1 Validity of the contractual terms and conditions
(1) These general terms and conditions apply to all contracts for individual programming services and software licenses between 247FactoryNet GmbH (hereinafter referred to as 247FactoryNet) and customers.
(2) These terms and conditions shall have exclusive validity. Deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract unless 247FactoryNet expressly agrees to their validity in writing.
(3) Separate contracts shall be concluded for services of other types (e.g. software maintenance, training, courses or the simple installation of software).
2 Subject matter of the contract, scope of services
The subject of these contractual terms is the individual adaptation of the software modules named in the contract by 247FactoryNet to the needs and/or hardware of the customer.
(2) The entire 247FactoryNet software is based on the 247NetKit technology kit. There is explicitly no legal claim to the source code of the 247NetKit technology and its use or transfer.
(3) The scope of the ordered programming services is specified in the contract form.
3 Conclusion of contract
247FactoryNet presents its services on its website and in service descriptions. This information is subject to change and non-binding and does not constitute an offer in the legal sense.
4 Exemption
Should the software/programs of third parties provided by the customer result in an infringement of the rights of other third parties, the customer hereby indemnifies 247FactoryNet from any claims by these third parties.
5 Default
(1) Reminders and setting of deadlines must be in writing to be effective.
(2) In case of default of payment and unsuccessful reminder, the contractor shall be entitled to terminate the contract without notice and/or to stop all work, to deactivate access to any solutions provided as well as to claim for the damage incurred.
6 Acceptance
(1) Acceptance shall be declared at the latest 10 banking days after handover – possibly with conditions – provided that the outstanding defects do not exceed the following numbers:
(a) The customer is obligated to immediately notify 247FactoryNet in writing if deviations from the contractually specified requirements become known to him during the acceptance test.
(b) Detected defects of the service or partial service to be accepted shall be differentiated according to the following defect classes:
Defect class 1 / very serious deviation
The desired function cannot be executed or system is not available (e.g.: Program crash, data destruction or loss or search function is not given).
Error class 2 / severe deviation
The desired function can be executed, but the results are incorrect or hinder/damage the system (e.g. data loss, but recovery is possible without reload or sorting of results is not correct).
Error class 3 / medium deviation
The desired function can be executed with minor difficulties (e.g. unexpected output, cumbersome function or incorrect function of a non-core function, like a 0 star rating is possible).
Error class 4 / minor deviation
The desired function can be executed almost without problems, but the function is not user-friendly, or the function can be executed, but there are ideas for improvement (e.g. message text difficult to understand or background of the rating has wrong color). Any changes requested by the Customer after the acceptance period due to current, changed requirements, a new user segment, changed software usage scenarios and/or a significantly increased number of users or content structure will be implemented after additional commissioning.
(c) The Customer is only entitled to refuse acceptance due to errors of error class 1. Errors of error classes 2, 3 and 4 do not prevent the acceptance of the service. The quantification of the open defects at acceptance (oF) to be accepted per defect class (FK) shall be as follows: FK1 – 0 oF / FK2 – 3 oF / FK3 – 20 oF / FK4 – 40 oF.
(2) The overall acceptance shall be deemed to have been declared if the Customer fails to carry out the inspection for acceptance within a period of 10 banking days, fails to declare acceptance or refuses acceptance without reason or if the Customer uses the provided work productively beyond the trial operation.
7 Remuneration, payment
(1) The remuneration results from the contract. The prices shown by 247FactoryNet are exclusive of statutory value added tax.
(2) Travel time shall be charged as working time. Travel and accommodation costs are based on the information in the offer – if not listed separately in accordance with the applicable legal and fiscal regulations – and are also to be remunerated.
(3) The remuneration is due for payment without deduction after completion ready for acceptance and receipt of the invoice issued by 247FactoryNet by the customer.
(4) The customer may only offset claims that are undisputed by 247FactoryNet or have been legally established, unless 247FactoryNet has expressly agreed to the offset with disputed claims or claims that have not been legally established. The same applies to the assertion of any asserted right of retention as well as any asserted right of reduction.
8 Liability
(1) 247FactoryNet is not liable for negligent breaches of duty, provided that these do not concern essential contractual duties or damages from injury to life, body or health. In case of negligent breach of a material contractual obligation, liability is limited to the foreseeable damage typical for the contract.
(2) This also applies in favor of the legal representative, the executive employees or the vicarious agents of 247FactoryNet.
(3) Essential contractual obligations of 247FactoryNet in the sense of paragraph 1 are obligations, the fulfillment of which enable the proper execution of the contract in the first place and on whose compliance the customer regularly relies and may rely.
9 Limitation
(1) (1) The limitation period for claims and rights due to defects – regardless of the legal reason – is one year.
(2) However, the limitation period pursuant to para. 1 shall apply subject to the following proviso:
a) The limitation period generally does not apply in case of intent or fraudulent concealment of a defect or insofar as 247FactoryNet has assumed a guarantee for the quality of the services.
b) The limitation period for claims for damages also does not apply in the case of a grossly negligent breach of duty, in the case – not consisting in the provision of a defective work performance – of culpable breach of essential contractual obligations, in cases of culpably caused injury to life, limb or health or in claims under the Product Liability Act. Insofar as this provision refers to claims for damages, it shall also include claims for reimbursement of futile expenses.
(3) The limitation period for all claims for damages shall commence upon acceptance.
(4) Unless expressly stipulated otherwise, the statutory provisions on the commencement of the limitation period, suspension of expiry, suspension and recommencement of periods shall remain unaffected.
(5) The understanding provisions shall apply mutatis mutandis to claims for damages which are not related to a defect.
(6) A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
10 Rights of use
(1) The software (program and associated documentation) is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyrights to the software as well as to other objects which 247FactoryNet provides or makes accessible to the customer within the scope of the contract initiation and implementation shall be the exclusive property of 247FactoryNet in the relationship between the contractual partners. Copyright notices, trademarks and product labels may not be deleted, changed or suppressed.
(2) Upon full payment of the agreed fee, 247FactoryNet grants the customer the non-exclusive, transferable, temporally and spatially unrestricted right to use, reproduce, edit, decompile and exploit the software in accordance with this contract.
(3) The right to reproduce the Software is limited to its installation to fulfill the purpose of use and to a reproduction necessary for loading, displaying, running, transferring and storing the Software as well as to the right to make a backup copy if this is necessary to secure future use.
(4) The right to edit the Software shall initially include edits aimed at maintaining or restoring the agreed functionality of the Software and shall otherwise be limited to the further development of one instance of the Software. Any further processing and use, such as the creation of programs or offshoots of the Software based on the Software, as well as any processing of the library are expressly excluded.
(5) If and to the extent that the Customer does not receive the source code to the Software, the Customer shall only be entitled to decompile and reproduce the Software to the extent provided for by law. However, this shall only apply under the condition that 247FactoryNet has not made the necessary information available to the customer upon request within a reasonable period of time.
(6) The right of exploitation by the customer is limited to leasing the software to third parties as an application (Software as a Service or Application Service Providing) by means of data processing equipment under the control of the customer (e.g. servers, hard disks and central processing units).
(7) The Customer may sell or give away the Software, in particular on a permanent basis, to third parties only under the condition that the acquirer also agrees to the continued application of the terms and conditions set forth in this clause. In the event of a transfer, the customer must hand over to the acquirer all copies of the programs (including, if available, the backup copy referred to in paragraph 10) or destroy the copies not handed over and cease its own use.
(8) The Customer shall not be granted any further rights of use and exploitation of the Software. All other acts of exploitation, in particular the lending and distribution in tangible or intangible form, the use of the Software by and for third parties to an extent exceeding paragraph 10, are not permitted without the prior written consent of 247FactoryNet.
(9) Upon request and to the extent that there is a legitimate interest in doing so, the customer shall permit 247FactoryNet or a third party commissioned by it to examine whether the use of the Software is within the scope of the rights granted herein; the customer shall support 247FactoryNet in the performance of such examination to the best of its ability.
(10) If Customer violates any of the foregoing provisions, all rights of use granted under this Agreement shall immediately become invalid and shall automatically revert to 247FactoryNet. In this case, the customer shall immediately and completely discontinue the use of the software, delete all copies of the software installed on its systems, and delete any backup copy that may have been made or hand it over to 247FactoryNet. The right to assert any claims for damages remains reserved.
11 Completeness, applicable law, place of jurisdiction
(1) At the time of the conclusion of the contract, there are no further verbal or written agreements or arrangements between 247FactoryNet and the customer that concern this contract or any subject matter of the contract regulated therein.
(2) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is Munich for contracts between 247FactoryNet and customers who are merchants, legal entities under public law or special funds under public law.
(4) Should individual provisions of these Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions.
