Terms of business of AWEK microdata GmbH
§ 1 Fulfilment
1.1
AWEK microdata GmbH (AWEK) shall fulfil their contractual obligations according to the state of the art on the basis of a written order.1.2 The customer shall grant AWEK the necessary support.
§ 2 Co-operation
2.1
Each contractual party shall name a project manager. He/she is authorised to make decisions or to bring about decisions without delay. The project manager of AWEK shall fix any decision in writing. The customer’s project manager shall make available to AWEK any information which is necessary. AWEK undertakes to contact the customer’s project manager whenever this is required to fulfil the contract.
2.2
Work shall be carried out at the customer’s site as far as this is necessary in order to ensure proper handling, otherwise at AWEK’s. For any work carried out at the customer’s site, the customer shall make available to AWEK’s employees sufficient working places and materials.
§ 3 Remuneration, payments
3.1
Any work shall be remunerated at actual costs, unless such work has expressly been included in a fixed price arrangement. Unless otherwise agreed, hourly rates, daily rates (8 man-hours), travelling expenses and other expenses shall be determined by the then valid price list of AWEK.
Travel time shall be charged as working time at a rate of 50%.
AWEK shall be authorised to invoice on a monthly basis.
AWEK’s employees shall record their daily working time on a list, indicating the order item they have been dealing with and the type of work, and submit this list monthly. The customer shall have the right to request insight into this list at any time.
Travelling expenses shall be charged separately, even with fixed price arrangements.
3.2
All prices are net prices plus value-added tax.
3.3
Payments are due within 10 days from the invoice date without any deduction.
3.4
The customer shall not be entitled to withhold any payments, notwithstanding his right to refuse payments due to incomplete or defective compliance on the part of AWEK. He only can set off payments against claims which have obtained legal force, which are ready for decision, or which have been allowed by AWEK.
3.5
The hardware and the data carriers containing the software shall remain the property of AWEK until complete payment of the purchase price, and they may neither be pledged nor be turned over as security.
§ 4 Right to the results
4.1
Unless otherwise agreed, the customer shall be entitled to make use of the results produced within the framework of the contract for his own purpose or the purpose of his group of companies. AWEK shall be entitled to other usage of the results unless this is in breach of § 9.
§ 5 Customer’s obligations with regard to program protection
5.1
The customer agrees that the programs including the user documentation and any other documents, including future versions, are the copyrighted intellectual property and the trade secret of AWEK, or of the respective supplier. He shall make sure for an unlimited period that these are protected against any misuse.
5.2
Copies may only be produced by the customer for backup purposes or as a substitue. The note on the data carriers supplied to him indicating the program name, copyright information and supplier shall also be written on the copies of such data carriers.
The customer shall be entitled to produce copies of the user documentation for his own use.
§ 6 Failures in fulfilment, delay
6.1
If AWEK fails to meet deadlines due to causes for which AWEK cannot be held liable, including strike or lockout, AWEK shall be entitled to request a reasonable postponement. If expenses are increased due to a cause for which the customer is liable, AWEK shall be entitled to claim remuneration of their own additional expenses.
6.2
If AWEK is in default of delivery by more than 30 days the customer shall be entitled as from this date to claim a penalty of 0.5% of the value of the deliverables for each further week during which these cannot be used for productive purposes, limited, however, to 5% of the value of the order (without VAT).
§ 7 General rules for the removal of defects
7.1
Any defects which may occur in the course of contractual use shall be advised by the customer in a comprehensible way, including any information which may be helpful for the identification of the defect. Such advice shall be given in writing if so requested by AWEK.
The prerequisite for all claims against AWEK relating to defects in hardware or software is that such defect is reproducible or can be demonstrated directly or by machine-produced output.
The customer shall reasonably support AWEK in the removal of defects, in particular in case of a defective program. At AWEK’s request the customer shall send such program in the version that was used when the defect occurred, and he shall make available machine time and complement corrective measures as provided by AWEK.
7.2
AWEK shall remove defects within a reasonable period either by repair or by replacement, at their discretion. In case of defects having severe impacts on the use of a program AWEK shall make available on request an auxiliary solution prior to the final remedy so that the impact of such defect is reduced.
7.3
The obligation to remedy defects shall not apply to any programs which have been subject to modification or any other interaction by the hands of the customer, unless the customer proves in his error report that such interaction did not cause the defect.
7.4
AWEK shall be entitled to claim remuneration of their expenses incurred by any activities following the notification of a defect if the customer fails to prove such defect.
§ 8 AWEK’s warranty
The legal provisions shall apply whereby the following is agreed:
8.1
Removal of defects shall be subject to § 7.
8.2
Claims due to loss of property, for whichever legal reason, which are based on slight negligence, may only be raised against AWEK (including their agents) in case of breach of a substantial obligation/cardinal obligation. The same shall apply to claims due to wasted efforts.
In any case claims shall be limited to EURO 40,000.00 or half of the amount of order value (without VAT), whichever value is higher. On conclusion of the contract the customer may claim additional liability against payment of a risk surcharge.
The limitations shall not apply if damages are covered by AWEK’s liability policy, and the insurer agrees to pay. AWEK undertakes to maintain coverage at the level existing at the time of making the contract.
8.3
The period of limitations for warranty claims (“warranty period“) is 6 months (except in case of wilful misconduct of AWEK). The period starts from the date of installation, if this is carried out by AWEK, otherwise one month from the date of delivery.
§ 9 Confidentiality
9.1
AWEK undertakes that any knowledge about trade and business secrets as well as any information marked in writing as confidential, which is obtained in the course of the contractual relationship, will only be used for the purpose of fulfilment of this contract and will be kept confidential for an unlimited period of time.
9.2
The confidentiality obligation shall not apply to any ideas, concepts, know-how and technologies relating to the generation of programs, nor to any data which are already known to AWEK or which were or will become public domain outside this contract.
9.3
AWEK shall make sure that their employees respect confidentiality.
9.4
AWEK shall be entitled to include the customer’s name in a list of references. Any other indication of the customer’s name in advertising materials shall previously be agreed upon.
§ 10 Written form, venue
10.1
The contract and any amendments thereof are subject to written form.
10.2
The venue shall be the place of business of AWEK.
10.3
The contract is subject to German law. For foreign customers, the UN purchase laws which have been taken over in German legislation shall be excluded.