General Delivery and Payment Terms and Conditions - Part 2
12.1 Pursuant to the License Agreement, CSB releases two versions:
- Standard Software is encompassed in the current version (“Closed Version”)
- Extended Standard Software (e.g. all software extensions according to Product Sheets) are realized in and delivered as part of the follow-up version (“Open Version”). Delivery of the follow-up version shall only be effected upon receipt of payment-in-full of the Standard Software, delivered Hardware and performed services (consulting, installation)
12.2 The scope of coverage and functionality of the Standard Software are described in the product specifications as exhibited in the offer made to Licensee by CSB. Licensee accepts the scope of coverage of CSB applications that is exclusively specified in the product specifications and acknowledges its fitness for his purposes.
12.3 Delivery of the software is carried out exclusively via remote data transmission (modem).
12.4 For tasks specified by Licensee that cannot be covered by Standard Software, CSB shall develop real, practical, and reasonable solutions (Extended Standard Software) according to the state of the art at the time of contract closing. Licensee shall produce target specifications accordingly. Properties of Extended Software shall only be deemed as agreed upon if such agreement has been concluded in writing. Individually developed programs will be demonstrated to Licensee and have to be confirmed in writing as being in conformance with agreed-upon properties by Licensee. In the event that individually developed programs notwithstanding request are not confirmed correspondingly, but are utilized anyhow, they will be deemed to be confirmed four (4) weeks after delivery, in so far as no significant program defects are reported to CSB and such confirmation is expressly declined with advice of such defects. In order to limit possible defects, Licensee has particular obligations to cooperate and inspect. Licensee agrees to install the Open Version in a separate directory. Licensee agrees to visualize all critical procedures and business processes in the Workflow Management System, and to compare the results of the Open and Closed Version. CSB shall retain all rights to developed programs, with the exception of the following provisions.
12.5 Software shall be released in German and/or English. Not all documentation, particularly manual and help texts, are available in the official country language. Purchaser/Licensee therefore is provided with a full software documentation (excluding interface description) in either German or English.
13. Acceptance Procedure
Pursuant to the agreements of this contract, the acceptance procedure is to be carried out according to the following regulations:
13.1 If a contractually detailed plan for the acceptance procedure is available, it shall be carried out directly before production run.
13.2 In case of errors or deficiencies arising during the acceptance procedure, these shall be recorded and divided into two categories: Category A: Errors impending production run Category B: Deficiencies not considerably impairing production run
13.3 Errors of category B shall not prevent acceptance. Purchaser/Licensee shall immediately declare acceptance. These errors shall be resolved by the project consultants and hotline employees of CSB in the time after acceptance by means of appropriate process controls. After the resolving of an error of category A, acceptance shall be declared within fourteen (14) days.
13.4 If the project or the individual project steps have been in production run for more than six weeks, the project or sub-project shall be considered accepted. Any recorded errors or deficiencies shall be dealt with in line with the maintenance contract.
14. Retention of Title
14.1 CSB shall retain title of the Purchased Object until the entire purchasing price has been paid. CSB shall retain title of Purchased Object also after full payment of the purchasing price has been made until all supplementary claims towards Purchaser, incurred with regard to Purchased Object as a result of repair work, replacement deliveries, or other services, have been paid in full. Where the value of the existing securities for CSB exceeds the claims by over twenty (20) percent on a long term basis, CSB shall free such securities accordingly by choice.
14.2 In the event of default of payment, CSB shall be entitled to claim issue of the Purchased Object; Purchaser shall immediately return the object. All costs incurred by recall and processing of the Purchased Object are at the expense of Purchaser/Licensee. During the time of retention of title, Purchaser/Licensee additionally is obliged to safeguard the Purchased Object’s mint condition, and to advise CSB immediately, in such event that third-parties, e.g. in the case of execution, claim the Purchased Object. If Purchaser/Licensee refuses return of the delivery item, CSB is entitled, after a further deadline of seven (7) weekdays, to technically disable the operability of the software for the period of payment default.
14.3 Licensee understands that sub-lease of the Software and sale to third party of the Purchased Object prior to full payment may not be effected without the prior written permission of CSB. In any such event the claim of Purchaser/Licensee out of such sale shall be assigned irrevocably to CSB.
15. Validation of these Terms and Conditions
15.1 The Terms and Conditions apply, unless otherwise agreed upon in writing by both Parties. In no event shall any terms and conditions by Purchaser/Licensee apply.
15.2 Any modification to or deviation of the content of this Agreement shall not be valid, unless such modification or deviation has been confirmed in writing by CSB.
15.3 In addition, the Terms and Conditions of Lease and Maintenance, as well as the price list for Service, Delivery and Performance of CSB apply.
16. Arbitrator’s Award Agreement
Should differences arise between the contractual parties concerning the delivery and services due on behalf of CSB or the degree of fulfillment of owed deliveries and services that cannot be resolved by the parties themselves, an arbitrator’s award by an authorized referee for IT matters shall be required as far as one of the party’s requests. This does not apply if the parties disagree on the due date of the deliveries and services. Each party may initiate an arbitrator’s award by informing the other party in writing. The arbitrator’s award is binding for both parties and shall be appointed by the IHK Aachen (Chamber of Industry & Commerce Aachen) if the parties cannot agree on an arbitrator within three days after receipt of said written letter. The arbitrator has to grant due process of law to both parties. The arbitrator shall, as far as is disputed between the two parties, determine which deliveries and services are due by CSB in line with the underlying contracts and which of these services and deliveries have already been performed by CSB. Should the arbitrator determine that CSB has not entirely fulfilled its contractual obligations and that these are due, he shall determine a suitable period in which CSB shall have the opportunity to perform the deliveries and services that have been ascertained by the arbitrator as unfulfilled. Upon CSB’s request, at the latest upon expiration of said period, the same arbitrator shall determine whether CSB has fulfilled his contractual due deliveries and services, should this still be a matter of dispute between the parties. Should the arbitrator determine that CSB has not yet entirely fulfilled its contractual obligations, he shall determine a suitable period of grace in which CSB shall have the opportunity to perform the deliveries and services that have been ascertained by the arbitrator as unfulfilled. Upon CSB’s request, at the latest upon expiration of said period of grace, the same arbitrator shall determine whether CSB has fulfilled his contractual due deliveries and services, should this still be a matter of dispute between the parties. Should the arbitrator again determine that CSB has not entirely fulfilled his contractual obligations, §§ 281, 323 BGB (German Civil Code) apply and the licensee shall waive any requirement to fix further period of time. In the event of an arbitrator’s award, compensation cannot be enforced prior to this time. The findings of the arbitrator are binding for both parties. Costs for the arbitrator’s award shall be borne by the parties in line with the principles of section §§ 91, 92 of the ZPO (German Civil Process Order). The arbitrator shall make a binding decision as to the payment of the involved costs.
17. Applicable Law, Place of Fulfillment and Jurisdiction, Severability Clause
17.1 The contractual obligations of both parties are applicable to German Law exclusively. However, German international civil law applies exclusively for § 27 para. 1 and 3 and § 34 EGBGB.
17.2 Place of fulfillment and jurisdiction for all matters arising from current and future business dealings of both parties, for any reason, is Düsseldorf, Germany. However, CSB reserves the right to pursue claims at a valid jurisdiction of the Purchaser/Licensee.
17.3 Should individual provisions of this agreement become completely or partially invalid or loose their enforceability, the validity of the remaining agreement will not be affected. In such a case, CSB and Purchaser/Licensee shall replace the invalid clause with a valid clause that bears closest resemblance to the economic purpose of the invalid clause.
CSB-System AG, An Fürthenrode 9-15, 52511 Geilenkirchen, GermanyVersion January 01, 2009