General Terms and Conditions of Software Development & Support Services
§1 Validity and scope
All services of ALPEIN Software SWISS AG - hereinafter referred to as ALPEIN Software, are provided exclusively on the basis of these General Terms and Conditions. The use of the service implies that the General Terms and Conditions are considered as accepted. The acceptance of the General Terms and Conditions also refers to all future business relations, even if they have not been expressly agreed again. ALPEIN Software is entitled to amend or supplement these General Terms and Conditions. Misprints and errors excepted.
§2 Contractor and Client
The Contractor is ALPEIN Software. Yet, ALPEIN Software is entitled to fulfil its obligations towards the Client through the third parties. The Client is the person who arranges the execution of the order - in a written or verbal form – even if the invoice is issued to a third party at the customer's request.
§3 Delivery and deadlines
1. The dates and deadlines stated by ALPEIN Software are non-binding, unless otherwise expressly agreed in a written form. 2. Deliveries and deadlines are subject to the prerequisite that the Contractor’s own suppliers make timely and proper delivery to ALPEIN Software. Partial deliveries are permitted.
§4 Remuneration and due dates
1. ALPEIN Software shall provide the Client with the services agreed in the contract at the agreed prices and conditions. Invoices are issued after the agreed service has been rendered or on the monthly basis. The services provided on the monthly basis are invoiced in advance in one, four or twelve installments.
2. The remuneration is due upon the delivery of the work. The remuneration shall be payable within 30 days without any deduction. Special terms of payment shall be agreed individually on a case basis. In accordance with the German Civil Code (Bürgerliches Gesetzbuch, BGB), in case of a payment delay, ALPEIN Software is entitled to charge interest on arrears amounting to 5% above the base interest rate starting from the payment due date. If the work is accepted in parts, then a proportionate partial payment is due upon the acceptance of each part.
3. If the execution of the order is extended over a longer period (> 2 months) or if the order volume exceeds € 10,000, then, unless otherwise agreed in a written form, appropriate instalment payments are to be made, namely 1/3 of the total remuneration when the order is placed, 1/3 after the completion of 50% of the work, 1/3 after the order delivery.
4. Restraint of payments or offsetting of any Client's counterclaims is not permitted. The Contractor is not obliged to make any further deliveries of the current orders until payment of due invoice amounts including interest on arrears is settled. If the Client is in arrears with the payment of an invoice, all his liabilities become due immediately and the Contractor can demand cash payment for the outstanding deliveries by discontinuing the term of payment before delivery of the goods.
5. All prices include VAT.
§5 Third-party rights and freedom of scope
1. It is affirmed that the Client is entitled to use all templates and materials provided to ALPEIN Software. In particular, this applies to computer data, source texts and images provided. If, on the contrary to this assurance, Client is not entitled to use these templates and materials, the Client exempts ALPEIN Software from all claims for compensation established by the third parties.
2. The contract is executed on the basis of freedom of scope. Complaints regarding the freedom of scope or technical implementation are excluded. If the Client demands the changes during or after production period, the Client shall bear the additional costs. These are calculated on a timely and expenditure basis; ALPEIN Software retains the right to demand the remuneration for work that has been already commenced for the Client.
§6 Copyright and rights of use
1. Every contract concluded with ALPEIN Software is a copyright contract, which grants right of use for the work which has been commissioned.
2. All drafts, prototypes and finished works are subject to copyright law. The provisions of the Copyright Act also apply to be stipulated, even if the required threshold of originality pursuant to § 2 UrhG is not achieved.
3. According to §39 UrhG, the drafts and software products are not allowed to be changed either in the original or in the draft version without an expressed consent of ALPEIN Software. Any imitation or copy - even of parts - is not permitted. A violation of this provision entitles ALPEIN Software to demand a contractual penalty amounting to the sum of the doubled remuneration.
4. ALPEIN Software transfers the relevant rights of use for the draft to the Client, who may use them for any purpose. Unless otherwise agreed in a written form, only the simple right of use pursuant to §31 UrhG is transferred to the Client.
5. Ownership or rights of use are only transferred after full payment of the remuneration. A transfer/resale of the rights of use to third parties requires the written agreement from ALPEIN Software and can only take place after the complete payment of the remuneration for the rights of use by the Client.
6. According to §13 UrhG, ALPEIN Software has the right to be named as the author on the copies of works (also websites), even if the rights of use were transferred / resold to third parties. A violation of this right entitles Alpein Software to receive compensations. Without proof of a higher damage the compensation amounts to 50% of the agreed remuneration. The right to claim higher compensations upon the proof remains unaffected.
7. The sources used for the creation of prototypes, drafts or software products are expressly not the subject matter of the contract and, therefore, they remain the property of ALPEIN Software in any case.
8. The publication of copies of the sources is carried out at the discretion of ALPEIN Software. The publication is not expressly assured but may take place on the individual basis. Copies of the source data are in accordance with the original and provided 'as they are'. This implies that ALPEIN Software provides no warranty with regard to functionality, compatibility or integrity. As the Contractor, ALPEIN Software is obliged to work diligently and to the best of its knowledge when executing the contract. No assurances are given with regard to certain configuration features; the contract is executed on the basis of freedom of scope.
1. ALPEIN Software is obliged to carry out the order with the greatest possible diligence, in particular, this relates to the maintenance and use of templates, documents, materials, etc. provided to the Contractor. ALPEIN Software is liable for damages caused through intent and gross negligence. Compensation exceeding the material value is excluded.
2. In the case of data transmission via the Internet, ALPEIN Software shall neither be liable for data damage caused by the data transfer (damaged files), viruses or improper further processing (conversion or coding errors), nor for any consequential damage resulting therefrom. This applies in particular to any transfers via e-mail.
3. By the approval of drafts, prototypes or finished products by the Client, the Client accepts the responsibility for the correctness of texts and images. ALPEIN Software shall not be liable for any drafts, texts or finished products that were approved by the customer.
4. ALPEIN Software is not liable for the admissibility and registrability of the work under competition and trademark law. Unless otherwise agreed in a written form, the Client shall be responsible for the examination.
5. If ALPEIN Software only supplies data for further processing, ALPEIN Software shall only be liable until it is handed over. The Client is responsible for checking the data and approving it before passing it over to third parties for further processing within the scope of the user agreement or before processing the data himself. This transfer is the responsibility of the Client. ALPEIN Software is not liable for damage caused by the use of this data or damages occurred in a production process commissioned by the customer.
6. Complaints of any kind must be made in a written form and handed over to ALPEIN Software within 14 days of delivery of the work. Thereafter, the work is deemed to be accepted free of defects.
§8 Search Engine Entry
1. When registering a website / URL with search engines or Internet directories within the scope of a contract with ALPEIN Software, ALPEIN Software cannot guarantee that the registered page will be included in all search engines / Internet directories. It is the responsibility of the operators of the respective search engine to decide whether and when the page will be registered in the search engine. The right to claim to remuneration by ALPEIN Software remains unaffected by this.
§9 Venue of Contractual Fulfillment and Settlement of Disputes
1. Place of fulfilment for delivery and payment is the registered office of the Contractor.
2. All legal disputes arising from the contractual relationship regarding the validity of the contract shall be settled exclusively by the court, which is responsible for the area, where the registered office of the Contractor is located. German law shall apply to the legal relationships as well as to the General Terms and Conditions.
§10 Severability Clause
1. If the nullity or illegality of any provision of these General Terms and Conditions, also occurring due to amendments to the law, is determined by the court, the legal validity of the remaining contractual provisions shall not be affected thereby. Instead of the invalid provision, a provision, which most closely corresponds to the meaning of the invalid provision, shall apply and considered as effective. This also concerns regulatory gaps.
As of 01.05.2018