§ 1 General
For all business relationships between customers or companies (hereinafter "Customer") and Seelhof Systemberatung GmbH, Döringweg 1, 35745 Herborn (hereinafter "Seelhof"), the following General Terms and Conditions (hereinafter "GTC") apply exclusively. If these GTC do not contain a regulation, the statutory provisions apply, not the Customer's GTC. Other agreements or side agreements are only effective if confirmed in writing by Seelhof. Provisions of an individually agreed contract between the Customer and Seelhof take precedence over these GTC. However, these GTC apply additionally.
§ 2 Subject of the GTC
The subject of these GTC is the sale of services, software, or hardware by Seelhof. "Software" refers to computer programs created by Seelhof or commissioned by Seelhof from freelance employees, self-employed individuals, or contracted companies ("proprietary software") or those from third-party manufacturers ("third-party software").
§ 3 Offers
All offers from Seelhof are non-binding and subject to change and errors. If the Customer's order is to be qualified as an offer within the meaning of § 145 BGB, Seelhof reserves a four-week acceptance period. The contract is concluded only with Seelhof's written order confirmation or the signing of an order, but at the latest with the acceptance of the delivery or installation by the Customer. Orders without a prior offer are only binding for Seelhof if Seelhof confirms the order. The same applies if the Customer modifies an offer submitted by Seelhof.
§ 4 Contract Conclusion and Changes
The contract conclusion is in writing. Oral agreements must generally be confirmed in text form (e.g., in the appendix to the project contract, meeting minutes, DevOps project management tool, or change requests). This applies especially to changes to the contract subject. Services that involve an effort of up to 2 hours ("minor activities") can also be agreed upon orally. The meeting minutes or written agreements transmitted by Seelhof in WorkItems are binding unless the Customer objects within three business days of receipt. Seelhof will specifically point out this circumstance when sending the meeting minutes.
§ 5 Scope of Services and Type and Place of Performance
The right to use software includes the claim to delivery of the software and associated documentation. If the Customer desires introductory support or training, these must be specially agreed upon. Other services, particularly consulting services, are agreed upon separately. The Customer is obliged to comply with any license and copyright conditions of the manufacturers and suppliers. For software delivery, the costs for support and additional services by Seelhof, as well as future software supplements, extensions, and additional software functions developed by the manufacturer during the usage period, are not part of the license fee and must be paid separately. Seelhof is entitled to perform the services itself or have them performed by third parties.
Seelhof reserves the right to change the contract subject without prior notice during the delivery period if the implementation of the contract subject proves to be infeasible or only feasible with unreasonable effort, and the contract subject and its function and appearance do not undergo unreasonable changes for the Customer. Services are generally provided in one delivery. If this is not possible due to the extensive delivery scope and time or after a change of the service subject by the Customer, Seelhof is entitled to partial deliveries. The type and manner of order execution, as well as the place and time of work, are determined by Seelhof, subject to other agreements. All work will be carried out on-site at the Customer's request. Services provided by Seelhof employees not at the Seelhof business location will be invoiced separately according to effort, travel times, travel costs, expenses, and any accommodation costs. If employees or other vicarious agents of Seelhof are employed at the Customer's premises, the sole authority to issue instructions remains with Seelhof.
§ 6 Delivery, Delivery Dates, and Deadlines
The shipment of products is at the Customer's risk and expense. This also applies to returns. If the delivery is delayed at the Customer's request, the goods will be stored at the Customer's risk and expense at Seelhof.
Delivery dates are generally non-binding unless expressly agreed otherwise. The delivery time specified by Seelhof presupposes the timely clarification of all technical questions. Compliance with delivery obligations presupposes the timely and proper fulfillment of the Customer's obligations (e.g., obtaining information, documents, approvals). Partial deliveries are permissible.
In the case of change requests from the Customer that require significant additional effort, Seelhof can postpone delivery dates to a reasonable extent. Seelhof will inform the Customer of the postponement before implementing the change order. The Customer can cancel the change order without replacement within 10 days of receiving the notification ("change cancellation"). Otherwise, the postponement is considered approved.
If the Customer does not fulfill its payment obligation despite a reminder, becomes evidently insolvent, or if other reasons threaten non-performance of the contract, Seelhof is entitled to withdraw from the contract immediately. Compliance with agreed delivery and service dates also presupposes that payments or other obligations of the Customer are received or fulfilled on time. If this is not the case, the deadline will be extended appropriately. If the deadline is not met for other reasons, the Customer is entitled to set a reasonable grace period in writing with a threat of rejection and to withdraw from the order concerning the delayed delivery and service after the fruitless expiry of the grace period. Claims for damages due to delay or impossibility, including those incurred up to the withdrawal from the contract, are excluded. This does not apply if Seelhof acted intentionally or with gross negligence. Seelhof is entitled to make early deliveries and may withdraw from the contract if a pre-supplier does not deliver correctly or on time.
§ 7 Prices and Price Adjustment
All prices of Seelhof are ex-warehouse Herborn plus the statutory value-added tax.
If the duration of a project is delayed due to the fault of the Customer, Seelhof reserves the right to increase agreed prices to the extent that salaries, purchase prices, or similar procurement costs have increased during the delay.
§ 8 Payment Terms and Default
The Customer pays the agreed usage fee for the software usage right granted in these GTC. In the case of software deliveries, the purchase price is due as soon as the software and the associated license keys are delivered to the Customer. This usage fee includes all fees incurred concerning the usage grant. Payments are due upon delivery, no later than the invoice date. After 30 days from receipt of an invoice or an equivalent payment request, the Customer is in default if the due invoices are not paid. Seelhof can cause the default even before sending a reminder after the due date. Subject to the revocation of credit approval, invoices are payable within 10 days from the invoice date without deductions. Notwithstanding this, Seelhof is entitled at any time to make a delivery dependent on a cash payment without giving reasons. Bills of exchange are only accepted after prior written agreement and for payment. Seelhof is entitled to charge the costs incurred. This also applies to the forwarding or prolongation of bills of exchange. These costs are due immediately. Seelhof assumes no liability for timely presentation, notification, and return of a bill of exchange if not honored. If the Customer is in default with a payment, Seelhof is entitled to withhold all deliveries or services and to demand default interest of 8% above the respective base rate of the European Central Bank. Until all claims existing at the time of delivery are fully paid, all usage rights of the Customer rest unless Seelhof agrees to early usage. The Customer is not entitled to pledge or transfer the software as security.
§ 9 Prohibition of Set-Off
The Customer is not entitled to set off Seelhof's payment claims unless his counterclaim is undisputed or legally established.
§ 10 Remuneration
The remuneration is based on the respective special conditions and the respective orders or contracts. The necessity of travel is agreed upon jointly by the parties. Expenses, accommodation costs, and travel costs are to be reimbursed by the Customer according to the effort. The remuneration of travel times is based on the respective individual contracts. If the Customer is in default with advances, partial payments, or down payments, Seelhof is entitled to refuse performance, notwithstanding other claims, provided Seelhof has previously reminded the Customer at least twice. Surcharges outside regular business hours, holiday, and weekend surcharges are calculated according to the applicable legal provisions and the agreed tariffs. These surcharges are charged in addition to the agreed remuneration and are subject to separate billing. The exact conditions for such surcharges are specified in the respective offer or contract and are binding on both parties.
§ 11 Subcontractors and Employees
Seelhof can provide the contractual services through its employees, other vicarious agents, or subcontractors. Nevertheless, Seelhof remains responsible to the Customer for the proper provision of the contractual services. Seelhof undertakes to use qualified personnel. Both parties are prohibited from employing employees or freelancers of the other party during the term of a contract or for a period of twelve months after the termination of this contract unless the employee or freelancer has applied for an advertised position of this party.
§ 12 Acceptance in Contract for Work
If it is a contract for work, the Customer is obliged to declare acceptance in writing within 10 days after completion of the work. Individual partial services can be checked and accepted separately. Only significant defects entitle the Customer to refuse acceptance. Not every software error constitutes such a significant defect, as, due to the complexity of ERP solutions and other business software, it is not possible to create error-free software even using the most elaborate testing methods according to the current state of the art. A significant defect only exists if the program sequence is disrupted entirely or in terms of significant functions. If significant defects exist that entitle the Customer to refuse acceptance, the Customer must immediately notify Seelhof of the defects, providing useful information. After Seelhof has remedied the defects, the Customer must declare acceptance in writing. If the Customer is obliged to accept and does not declare acceptance despite a written request and deadline set by Seelhof, or if the Customer uses the contractual subject without declaring acceptance despite a written notification of readiness for acceptance and request with a deadline for acceptance by Seelhof, acceptance occurs without further action by Seelhof one week after notification of readiness for acceptance. The functional test to be carried out on the Customer's system is considered successfully conducted if the services fulfill the contractual requirements in all significant aspects. The deviations from the contractually defined requirements are recorded in a jointly created protocol and remedied by Seelhof. Subsequently, acceptance must be declared in writing, or another functional test must be carried out. No further functional test is carried out in the case of non-significant deviations.
§ 13 Customer's Duties to Cooperate
The Customer will support Seelhof in performing the services. These duties to cooperate are essential contractual obligations of the Customer for the contract purpose. The Customer is obliged to fulfill these free of charge, on time, and as agreed. Additionally, the Customer provides Seelhof with a necessary working environment for the provision of services, as specified by Seelhof, free of charge and on time. The working environment includes resources, information, and documents as well as an appropriate infrastructure, including office space, data, and telecommunications facilities, and access to the software and IT systems via remote data transmission. The Customer's duties to cooperate include, in particular, releasing their employees for planned training sessions, timely approval of decisions, conducting system and user tests, supporting data transfers from legacy systems, and building master data in new systems. The Customer undertakes to obligate its employees to cooperate with Seelhof.
§ 14 Data Backup
Unless otherwise agreed, the Customer is responsible for data backup. Data backup includes all possible and reasonable activities and precautions to secure the existence and integrity of the Customer's data. Data backup must be carried out regularly. In particular, a complete data backup must be carried out before the start of services by Seelhof, before service work, and in the event of malfunctions and irregularities.
§ 15 Retention of Title
The delivered products remain the property of Seelhof until all claims from Seelhof's business relationship with the Customer existing at the time of contract conclusion are fully paid. If the value of the goods subject to retention of title exceeds the value of the claim to be secured by more than 50%, Seelhof is obliged to release goods of corresponding value at the Customer's request.
§ 16 Limitation of Liability
The Customer has been informed that it is not possible to exclude errors in software programs entirely. However, the subject of Seelhof's warranty is a program that is usable in its essential functions according to the program description. Seelhof does not guarantee that the programs meet the Customer's requirements. If the programs do not function and Seelhof fails to restore functionality within a reasonable time, the Customer is entitled to return the programs to Seelhof. Seelhof will refund the usage fee provided that the Customer notifies Seelhof of apparent defects within 10 days after delivery or performance and hidden defects within 10 days after discovery within the warranty period, describing the defect, the complained defects were not caused by improper installation or use, modification, improper tests, negligence, or accident. Seelhof does not provide any further warranty. Seelhof is not liable for lost profits, unrealized savings, damages from third-party claims, and other indirect and consequential damages. Seelhof is also not liable for the consequences of data loss. The exclusion of liability does not apply to damages caused by Seelhof employees intentionally or with gross negligence. Any liability of Seelhof is limited to an amount of EUR 2500. The warranty period is ninety days and begins with the delivery of the program to the Customer. All warranty claims against Seelhof expire if the Customer modifies the software in any way or does not use it according to the user instructions.
§ 17 Warranty
Defects occurring during the warranty period must be reported to Seelhof in writing immediately. The defect notification must be in a comprehensible form, providing useful information for determining the damage or defect. Software defects must be reported in written form (screenshot and description) to ensure traceability. The Customer must take all reasonable measures to minimize the damage. The warranty is void if the Customer makes changes to the provided services, especially to the software programmed by Seelhof, or to the composition and use of the hardware or the planned system architecture, without Seelhof's consent, unless the Customer proves that these changes did not influence the occurrence of the defect. If defect rectifications are made more difficult by the changes, the Customer bears the additional costs. The Customer is obliged to grant Seelhof the necessary time and opportunity to carry out the rectification work. If Seelhof fails to remedy significant defects within 3 weeks from receipt of a proper defect notification, the Customer can set Seelhof a reasonable grace period. After the deadline expires, the Customer is entitled to withdraw or reduce the contract if the defect has not been remedied in time. The Customer is only entitled to claim damages under the conditions of § 16. Seelhof can demand compensation for its expenses if it acted on a defect notification without a defect being present or if the claimed defect is due to a circumstance for which Seelhof is not liable. Seelhof can refuse to remedy defects as long as the Customer does not fulfill its obligations, particularly payment obligations, in full and does not have a justified interest in withholding payment.
§ 18 Proprietary Software
Seelhof warrants for a period of 12 months from the date of delivery that proprietary software is essentially free from material and manufacturing defects and works essentially according to the accompanying documentation. The warranty is limited to these services. In the event of a justified defect notification, Seelhof reserves the right to make three rectifications or, if the rectification ultimately fails, grant the Customer the right to rescission or reduction at the Customer's choice. Software defects must be reported in written form (screenshot and description) to ensure traceability. The Customer only has the right to rescission or reduction if a program error proves to be significant and essential for the overall performance and the error cannot be solved by other software means. Any further warranty, particularly for the software's suitability for the Customer's purposes, and for direct or indirect damages (e.g., loss of profit, business interruption) and data losses or damages related to the restoration of lost data, are expressly excluded unless Seelhof or its employees can be proven intentional or gross negligence. Seelhof reserves the right to make changes to the programs even after delivery, improving the program's performance and not impairing the rest of the software. Software update deliveries always refer to the pure provision of the software provided by the respective manufacturer. If the defect only relates to a separable part of the service, the Customer can also withdraw only regarding this defective part. This only applies if the defect-free part of the service can be used independently.
§ 19 Usage Right
Seelhof grants the Customer the non-exclusive and non-transferable right to use the delivered software but not ownership. The scope of use is agreed upon as follows: The software may only be used in connection with one machine (computer hardware) at a time. Changing or editing the software program is not allowed. Copies of the software may only be made for data backup purposes and may not be passed on to third parties. Copies may also only be used on one machine. Further use is not allowed. In the case of proprietary software, the source code remains the property of Seelhof unless otherwise agreed in writing. This also includes the right to receive, use, expand, edit, reproduce, and sell the source code. All protectable rights that may arise during the performance of the services remain with Seelhof. The Customer receives the non-exclusive, non-transferable, temporally unlimited right to use the software provided by Seelhof at the respective business location for all types of use. Use at other Customer locations or transfer to third parties requires Seelhof's prior written consent. The Customer has been informed that Seelhof has copyrights or other protective rights to the programs to be delivered. Use is only permitted under the above conditions. The Customer is prohibited from granting sub-licenses and making the program as a whole or in part or the accompanying documentation available to third parties or otherwise accessible. The Customer undertakes to take all reasonable measures to ensure that the program is treated confidentially. All other rights to the contractual services remain with Seelhof.
§ 20 Priority of Manufacturer's Provisions in the Sale of Third-Party Software
When selling third-party software, Seelhof acts only as an intermediary. The license terms of the respective manufacturers take precedence and are accepted upon breaking the seal, but at the latest upon installation by the Customer or Seelhof.
§ 21 Third-Party Rights
Seelhof is not aware that the use of its services infringes third-party rights. It does not guarantee the freedom from third-party rights. If the use infringes third-party rights, Seelhof can, at its discretion, change the services to the extent reasonable for the Customer to fall outside the scope of protection or obtain the authority that the Customer can use them without restriction and without additional costs.
§ 22 Microsoft License Transactions
The parties agree that Microsoft Ireland Operations Limited is a third-party beneficiary and third-party entitled (§ 328 para. 1 BGB) of contracts with Microsoft license sales by Seelhof in the sense that Microsoft is entitled to enforce this contract legally, to check the compliance of this contract by the Customer, and to contact the Customer directly and, in particular, to claim directly. To this extent, these contracts work in favor of Microsoft within the meaning of § 328 para. 1 BGB, with the consequence that the Customer's obligations also exist directly for the benefit of Microsoft.
§ 23 Confidentiality
Confidential information includes all information and trade secrets and the insights and results derived from them (whether written, electronic, oral, digital, embodied, or in another form) that are disclosed, communicated, or made accessible by one party to the other party in connection with the performance of the contractual services. Confidential information includes, in particular: Templates, drawings, presentations, files, and other work materials created by Seelhof in the context of projects or provided to the Customer ("project documents"). Business and sales data, tender documents, organizational information, processes, know-how, calculation methods, business concepts, business strategies, and business models, business plans, planning data; Software including development stages, source codes, project methodology, applications of artificial intelligence, algorithms; Customer data, employee data, supplier data; The parties are obliged to maintain strict confidentiality of all confidential information during and after the termination of the contract, whereby the confidential information must be protected against unauthorized access by third parties through appropriate confidentiality measures. No party may reproduce, publish, or otherwise disclose confidential information to third parties without the prior consent of the other party, at least in text form, or use or exploit it for purposes outside the contract. Each party is released from the confidentiality obligation if and to the extent that this party is required to provide information about confidential information by an authority, court, or other state agency. This party is obliged to inform the other party immediately and to notify the other party of which agency has requested information and to what extent.
§ 24 Final Provisions
If any provision of these GTC or part of a provision is or becomes invalid, the remaining provisions or the remaining part of the provision remain effective. The place of fulfillment is Herborn. For merchants, the place of jurisdiction is Herborn. German law applies exclusively, excluding the UN Sales Convention. The Customer may only assign rights in connection with these GTC and the respective special conditions with Seelhof's written consent. The Customer may not set off claims arising directly or indirectly in connection with these GTC and the respective special conditions unless these are legally established or acknowledged by Seelhof. If disputes arise from and in connection with these GTC or the respective special conditions, the parties undertake to make reasonable efforts to find an amicable solution.
All previous GTCs are hereby invalid.