Terms and Conditions
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Terms and Conditions
General Terms and Conditions for the Purchase and Use of Standard Software from HAIBERG GmbH
(hereinafter HAIBERG) and for Training and Software Maintenance.
1. HAIBERG grants the customer, upon full payment of the remuneration owed, a non-exclusive, perpetual, non-transferable right of use to the subject matter of the contract (hereinafter "Licence"). All other rights, in particular proprietary, copyright and trademark rights to the software and the documentation, belong exclusively to HAIBERG, insofar as software components created by third parties are not concerned.
2. The customer acquires the software in order to use it permanently in his own business for his own purposes (simple right of use). All data processing equipment (e.g. hard disks and central processing units) onto which the programmes are copied or transferred, in whole or in part, temporarily or permanently, must be in the direct possession/ownership of the customer. The possibility of use may be available at a maximum of the contractually agreed number of workstations. The customer may create backup copies of the programmes necessary for secure operation. Backup copies must, where technically possible, be marked with the copyright notice of the original data medium. Copyright notices may not be deleted, altered or suppressed.
3. All other acts of exploitation, in particular rental, lending and distribution in tangible or intangible form, use of the software by and for third parties (e.g. outsourcing, data centre activities, application service providing) are not permitted without the prior written consent of HAIBERG.
4. The software is delivered in full, i.e. with all additional modules or functions available at the current time. In accordance with the contractual provisions, the customer shall install or activate the software at a maximum of the contractually agreed number of workstations with the type and number of contractually agreed additional modules or functions. Should the customer require further licences or additional modules, he may only install or activate them independently if he informs HAIBERG immediately, promptly pays the licence fees due to HAIBERG in accordance with the invoice and also acknowledges the provisions of the General Terms and Conditions for these.
5. Transfer of the software (in whole or in part) to a third party requires the written consent of HAIBERG and presupposes that the third party declares in writing to HAIBERG that he will comply with the rules of this contract, in particular Section III. Before engaging any third parties, the customer must obtain from the third party a written declaration that the third party undertakes directly to HAIBERG to comply with the rules set out in Sections III and XIII.
6. The customer may only modify, translate, reverse engineer, decompile or disassemble the software provided, the associated documentation and information with the prior written consent of HAIBERG. All protective notices contained in the software or on the documentation and data media provided, in particular copyright and trademark notices, serial numbers and other features serving to identify the software, may under no circumstances be removed or altered.
7. The customer ensures compliance with the aforementioned rights of use and demonstrates this to HAIBERG upon request. In the event of a breach, HAIBERG may revoke all the customer's rights of use to the software without the customer being entitled to reimbursement claims against HAIBERG. Alternatively, HAIBERG may, at its own discretion, demand the licence fees due for the unauthorised use.
8. The customer may only decompile interface information of the programmes within the scope of Section 69e of the German Copyright Act (UrhG) and only after he has informed HAIBERG in writing of his intention and requested the necessary information with at least two weeks' notice. Before engaging any third parties, the customer shall obtain from the third party a written declaration whereby the third party undertakes directly to HAIBERG to comply with the usage and confidentiality provisions contained in these General Terms and Conditions.
IV. Performance Time, Delays
1. Information on delivery and performance dates is non-binding unless it has been confirmed in writing by HAIBERG as binding. The agreement of a fixed performance date is subject to the proviso that HAIBERG receives the services of its respective upstream suppliers and subcontractors in a timely manner and in accordance with the contract.
2. Delivery and performance periods shall be extended by the period during which the customer is in default of payment under the contract, and by the period during which HAIBERG is prevented from delivering or performing due to circumstances for which HAIBERG is not responsible, as well as by a reasonable start-up period after the end of the
impediment. These circumstances also include force majeure, industrial action and the absence or defective cooperation of the customer.
3. If the contracting parties subsequently agree on further services which affect agreed deadlines, these deadlines shall be extended by a reasonable period.
4. Reminders and the setting of deadlines by the customer require written form to be effective. A grace period must be reasonable.
V. Contractual Commitment and Termination of Contract
1. The termination of further performance (e.g. in the case of withdrawal, termination for good cause, reduction or damages in lieu of performance) must always be threatened with specification of the reason and with a deadline for rectification (usually at least four weeks) and may only be declared within two weeks after expiry of the deadline.
2. The party who is wholly or predominantly responsible for the disruption may not demand unwinding. All declarations in this context require written form to be effective.
VI. Remuneration, Payments, Default in Payment, Legal Reservations
1. Unless otherwise agreed, the agreed remuneration is due after delivery of the software (in the case of training or other services after their performance) (in the case of software maintenance for each calendar year in advance) and receipt of the invoice by the customer without deduction and payable within 14 days.
2. Travel costs, expenses, accessories and shipping costs are to be remunerated separately on a time-and-materials basis. Additional services requested by the customer (e.g. advice and support with programme installation, adaptation of the software to customer requirements) will be invoiced according to the current price list used by HAIBERG or a specific offer from HAIBERG.
3. Remuneration/prices are generally net prices plus statutory VAT.
4. The customer may only offset claims that are undisputed by HAIBERG or have been established by final court judgment. Except in the area of Section 354a of the German Commercial Code (HGB), the customer may only assign claims arising from this contract to third parties with the prior written consent of HAIBERG. The customer may only assert a right of retention with regard to the respective contract.
5. In the event that the customer falls into arrears with payments, HAIBERG is entitled to suspend or withhold further services without prejudice to further rights until the customer has made payment. Furthermore, HAIBERG may make the performance of outstanding services dependent on the customer advancing the next instalment in full. In addition, overdue payments with which the customer is in default shall be subject to default interest in accordance with Section 288 II of the German Civil Code (BGB).
6. In the event of the customer's economic inability to fulfil his obligations to HAIBERG, HAIBERG may terminate continuing obligations without notice. The customer shall inform HAIBERG early and in writing of any impending inability to pay.
7. HAIBERG reserves ownership and rights to be granted in the services until full payment of the remuneration owed. Further details are governed by Section XII.
VII. Customer's Obligations
1. The customer shall designate a responsible contact person. This person can and will make binding decisions for the customer or arrange them without delay. The contact person is available to HAIBERG for necessary information.
2. The customer shall ensure that qualified personnel are available for the deployment of the software at the latest at the time of delivery.
3. The customer shall inform HAIBERG immediately of any changes to the deployment environment.
4. The customer is obliged to have all delivery items examined immediately upon delivery by an employee in accordance with commercial law provisions (Section 377 HGB) and to give written notice of identified defects with a precise description of the fault. The customer shall thoroughly test the software and each module for usability in the specific situation before commencing operational use. This also applies to programmes which the customer receives within the scope of the warranty and software maintenance.
5. The customer must report defects in a comprehensible and detailed form, providing all information useful for defect identification and analysis. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect must be specified.
6. The customer shall take appropriate precautions in the event that the hardware or the programme does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular checking of results). It is his responsibility to ensure the operation of the programme's working environment.
7. The customer must provide the system environment necessary for the deployment of the software, such as adequately dimensioned databases or company networks, in accordance with HAIBERG's requirements. The customer is also exclusively responsible for any necessary third-party licences (e.g. database licences) and compliance with the licence conditions regarding the content of use and the number of users. Likewise, the customer is exclusively responsible for the operation and maintenance of the necessary system environment.
VIII. Defects in Quality
1. The software has the agreed quality, is suitable for the contractually presupposed or otherwise ordinary use and has the quality usual for this type. However, HAIBERG does not warrant that the software provided meets the customer's requirements and purposes or works together with other programmes or system environments or operating systems selected by him, unless this is expressly noted in the manual or service description. Functional impairments of the software that are attributable to environmental conditions, incorrect operation or to hardware and software defects in components not supplied by HAIBERG do not constitute a defect. There are no claims for defects in quality for only an insignificant deviation of HAIBERG's services from the contractual quality or usability.
2. Claims for defects also do not exist in the case of excessive or improper use, natural wear and tear, failure of system environment components, non-reproducible or otherwise non-demonstrable software errors by the customer, or in the case of damage arising from special influences which are not presupposed under the contract. This also applies in the case of subsequent alteration or repair by the customer or third parties, unless this does not make analysis and rectification of a defect more difficult.
3. In the case of defects in quality, HAIBERG may first provide supplementary performance. Supplementary performance shall be provided at HAIBERG's choice by rectifying the defect, by supplying a programme that does not have the defect, or by HAIBERG showing ways to avoid the effects of the defect. An equivalent new programme version or the equivalent previous programme version that did not contain the fault must be accepted by the customer if this is reasonable for him.
4. The customer shall support HAIBERG in fault analysis and defect rectification by describing problems that occur in concrete terms, providing HAIBERG with comprehensive information and allowing HAIBERG the time and opportunity necessary for defect rectification. HAIBERG may carry out defect rectification at its choice on site or in its own business premises. HAIBERG may also provide services by remote maintenance. The customer must provide the necessary technical prerequisites at his own expense and grant HAIBERG access to his IT system after appropriate prior notice.
5. The contracting parties agree the following fault classes and response times:
Fault Class 1: Operation-preventing defects: The fault prevents business operations at the customer's premises; no workaround is available: HAIBERG shall commence fault rectification immediately, at the latest within six hours of the fault being reported, and shall continue with determination until the fault is rectified, where reasonable also outside normal working hours (weekdays 9.00 a.m. to 5.00 p.m.).
Fault Class 2: Operation-hindering defects: The fault significantly hinders business operations at the customer's premises; however, use of the software is possible with workarounds or with temporarily acceptable restrictions or
difficulties: If the fault is reported before 10.00 a.m., HAIBERG shall commence fault rectification on the same day; if reported later, at the beginning of the next working day, and shall continue until the fault is rectified during normal working hours. HAIBERG may initially show a workaround and rectify the fault later if this is reasonable for the customer.
Fault Class 3: Other defects: HAIBERG shall commence fault rectification within one week or shall only rectify the fault with the next programme version if this is reasonable for the customer.
6. In the event of disagreement about the assignment of a fault to the classes according to para. 5, the customer may demand classification into a higher fault class. If he does not prove that his classification was correct, he must reimburse HAIBERG for the additional expenditure.
7. HAIBERG may demand additional costs arising from the software or the configuration having been altered, deployed outside the specified environment or operated incorrectly. HAIBERG may also demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. Section 254 BGB applies accordingly.
8. If HAIBERG definitively refuses supplementary performance or if this definitively fails or is unreasonable for the customer, he may withdraw from the contract in accordance with the rules of Section V or reduce the remuneration appropriately and demand damages or reimbursement of expenses in accordance with Section X.
9. These claims as well as claims for damages and reimbursement of expenses are subject to limitation in accordance with Section X.
IX. Liability
1. HAIBERG is liable in accordance with statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of HAIBERG's representatives or vicarious agents.
2. In the case of simple (i.e. not gross) negligent breaches of such contractual obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance a client regularly relies and may rely (cardinal obligations, essential contractual obligations), HAIBERG is liable in accordance with statutory provisions. In this case, however, HAIBERG's liability is limited to damage that is foreseeable and typically arising according to the type of service, and compensation for consequential damage, such as lost profit, is excluded. The same applies to grossly negligent breaches of non-essential contractual obligations committed by HAIBERG's simple vicarious agents.
4. HAIBERG is not liable for simple (i.e. not gross) negligent breaches of non-essential contractual obligations.
5. The limitations of liability and exclusions of liability in paras. 1, 2 and 3 also apply to claims arising from culpa in contrahendo, other breaches of duty and from tort. They do not apply in the case of injury to life, body or health attributable to HAIBERG or to claims under the Product Liability Act.
6. In the event of loss of data, HAIBERG is only liable for the expenditure required to restore the data if the customer has carried out proper data backup. In the case of simple negligence on the part of HAIBERG, this liability only arises if the customer carried out proper data backup immediately before the measure leading to data loss.
7. HAIBERG reserves the right to plead contributory negligence. In particular, the customer has the obligation to back up data and to defend against malicious software in accordance with the current state of the art.
X. Limitation
1. The limitation period is
a.) for claims for repayment of the purchase price from withdrawal or reduction, one year from delivery of the software, but not less than three months from submission of the effective declaration of withdrawal or reduction;
b.) for other claims arising from defects in quality, one year;
c.) for other claims for damages or reimbursement of futile expenses, one year, commencing from the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence.
2. Limitation occurs at the latest upon expiry of the maximum periods specified in Section 199 BGB.
3. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in Section X, the statutory limitation periods always apply.
4. HAIBERG's processing of a notice of defect from the customer only leads to suspension of limitation insofar as the statutory requirements for this are met; this does not result in a new commencement of limitation. Supplementary performance (replacement delivery or rectification) can only affect the limitation of the defect triggering the supplementary performance.
XI. Commencement and End of Customer's Rights / Retention of Title
1. Ownership of copies provided remains reserved until full payment of the remuneration owed. Prior to this, rights of use granted are always provisional and freely revocable by HAIBERG. The customer must immediately notify HAIBERG in writing if third parties access the goods subject to retention of title and inform the third party of HAIBERG's rights.
2. HAIBERG may revoke the rights under Section III for good cause. Good cause exists in particular if the customer does not pay the remuneration or, despite written warning, breaches Section III to a significant extent.
3. If the right of use under Section III does not arise or ends, HAIBERG may demand from the customer the return of the items provided or written assurance that they have been destroyed, as well as the deletion or destruction of all copies and written assurance that this has been done.
XII. Confidentiality
1. The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, they will therefore not assert any claims based on the absence of encryption, except insofar as encryption has been agreed in advance.
2. The contracting parties shall treat all information or information materials that become known to them directly or indirectly, orally, in writing or in any other form within the scope of the contractual relationship, designated as confidential or usually to be regarded as confidential by the nature of the matter, as confidential without time limit and use them exclusively within the scope of the services covered by this contract. Excluded from this confidentiality obligation are only such information and information materials which
a.) are already publicly known at the time they become known, i.e. readily accessible to any third party,
b.) are lawfully made accessible to a contracting party by a third party after becoming known, who is not subject to any confidentiality obligation to the other contracting party in this regard,
c.) must be communicated to an authority or other entitled third party at the request of that authority or third party,
d.) must necessarily be communicated to the respective partner's legal or tax advisers for the purpose of advice.
3. In the cases of paras. c. and d., the contracting parties shall inform each other immediately of a corresponding request and before passing on protected information.
4. The customer shall only make the subject matter of the contract accessible to employees and other third parties who require access to perform their assigned duties. He shall instruct these persons about the need for confidentiality of the items. The contracting parties shall impose a corresponding confidentiality obligation on all employees or third parties whom they engage to provide the services covered by this contract.
5. The contracting parties are aware that mutual communication will to a significant extent also take place in unencrypted electronic form (e.g. e-mail) and therefore waive the assertion of claims based on unauthorised third parties exercising illegal access to electronic communication media and thereby gaining knowledge of the aforementioned unencrypted electronically transmitted data.
6. HAIBERG stores the customer's data required for business processing in compliance with data protection regulations.
7. Upon receipt of an order, HAIBERG may name the customer for advertising purposes and, at the latest after successful completion of the services, name him as a reference customer
XIII. Training
1. Training takes place at the customer's choice at the customer's premises, in HAIBERG's business premises or at another location to be determined in consultation with the customer. In the case of training at the customer's premises, the customer shall provide appropriate premises and technical equipment in consultation with HAIBERG.
2. HAIBERG may cancel a training date for good cause. HAIBERG shall notify the customer of the cancellation of a date in good time and offer alternative dates.
3. In the event of justified dissatisfaction on the part of the customer, HAIBERG has the opportunity to remedy the situation. Otherwise, Section V applies.
XIV. Software Maintenance
1. Insofar as the customer has opted for a software maintenance agreement or a corresponding maintenance/care agreement has already been concluded in other contracts, he is entitled, upon payment of the agreed remuneration in accordance with the price and conditions list, to request the services listed below for the maintenance software. The conclusion of a software maintenance agreement presupposes the acquisition of a licence for the software in accordance with HAIBERG's General Contractual Terms. The services described below are understood as services that go beyond the warranty for defects in HAIBERG's software products within the scope of the software transfer agreement. Defect rectification within the warranty period, also in connection with the services offered here, is free of charge.
2. HAIBERG provides the customer from time to time with certain new versions of the maintenance software in order to keep it up to date, prevent malfunctions and resolve known application problems. New versions and new releases are made available to the customer on media deemed suitable by HAIBERG. The installation of these supplements and further developments is generally to be carried out by the customer. HAIBERG is prepared to carry out this installation for the customer against a separate agreement in accordance with the currently valid price list.
3. The provision of new products or additional functions offered separately by HAIBERG or obligations to further develop the maintenance software are not part of the maintenance services, unless expressly agreed otherwise. HAIBERG makes the new software versions available to the customer. The customer shall examine new versions immediately and give immediate notice of identifiable defects, for which Section 377 HGB applies accordingly. The examination of new versions must always take place in a suitable test environment. Only after a successful test is the new programme version installed in the live system. With regard to defects, the relevant provisions of the General Terms and Conditions apply. Insofar as HAIBERG has made a new version available to the customer, it will also maintain the previous version for a reasonable transition period.
4. Further services for software updates and release changes that are not directly connected with them are not included in HAIBERG's scope of services. Faults caused by a new operating system version, a new database system or otherwise by the customer's general operating system administration are not covered by the maintenance agreement. If the customer changes the source or software systems on which the HAIBERG software products to be maintained are based, the resulting necessary adaptations of the HAIBERG software products are not covered by the maintenance agreement.
5. HAIBERG shall immediately initiate appropriate measures on the basis of the circumstances communicated by the customer in order first to locate the cause of the malfunction and then immediately initiate measures to rectify the malfunctions.
6. In the event that the problems reported by the customer cannot be rectified within the scope of the maintenance agreement by remote maintenance or hotline, an appointment on site will be arranged if necessary. The customer shall bear the costs of this appointment if remote maintenance did not lead to a solution to the problem for reasons for which he is responsible.
7. HAIBERG may demand additional remuneration if the customer requests assistance necessitated by failure to fulfil a cooperation obligation (cf. Section VII) or made necessary by incorrect operation or an incorrect software environment. HAIBERG's current price list shall then apply.
8. The customer shall only designate to HAIBERG technically and professionally appropriately qualified personnel who are internally entrusted with processing enquiries from users of the maintenance software. Only this personnel designated to HAIBERG will direct enquiries to the support team.
9. The contract initially has a term of 12 months from signature of the contract or acceptance of the order by HAIBERG, at the earliest from installation of the software. Partial deliveries and corresponding pro rata billing of the agreed maintenance remuneration are possible. The contract is always extended for a further 12 months unless one contracting party notifies the other contracting party by registered letter, observing a notice period of three months before the end of the respective contract year, that an extension is not to take place (notice of non-renewal). Receipt by the other contracting party is decisive for compliance with the deadline for submitting the notice of non-renewal. In addition, the contract may be terminated by the provider and customer without observing a notice period for good cause. Declarations of termination are only effective in writing.
10. The customer remunerates the maintenance services by means of a running flat rate. The maintenance remuneration is owed in advance in the billing period and is invoiced by HAIBERG to the customer at the beginning of the billing period. The maintenance remuneration is shown in the maintenance certificate.
XV. Final Provisions
1. Amendments and supplements to this contract require written form to be effective. To comply with the written form requirement, transmission in text form, in particular by fax or e-mail, is also sufficient.
2. The customer agrees that HAIBERG stores and processes customer data in the course of its business activities. HAIBERG observes the requirements of data protection law.
3. This contract and the legal relationships arising from it between the contracting parties are governed exclusively by the law of the Federal Republic of Germany, excluding all provisions of German Private International Law. The application of the law of a third state, including its provisions on conflict of laws, as well as the application of the UN Convention on Contracts for the International Sale of Goods are expressly excluded.
4. The place of jurisdiction in relation to a merchant, a legal person under public law or a special fund under public law is HAIBERG's registered office. HAIBERG may also sue the customer at his registered office.
5. The customer shall independently observe import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the customer shall bear any customs duties, fees and other charges. The customer shall independently handle legal or official procedures in connection with cross-border deliveries or services, unless expressly agreed otherwise.
6. The customer assumes an obligation to examine and give notice of defects in accordance with Sections 377 HGB in respect of all deliveries and services from HAIBERG.
7. Should individual provisions of this contract, including these general terms and conditions, be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. The wholly or partially invalid provision shall be replaced by a provision whose economic result comes as close as possible to that of the invalid provision.
8. The contracting parties agree that, in the case of all disputes arising from or in connection with this contract, contract extensions or supplements which they cannot resolve between themselves, they will call upon the arbitration body of the German Society for Law and Informatics (www.dgri.de/) in order to resolve the dispute in whole or in part, provisionally or finally, in accordance with its then valid arbitration rules in the version valid at the time of initiation of arbitration proceedings. Limitation for all claims arising from the disputed facts is suspended from the arbitration application until the end of the arbitration proceedings; Section 203 BGB applies accordingly.
9. In the event of differences between this contract and a translation of this contract, the German version of the contract shall prevail.
Braunschweig, September 2026
I. Scope of Application
1. The following contractual and licence terms for all offers, orders, deliveries and services from HAIBERG apply to all present and future business relationships concerning the sale and use of HAIBERG software, its maintenance, implementation and training. Customer within the meaning of these contractual terms means entrepreneurs, i.e. natural or legal persons or partnerships with legal capacity with whom HAIBERG enters into a business relationship and who act in the exercise of a commercial or independent professional activity.
2. By installing the software, the customer agrees to these licence terms and a contract is concluded between the customer and HAIBERG which incorporates these terms.
3. HAIBERG supplies the software on the basis of these General Terms and Conditions and the applicable price and conditions lists. The customer's acceptance of HAIBERG's delivery is deemed to constitute acknowledgement of these General Terms and Conditions and waiver of any conflicting terms. This also applies if HAIBERG has not expressly objected to conflicting terms and conditions.
4. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing.
II. Offer/Conclusion of Contract and Scope of Services
1. HAIBERG's offers are subject to change and non-binding unless the offer is designated as binding in writing. A legal obligation only arises through a contract signed by both parties or written order confirmation by HAIBERG.
2. The subject matter of this contract is the supply of standard software, the granting of rights of use, the maintenance of the standard software, where applicable the individual adaptation of the software to the customer's requirements, and training measures.
3. The customer has verified before conclusion of the contract that the specification of the software corresponds to his wishes and needs. He is aware of the essential functional characteristics and conditions.
4. The software corresponds to the descriptions in the documentation; HAIBERG does not owe any functionality of the software beyond this. Representations in the documentation, in test programmes, in product and project descriptions do not constitute a guarantee of quality. All product properties or guarantees beyond the documentation require a written declaration from HAIBERG.
5. Subsequent changes to the scope of services require written agreement or written confirmation by HAIBERG.
6. The customer receives the software consisting of the machine programme and the user manual. Unless otherwise agreed, the programme and manual are delivered on CD-ROM. The customer has no entitlement to be provided with the source programme.
7. The software is installed and put into operation by the customer. HAIBERG may carry out the installation in place of the customer. All support services from HAIBERG at the customer's request, in particular deployment preparation, installation and configuration, instruction, training and consultancy, shall be remunerated on a time-and-materials basis unless otherwise agreed.
8. Maintenance services on the software beyond defect rectification within the warranty period shall only be provided on the basis of a separate software maintenance agreement to be concluded. Outside such a maintenance agreement, HAIBERG is not obliged to create updates for the future.
1. HAIBERG grants the customer, upon full payment of the remuneration owed, a non-exclusive, perpetual, non-transferable right of use to the subject matter of the contract (hereinafter "Licence"). All other rights, in particular proprietary, copyright and trademark rights to the software and the documentation, belong exclusively to HAIBERG, insofar as software components created by third parties are not concerned.
2. The customer acquires the software in order to use it permanently in his own business for his own purposes (simple right of use). All data processing equipment (e.g. hard disks and central processing units) onto which the programmes are copied or transferred, in whole or in part, temporarily or permanently, must be in the direct possession/ownership of the customer. The possibility of use may be available at a maximum of the contractually agreed number of workstations. The customer may create backup copies of the programmes necessary for secure operation. Backup copies must, where technically possible, be marked with the copyright notice of the original data medium. Copyright notices may not be deleted, altered or suppressed.
3. All other acts of exploitation, in particular rental, lending and distribution in tangible or intangible form, use of the software by and for third parties (e.g. outsourcing, data centre activities, application service providing) are not permitted without the prior written consent of HAIBERG.
4. The software is delivered in full, i.e. with all additional modules or functions available at the current time. In accordance with the contractual provisions, the customer shall install or activate the software at a maximum of the contractually agreed number of workstations with the type and number of contractually agreed additional modules or functions. Should the customer require further licences or additional modules, he may only install or activate them independently if he informs HAIBERG immediately, promptly pays the licence fees due to HAIBERG in accordance with the invoice and also acknowledges the provisions of the General Terms and Conditions for these.
5. Transfer of the software (in whole or in part) to a third party requires the written consent of HAIBERG and presupposes that the third party declares in writing to HAIBERG that he will comply with the rules of this contract, in particular Section III. Before engaging any third parties, the customer must obtain from the third party a written declaration that the third party undertakes directly to HAIBERG to comply with the rules set out in Sections III and XIII.
6. The customer may only modify, translate, reverse engineer, decompile or disassemble the software provided, the associated documentation and information with the prior written consent of HAIBERG. All protective notices contained in the software or on the documentation and data media provided, in particular copyright and trademark notices, serial numbers and other features serving to identify the software, may under no circumstances be removed or altered.
7. The customer ensures compliance with the aforementioned rights of use and demonstrates this to HAIBERG upon request. In the event of a breach, HAIBERG may revoke all the customer's rights of use to the software without the customer being entitled to reimbursement claims against HAIBERG. Alternatively, HAIBERG may, at its own discretion, demand the licence fees due for the unauthorised use.
8. The customer may only decompile interface information of the programmes within the scope of Section 69e of the German Copyright Act (UrhG) and only after he has informed HAIBERG in writing of his intention and requested the necessary information with at least two weeks' notice. Before engaging any third parties, the customer shall obtain from the third party a written declaration whereby the third party undertakes directly to HAIBERG to comply with the usage and confidentiality provisions contained in these General Terms and Conditions.
IV. Performance Time, Delays
1. Information on delivery and performance dates is non-binding unless it has been confirmed in writing by HAIBERG as binding. The agreement of a fixed performance date is subject to the proviso that HAIBERG receives the services of its respective upstream suppliers and subcontractors in a timely manner and in accordance with the contract.
2. Delivery and performance periods shall be extended by the period during which the customer is in default of payment under the contract, and by the period during which HAIBERG is prevented from delivering or performing due to circumstances for which HAIBERG is not responsible, as well as by a reasonable start-up period after the end of the
impediment. These circumstances also include force majeure, industrial action and the absence or defective cooperation of the customer.
3. If the contracting parties subsequently agree on further services which affect agreed deadlines, these deadlines shall be extended by a reasonable period.
4. Reminders and the setting of deadlines by the customer require written form to be effective. A grace period must be reasonable.
V. Contractual Commitment and Termination of Contract
1. The termination of further performance (e.g. in the case of withdrawal, termination for good cause, reduction or damages in lieu of performance) must always be threatened with specification of the reason and with a deadline for rectification (usually at least four weeks) and may only be declared within two weeks after expiry of the deadline.
2. The party who is wholly or predominantly responsible for the disruption may not demand unwinding. All declarations in this context require written form to be effective.
VI. Remuneration, Payments, Default in Payment, Legal Reservations
1. Unless otherwise agreed, the agreed remuneration is due after delivery of the software (in the case of training or other services after their performance) (in the case of software maintenance for each calendar year in advance) and receipt of the invoice by the customer without deduction and payable within 14 days.
2. Travel costs, expenses, accessories and shipping costs are to be remunerated separately on a time-and-materials basis. Additional services requested by the customer (e.g. advice and support with programme installation, adaptation of the software to customer requirements) will be invoiced according to the current price list used by HAIBERG or a specific offer from HAIBERG.
3. Remuneration/prices are generally net prices plus statutory VAT.
4. The customer may only offset claims that are undisputed by HAIBERG or have been established by final court judgment. Except in the area of Section 354a of the German Commercial Code (HGB), the customer may only assign claims arising from this contract to third parties with the prior written consent of HAIBERG. The customer may only assert a right of retention with regard to the respective contract.
5. In the event that the customer falls into arrears with payments, HAIBERG is entitled to suspend or withhold further services without prejudice to further rights until the customer has made payment. Furthermore, HAIBERG may make the performance of outstanding services dependent on the customer advancing the next instalment in full. In addition, overdue payments with which the customer is in default shall be subject to default interest in accordance with Section 288 II of the German Civil Code (BGB).
6. In the event of the customer's economic inability to fulfil his obligations to HAIBERG, HAIBERG may terminate continuing obligations without notice. The customer shall inform HAIBERG early and in writing of any impending inability to pay.
7. HAIBERG reserves ownership and rights to be granted in the services until full payment of the remuneration owed. Further details are governed by Section XII.
VII. Customer's Obligations
1. The customer shall designate a responsible contact person. This person can and will make binding decisions for the customer or arrange them without delay. The contact person is available to HAIBERG for necessary information.
2. The customer shall ensure that qualified personnel are available for the deployment of the software at the latest at the time of delivery.
3. The customer shall inform HAIBERG immediately of any changes to the deployment environment.
4. The customer is obliged to have all delivery items examined immediately upon delivery by an employee in accordance with commercial law provisions (Section 377 HGB) and to give written notice of identified defects with a precise description of the fault. The customer shall thoroughly test the software and each module for usability in the specific situation before commencing operational use. This also applies to programmes which the customer receives within the scope of the warranty and software maintenance.
5. The customer must report defects in a comprehensible and detailed form, providing all information useful for defect identification and analysis. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect must be specified.
6. The customer shall take appropriate precautions in the event that the hardware or the programme does not work properly in whole or in part (e.g. through data backup, fault diagnosis, regular checking of results). It is his responsibility to ensure the operation of the programme's working environment.
7. The customer must provide the system environment necessary for the deployment of the software, such as adequately dimensioned databases or company networks, in accordance with HAIBERG's requirements. The customer is also exclusively responsible for any necessary third-party licences (e.g. database licences) and compliance with the licence conditions regarding the content of use and the number of users. Likewise, the customer is exclusively responsible for the operation and maintenance of the necessary system environment.
VIII. Defects in Quality
1. The software has the agreed quality, is suitable for the contractually presupposed or otherwise ordinary use and has the quality usual for this type. However, HAIBERG does not warrant that the software provided meets the customer's requirements and purposes or works together with other programmes or system environments or operating systems selected by him, unless this is expressly noted in the manual or service description. Functional impairments of the software that are attributable to environmental conditions, incorrect operation or to hardware and software defects in components not supplied by HAIBERG do not constitute a defect. There are no claims for defects in quality for only an insignificant deviation of HAIBERG's services from the contractual quality or usability.
2. Claims for defects also do not exist in the case of excessive or improper use, natural wear and tear, failure of system environment components, non-reproducible or otherwise non-demonstrable software errors by the customer, or in the case of damage arising from special influences which are not presupposed under the contract. This also applies in the case of subsequent alteration or repair by the customer or third parties, unless this does not make analysis and rectification of a defect more difficult.
3. In the case of defects in quality, HAIBERG may first provide supplementary performance. Supplementary performance shall be provided at HAIBERG's choice by rectifying the defect, by supplying a programme that does not have the defect, or by HAIBERG showing ways to avoid the effects of the defect. An equivalent new programme version or the equivalent previous programme version that did not contain the fault must be accepted by the customer if this is reasonable for him.
4. The customer shall support HAIBERG in fault analysis and defect rectification by describing problems that occur in concrete terms, providing HAIBERG with comprehensive information and allowing HAIBERG the time and opportunity necessary for defect rectification. HAIBERG may carry out defect rectification at its choice on site or in its own business premises. HAIBERG may also provide services by remote maintenance. The customer must provide the necessary technical prerequisites at his own expense and grant HAIBERG access to his IT system after appropriate prior notice.
5. The contracting parties agree the following fault classes and response times:
Fault Class 1: Operation-preventing defects: The fault prevents business operations at the customer's premises; no workaround is available: HAIBERG shall commence fault rectification immediately, at the latest within six hours of the fault being reported, and shall continue with determination until the fault is rectified, where reasonable also outside normal working hours (weekdays 9.00 a.m. to 5.00 p.m.).
Fault Class 2: Operation-hindering defects: The fault significantly hinders business operations at the customer's premises; however, use of the software is possible with workarounds or with temporarily acceptable restrictions or
difficulties: If the fault is reported before 10.00 a.m., HAIBERG shall commence fault rectification on the same day; if reported later, at the beginning of the next working day, and shall continue until the fault is rectified during normal working hours. HAIBERG may initially show a workaround and rectify the fault later if this is reasonable for the customer.
Fault Class 3: Other defects: HAIBERG shall commence fault rectification within one week or shall only rectify the fault with the next programme version if this is reasonable for the customer.
6. In the event of disagreement about the assignment of a fault to the classes according to para. 5, the customer may demand classification into a higher fault class. If he does not prove that his classification was correct, he must reimburse HAIBERG for the additional expenditure.
7. HAIBERG may demand additional costs arising from the software or the configuration having been altered, deployed outside the specified environment or operated incorrectly. HAIBERG may also demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. Section 254 BGB applies accordingly.
8. If HAIBERG definitively refuses supplementary performance or if this definitively fails or is unreasonable for the customer, he may withdraw from the contract in accordance with the rules of Section V or reduce the remuneration appropriately and demand damages or reimbursement of expenses in accordance with Section X.
9. These claims as well as claims for damages and reimbursement of expenses are subject to limitation in accordance with Section X.
IX. Liability
1. HAIBERG is liable in accordance with statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of HAIBERG's representatives or vicarious agents.
2. In the case of simple (i.e. not gross) negligent breaches of such contractual obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance a client regularly relies and may rely (cardinal obligations, essential contractual obligations), HAIBERG is liable in accordance with statutory provisions. In this case, however, HAIBERG's liability is limited to damage that is foreseeable and typically arising according to the type of service, and compensation for consequential damage, such as lost profit, is excluded. The same applies to grossly negligent breaches of non-essential contractual obligations committed by HAIBERG's simple vicarious agents.
4. HAIBERG is not liable for simple (i.e. not gross) negligent breaches of non-essential contractual obligations.
5. The limitations of liability and exclusions of liability in paras. 1, 2 and 3 also apply to claims arising from culpa in contrahendo, other breaches of duty and from tort. They do not apply in the case of injury to life, body or health attributable to HAIBERG or to claims under the Product Liability Act.
6. In the event of loss of data, HAIBERG is only liable for the expenditure required to restore the data if the customer has carried out proper data backup. In the case of simple negligence on the part of HAIBERG, this liability only arises if the customer carried out proper data backup immediately before the measure leading to data loss.
7. HAIBERG reserves the right to plead contributory negligence. In particular, the customer has the obligation to back up data and to defend against malicious software in accordance with the current state of the art.
X. Limitation
1. The limitation period is
a.) for claims for repayment of the purchase price from withdrawal or reduction, one year from delivery of the software, but not less than three months from submission of the effective declaration of withdrawal or reduction;
b.) for other claims arising from defects in quality, one year;
c.) for other claims for damages or reimbursement of futile expenses, one year, commencing from the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence.
2. Limitation occurs at the latest upon expiry of the maximum periods specified in Section 199 BGB.
3. However, in the case of damages and reimbursement of expenses arising from intent, gross negligence, guarantee, fraudulent intent and in the cases mentioned in Section X, the statutory limitation periods always apply.
4. HAIBERG's processing of a notice of defect from the customer only leads to suspension of limitation insofar as the statutory requirements for this are met; this does not result in a new commencement of limitation. Supplementary performance (replacement delivery or rectification) can only affect the limitation of the defect triggering the supplementary performance.
XI. Commencement and End of Customer's Rights / Retention of Title
1. Ownership of copies provided remains reserved until full payment of the remuneration owed. Prior to this, rights of use granted are always provisional and freely revocable by HAIBERG. The customer must immediately notify HAIBERG in writing if third parties access the goods subject to retention of title and inform the third party of HAIBERG's rights.
2. HAIBERG may revoke the rights under Section III for good cause. Good cause exists in particular if the customer does not pay the remuneration or, despite written warning, breaches Section III to a significant extent.
3. If the right of use under Section III does not arise or ends, HAIBERG may demand from the customer the return of the items provided or written assurance that they have been destroyed, as well as the deletion or destruction of all copies and written assurance that this has been done.
XII. Confidentiality
1. The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, they will therefore not assert any claims based on the absence of encryption, except insofar as encryption has been agreed in advance.
2. The contracting parties shall treat all information or information materials that become known to them directly or indirectly, orally, in writing or in any other form within the scope of the contractual relationship, designated as confidential or usually to be regarded as confidential by the nature of the matter, as confidential without time limit and use them exclusively within the scope of the services covered by this contract. Excluded from this confidentiality obligation are only such information and information materials which
a.) are already publicly known at the time they become known, i.e. readily accessible to any third party,
b.) are lawfully made accessible to a contracting party by a third party after becoming known, who is not subject to any confidentiality obligation to the other contracting party in this regard,
c.) must be communicated to an authority or other entitled third party at the request of that authority or third party,
d.) must necessarily be communicated to the respective partner's legal or tax advisers for the purpose of advice.
3. In the cases of paras. c. and d., the contracting parties shall inform each other immediately of a corresponding request and before passing on protected information.
4. The customer shall only make the subject matter of the contract accessible to employees and other third parties who require access to perform their assigned duties. He shall instruct these persons about the need for confidentiality of the items. The contracting parties shall impose a corresponding confidentiality obligation on all employees or third parties whom they engage to provide the services covered by this contract.
5. The contracting parties are aware that mutual communication will to a significant extent also take place in unencrypted electronic form (e.g. e-mail) and therefore waive the assertion of claims based on unauthorised third parties exercising illegal access to electronic communication media and thereby gaining knowledge of the aforementioned unencrypted electronically transmitted data.
6. HAIBERG stores the customer's data required for business processing in compliance with data protection regulations.
7. Upon receipt of an order, HAIBERG may name the customer for advertising purposes and, at the latest after successful completion of the services, name him as a reference customer
XIII. Training
1. Training takes place at the customer's choice at the customer's premises, in HAIBERG's business premises or at another location to be determined in consultation with the customer. In the case of training at the customer's premises, the customer shall provide appropriate premises and technical equipment in consultation with HAIBERG.
2. HAIBERG may cancel a training date for good cause. HAIBERG shall notify the customer of the cancellation of a date in good time and offer alternative dates.
3. In the event of justified dissatisfaction on the part of the customer, HAIBERG has the opportunity to remedy the situation. Otherwise, Section V applies.
XIV. Software Maintenance
1. Insofar as the customer has opted for a software maintenance agreement or a corresponding maintenance/care agreement has already been concluded in other contracts, he is entitled, upon payment of the agreed remuneration in accordance with the price and conditions list, to request the services listed below for the maintenance software. The conclusion of a software maintenance agreement presupposes the acquisition of a licence for the software in accordance with HAIBERG's General Contractual Terms. The services described below are understood as services that go beyond the warranty for defects in HAIBERG's software products within the scope of the software transfer agreement. Defect rectification within the warranty period, also in connection with the services offered here, is free of charge.
2. HAIBERG provides the customer from time to time with certain new versions of the maintenance software in order to keep it up to date, prevent malfunctions and resolve known application problems. New versions and new releases are made available to the customer on media deemed suitable by HAIBERG. The installation of these supplements and further developments is generally to be carried out by the customer. HAIBERG is prepared to carry out this installation for the customer against a separate agreement in accordance with the currently valid price list.
3. The provision of new products or additional functions offered separately by HAIBERG or obligations to further develop the maintenance software are not part of the maintenance services, unless expressly agreed otherwise. HAIBERG makes the new software versions available to the customer. The customer shall examine new versions immediately and give immediate notice of identifiable defects, for which Section 377 HGB applies accordingly. The examination of new versions must always take place in a suitable test environment. Only after a successful test is the new programme version installed in the live system. With regard to defects, the relevant provisions of the General Terms and Conditions apply. Insofar as HAIBERG has made a new version available to the customer, it will also maintain the previous version for a reasonable transition period.
4. Further services for software updates and release changes that are not directly connected with them are not included in HAIBERG's scope of services. Faults caused by a new operating system version, a new database system or otherwise by the customer's general operating system administration are not covered by the maintenance agreement. If the customer changes the source or software systems on which the HAIBERG software products to be maintained are based, the resulting necessary adaptations of the HAIBERG software products are not covered by the maintenance agreement.
5. HAIBERG shall immediately initiate appropriate measures on the basis of the circumstances communicated by the customer in order first to locate the cause of the malfunction and then immediately initiate measures to rectify the malfunctions.
6. In the event that the problems reported by the customer cannot be rectified within the scope of the maintenance agreement by remote maintenance or hotline, an appointment on site will be arranged if necessary. The customer shall bear the costs of this appointment if remote maintenance did not lead to a solution to the problem for reasons for which he is responsible.
7. HAIBERG may demand additional remuneration if the customer requests assistance necessitated by failure to fulfil a cooperation obligation (cf. Section VII) or made necessary by incorrect operation or an incorrect software environment. HAIBERG's current price list shall then apply.
8. The customer shall only designate to HAIBERG technically and professionally appropriately qualified personnel who are internally entrusted with processing enquiries from users of the maintenance software. Only this personnel designated to HAIBERG will direct enquiries to the support team.
9. The contract initially has a term of 12 months from signature of the contract or acceptance of the order by HAIBERG, at the earliest from installation of the software. Partial deliveries and corresponding pro rata billing of the agreed maintenance remuneration are possible. The contract is always extended for a further 12 months unless one contracting party notifies the other contracting party by registered letter, observing a notice period of three months before the end of the respective contract year, that an extension is not to take place (notice of non-renewal). Receipt by the other contracting party is decisive for compliance with the deadline for submitting the notice of non-renewal. In addition, the contract may be terminated by the provider and customer without observing a notice period for good cause. Declarations of termination are only effective in writing.
10. The customer remunerates the maintenance services by means of a running flat rate. The maintenance remuneration is owed in advance in the billing period and is invoiced by HAIBERG to the customer at the beginning of the billing period. The maintenance remuneration is shown in the maintenance certificate.
XV. Final Provisions
1. Amendments and supplements to this contract require written form to be effective. To comply with the written form requirement, transmission in text form, in particular by fax or e-mail, is also sufficient.
2. The customer agrees that HAIBERG stores and processes customer data in the course of its business activities. HAIBERG observes the requirements of data protection law.
3. This contract and the legal relationships arising from it between the contracting parties are governed exclusively by the law of the Federal Republic of Germany, excluding all provisions of German Private International Law. The application of the law of a third state, including its provisions on conflict of laws, as well as the application of the UN Convention on Contracts for the International Sale of Goods are expressly excluded.
4. The place of jurisdiction in relation to a merchant, a legal person under public law or a special fund under public law is HAIBERG's registered office. HAIBERG may also sue the customer at his registered office.
5. The customer shall independently observe import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the customer shall bear any customs duties, fees and other charges. The customer shall independently handle legal or official procedures in connection with cross-border deliveries or services, unless expressly agreed otherwise.
6. The customer assumes an obligation to examine and give notice of defects in accordance with Sections 377 HGB in respect of all deliveries and services from HAIBERG.
7. Should individual provisions of this contract, including these general terms and conditions, be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. The wholly or partially invalid provision shall be replaced by a provision whose economic result comes as close as possible to that of the invalid provision.
8. The contracting parties agree that, in the case of all disputes arising from or in connection with this contract, contract extensions or supplements which they cannot resolve between themselves, they will call upon the arbitration body of the German Society for Law and Informatics (www.dgri.de/) in order to resolve the dispute in whole or in part, provisionally or finally, in accordance with its then valid arbitration rules in the version valid at the time of initiation of arbitration proceedings. Limitation for all claims arising from the disputed facts is suspended from the arbitration application until the end of the arbitration proceedings; Section 203 BGB applies accordingly.
9. In the event of differences between this contract and a translation of this contract, the German version of the contract shall prevail.
Braunschweig, September 2026