(11)

If a defect occurs in the software, the customer is obliged to inform INCONY of this in writing within two weeks. Within the scope of the written notice of defects, the defect and its manifestation must be described precisely enough for INCONY to be able to examine the defect and exclude an operating error. If the program documentation provides clear hints for problem analysis and clear instructions for remedying the defect and/or if the defect is due to faulty operation, INCONY may demand reasonable reimbursement of its expenses.

(12)

When localizing and remedying a defect, the customer must support INCONY free of charge within a reasonable framework, e.g. by providing exact descriptions of the defect and the system, by providing data or granting access to the hardware.

(13)

If the software has a defect as defined in paragraph (11), the customer has the right to supplementary performance or - depending on INCONY's choice - to circumvention or new delivery.

(14)

INCONY can also provide a preliminary rework until the delivery of an update showing the customer possibilities, procedures and procedures to circumvent the defect or its effects. This does not apply if this circumvention is not reasonable for the customer.

(15)

If and to the extent that INCONY fails to provide a defect-free service in accordance with the contract, even through repeated supplementary performance, the customer shall be entitled, after expiry of a reasonable grace period, to reduce the payment accordingly (reduction) or, in the case of temporary transfer, to terminate the transfer contract with regard to the software affected by the defect. The assertion of claims for damages is excluded.

(16)

The limitation of liability shall not apply in the event of a guarantee or warranted quality, fraudulent concealment of a defect, personal injury, intent or gross negligence. Claims by the customer for compensation for lost profit are excluded.

(17)

Product and other property descriptions of INCONY do not represent guarantees of quality or durability as defined by §443 of the German Civil Code (BGB). The parties agree that a guarantee declaration within the meaning of §443 BGB only exists if INCONY issues it in writing using the term "guarantee" and in compliance with the formal requirements listed in §477 BGB.

§ 5. Termination of Rights of Use

(18)

If the customer seriously violates the agreed rights of use or property rights of the right holder, INCONY may terminate the rights of use. This presupposes an unsuccessful warning with an appropriate deadline set by INCONY.

(19)

In the event of termination, the customer is obliged to delete the original of the software affected by the termination, including the documentation and all copies, or to return it to INCONY. Upon INCONY's request, the customer shall make a declaration of deletion.

(20)

The other statutory provisions shall remain unaffected.

Part II - Software Maintenance

§ 6. Subject Matter of the Contract

(21)

The object is the maintenance of the software in accordance with the maintenance conditions from the contract / order.

(22)

In all other respects, the provisions of Part I shall apply unless otherwise agreed below.

§ 7. Conditions of Care

(23)

The contractual partners understand maintenance as the elimination of defects in the software and documentation in accordance with § 8 as well as the further development of the software in accordance with § 9.

(24)

In the event of a change to the Customer's system hardware and/or software on/with which the software is used by INCONY, INCONY is only obliged to continue maintenance if it is a system hardware or software released by INCONY or if further maintenance is reasonable. The customer is not entitled to a right of retention.

(25)

Old versions of the Software are not covered by this Maintenance Agreement, whereby any version of the Software that does not correspond to the generally up-to-date version delivered shall be deemed to be the old version.

§ 8. Removal of Defects

(26)

INCONY has to eliminate the defects of the software and documentation that have been reported or discovered.

(27)

The measure for the existence of defects in the software is the product descriptions and system requirements of the software, which may be updated during maintenance.

(28)

If a defect occurs, the customer is obliged to inform INCONY of this in writing within two weeks.

(29)

In urgent cases, the INCONY hotline can be utilized. The hotline is available Monday to Friday during INCONY's regular business hours. However, the use of this service does not release the customer from the obligation to send the defect report and the necessary documents. The valid business hours of the hotline will be communicated to you.

(30)

INCONY will, depending on the objective severity of the defect, immediately or within a reasonable time after providing the necessary documents, begin with the removal of the defect. The severity of the defect shall be assessed by INCONY on the basis of the usual use of the software by the majority of the customers.

(31)

If the software cannot be used completely productively due to the reported defect or if the customer's EDP system breaks down completely due to the reported defect, if the customer informs INCONY of this in the defect report and proves this at the request of INCONY, then INCONY must begin with the correction of the defect within one working day, as far as this is possible and reasonable.

(32)

Depending on the severity of the defect assessed by INCONY in accordance with paragraph (30), the remedy of the defect must be completed within a reasonable period of time, unless INCONY provides the Customer with a feasible means of circumvention within this period. This period shall be reasonably extended if INCONY proves that it employs sufficient and appropriately qualified personnel to remedy the defect under the circumstances.

(33)

If it turns out that the software is not defective, INCONY can demand a separate fee in accordance with the respectively valid fee price list and, if the work has not yet been completed, make its continuation dependent on a corresponding payment.

§ 9. Further Development

(34)

INCONY will adapt the software to subsequent versions of the hardware and software components described in § 7 (24) after their release. INCONY reserves the right to release the software at its own discretion.

(35)

INCONY can also further develop the software at its own discretion based on its own research or suggestions made by the customer or other users with regard to functionality and ergonomics. The customer may not derive from this any right to make certain changes/additions to the software or generally demand changes/additions to the software beyond those described in paragraph (34).

§10. Updates

(36)

INCONY provides updates to the software based on program changes/extensions in accordance with § 8 and § 9 or based on other program changes in the form of separate data carriers, provided that the installation of the update cannot be carried out by the customer by making the changes or by remote maintenance. Required documentation shall only be supplied in electronic form.

(37)

The customer may be able to install the updates himself or may have to request INCONY to do so.

(38)

The customer is obliged to immediately accept and install all updates, no later than the delivery of the following update, as the functional installation of updates requires the functional installation of the previous program version.

(39)

INCONY grants the customer the right to use all updates to the extent that they exist in the program with which they are intended to be used or which they are intended to replace.

(40)

The right to use the software, which is technically replaced by the delivered updates, expires within two weeks after the customer uses the delivered updates productively, or one calendar month after receiving the delivered updates at the latest.

§11. Compensation for Maintenance Services

(41)

The maintenance fee for the services according to § 6 with the scope of services described in § 7 - § 10 as well as the due dates result from the order. The initial calculation of the care is made with the contractually agreed start of use. The payment will be invoiced annually in advance.

(42)

The maintenance fee can be terminated with a notice period of three months before the end of a calendar year, otherwise it is extended for another year.

§12. Start and Duration of Maintenance

(43)

The maintenance of the software begins with the start of use and runs for an indefinite period, unless otherwise stipulated.

(44)

The maintenance agreement can be terminated by either contractual partner with three months' notice before the end of the year.

(45)

The termination must be submitted in writing and must be promptly confirmed in written form by the other party notifying the other party of receipt of the notice of termination.

§13. Customer Obligations to Cooperate in the Maintenance of the Software

(46)

The customer will support INCONY in every respect in the fulfilment of the contractual obligations. In particular, he will support INCONY to the best of his ability in the search for the cause of the error and, if necessary, encourage his employees to cooperate with INCONY's representatives. The support services also include the use of the respective support of third parties for the operating systems, mail software systems and third party components used, which are not INCONY software products, but are used together with them.

(47)

INCONY can request that the customer's contact person provides proof of training in the use of the software.

(48)

In the event of error messages, the customer shall observe the symptoms that have occurred, the system and hardware environment in detail and - if necessary using forms provided by INCONY - report an error to INCONY stating information useful for the error elimination, for example the number of users concerned, a description of the system and hardware environment as well as, if applicable, simultaneously loaded third-party software, and documents; detected malfunctions shall be made available to INCONY in reproducible form on a suitable data carrier.

(49)

The customer is obligated to properly back up the data. In particular, the customer is obliged to make a data backup immediately before importing or implementing a maintenance service and to keep all data used or obtained in connection with the software available in machine-readable form as a backup copy, which enables lost data to be reconstructed with justifiable effort.

(50)

The customer shall ensure that the employees commissioned by INCONY to perform the software support services are granted free access to the respective computer and the software at the agreed time if the on-site services are separately commissioned. The customer shall ensure that during these software support services a qualified employee of the customer is available at the installation site to provide support.

(51)

The aforementioned obligations to cooperate are essential contractual obligations. If the customer violates his obligations to cooperate, INCONY is not obliged to render services. In the event of repeated or serious breach of duty, INCONY is entitled to terminate the contract within a period of one month. The contractual relationship shall end at the end of the following month. The other statutory provisions shall remain unaffected.

Part III - Provision of Services

§14 Type and Scope of Services

 

INCONY renders the service according to the agreements in the service contract/order and according to the currently valid state of technology at the time of conclusion of the contract and with personnel qualified to render the agreed services.

§15. Cooperation of the Customer

 

The customer shall support INCONY in the provision of the services to an appropriate extent. In particular, the customer shall provide INCONY with the necessary information and documents in a complete and timely manner. Additional cooperation services require a separate agreement in the service contract/order. The customer is responsible for proper data backup.

§16. Rights to the Embodied Service Results

 

INCONY grants the customer the non-exclusive, permanent, irrevocable and non-transferable right to use the embodied service results provided within the framework of the contract, insofar as this results from the purpose and area of use of the contract. These rights include the agreed intermediate results, training documents and aids.

§17. Compensation for Services

(52)

If services are provided by the customer or on the basis of a separately agreed individual order, the payment shall be the compensation for the time spent on the contractual services in accordance with the current price list for services. Material costs are paid separately. Waiting times of INCONY employees for which the customer is responsible shall be charged as working hours.

 

INCONY issues the invoice in the case of remuneration according to expenditure immediately after the provision of the service, unless otherwise agreed. Payment on a time and material basis is due upon receipt of a verifiable invoice with corresponding proof of performance. The proof of performance shall also be deemed approved if and to the extent that the customer does not raise objections within 14 calendar days of receipt.

(53)

A fixed price agreed in the order is the remuneration for all services defined in the order for this fixed price. The fixed price remuneration is due within the periods agreed in the INCONY quotation for the order. The prerequisite for the due date is the receipt of a verifiable invoice.

(54)

Travel costs and expenses will be charged separately.

§18. Qualitative Default in Performance

(55)

If the service is not provided in accordance with the contract or is flawed and INCONY is responsible for this, INCONY is obliged to provide the service in accordance with the contract without additional costs for the customer within a reasonable period of time. The prerequisite is a complaint by the customer, which must be made immediately, at the latest within 2 weeks after becoming aware of the defect. If, for reasons for which INCONY is responsible, the contractual provision of the service is not successful in essential parts even within a reasonable grace period expressly set by the customer, the customer is entitled to terminate the contract without notice.

(56)

In this case, INCONY is entitled to remuneration for services rendered on the basis of the contract until the termination becomes effective. The remuneration shall only be waived for those services for which the customer proves not usable by him within 4 weeks after declaration of termination.

(57)

The right to extraordinary termination for good cause remains unaffected. An out-of-court termination by the customer requires an unsuccessful caution.

(58)

INCONY is entitled to remuneration for services rendered on the basis of the contract until the termination becomes effective. The remuneration shall only be waived for those services that the customer declares to be of no use to him within 4 weeks after declaration of termination. Further claims by the customer due to qualitative defaults in performance are excluded. This exclusion does not apply in the case of intent or gross negligence or in the case of injury to body, life or health.

Part IV - General

§19. Payment Deadlines/Delays

(59)

All payment periods begin on the invoice date. Unless otherwise agreed, the invoice amount is due and payable immediately and without deduction upon receipt of the service and an auditable invoice.

(60)

If the customer is in arrears with a payment in whole or in part, INCONY is entitled to charge the legal interest of 8% p.a. above the base rate from the date in question. We reserve the right to claim further damages and the right to withdraw from the transfer contract or to terminate the maintenance or service contract. INCONY is furthermore entitled to withhold its services and to demand that outstanding deliveries and services be carried out only in exchange for advance payments or securities.

§20. Copyrights

 

The software and its updates, including the associated documentation, are protected by copyright.

§21. Liability

(61) INCONY's liability is conclusively regulated for material defects in § 4, for qualitative disturbances of the service in § 18 and for defects of title in § 22. INCONY is also liable for claims for damages due to illicit acts, breach of duty and breach of the obligations listed in § 311 of the German Civil Code as follows:
  • For property damage up to 200,000 Euro per damage event, but not more than 500,000 Euro in total per contract.
  • For financial losses up to a maximum of 10% of the total price of the contract, in total up to a maximum of 200,000 euros per contract. INCONY has established standard business liability for its commercial activities. If this grants a higher liability sum, the amounts provided therein shall apply.
  • In the event of loss of data, INCONY shall only be liable for the expenditure that would have been necessary to restore the data if the customer had properly backed up the data. Liability for a loss of data also requires that the customer has carried out a data backup with the required frequency and care, at least once a day, and that these backed up data can be used to restore the original data.
The limitations of liability shall not apply in cases of intent or gross negligence, personal injury, breach of cardinal obligations or if liability is mandatory under the Product Liability Act. Any contributory negligence on the part of the customer shall always be taken into account.
(62)

In the case of software not produced by INCONY (third-party software), the contractor's liability is limited to the proper condition of the data carriers and any manuals. The contractor assumes no liability for the content, functionality and faultlessness of the third-party software. This warranty is the sole responsibility of the software manufacturer.

(63)

INCONY does not assume any liability for the success intended with the use of the software at the customer and is not liable for lost profit, savings, damages from claims of third parties and other indirect damages and direct consequential damages as well as the loss of recorded data. 

(64)

The limitation of the customer's claims under § 4 is regulated conclusively. In all other respects, claims for damages against the respective other contractual partner shall become statute-barred in accordance with the statutory provisions, but no later than three years after the delivery or performance of the defective service or the illicit act, unless liability is based on intent.

22. Exemption from Defects of Title

(65)

Prerequisite for the liability for defects in title is that INCONY has been informed of such claims by the customer in written form within 14 days after first acknowledgement by the customer. Furthermore, the customer has to leave all defence and settlement negotiations to INCONY. The customer has to grant INCONY all necessary authorizations for judicial or extrajudicial measures. He is not permitted to acknowledge the claims of the third party without the written consent of INCONY, or to influence the defence of the claims by INCONY in any other way by actions not coordinated with INCONY.

(66)

If claims are asserted against the customer according to paragraph (65), INCONY may change or replace the licensed software or service to a reasonable extent for the customer at their own expense.

(67)

Further claims of the customer due to an infringement of third party industrial property rights are excluded. This exclusion shall not apply in the event of a guarantee or warranted quality, fraudulent concealment of a defect of title, personal injury or intent or gross negligence.

§23 Data Protection/Confidentiality

(68)

The customer shall ensure that INCONY is made aware of all relevant facts that go beyond the legal regulations and are necessary for INCONY for reasons of data protection and confidentiality. The customer is responsible for compliance with laws and regulations on data protection and IT security.

(69)

Should it not be possible for INCONY to carry out a maintenance measure without access to personal data, the customer is informed that, in accordance with the legal requirements, he must inform the persons concerned that he will pass on their data to INCONY or that INCONY will allow access to their data. The customer is aware that he must obtain the consent of the persons concerned in an appropriate form before carrying out the maintenance order.

(70)

The customer and INCONY are obliged to treat all confidential information, business and trade secrets obtained within the scope of the care and service relationship confidentially, in particular not to pass them on to third parties or to use them for other than contractual purposes.

§24. Final Provisions

(71)

Changes require to be in writing. This also applies to the written form clause.

(72)

Should individual provisions of this contract be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The parties shall agree on a new provision which comes closest to the intended economic purpose instead of the ineffective or supplementary provisions.

(73)

The legal relationship between INCONY and the customer shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of performance for all liabilities is Paderborn. If the customer is a merchant, a legal entity under public law or a special fund under public law, Paderborn shall be the agreed place of jurisdiction. INCONY is, however, entitled to sue the customer at the general place of jurisdiction.

These Terms of Services are only a translation into English and have no legal bond. The German AGB is the legal basis.