Our Terms and conditions
1. General Terms and Conditions PUSH YOR CLUB Conclusion of a contract
Our offers are non-binding. The customer is bound to his order for four weeks from receipt by us. Our terms and conditions apply exclusively. Conditions of the customer will not become part of the contract even if we do not expressly contradict them. Documents, samples, drawings, information and suggestions remain our intellectual property. If no contract is concluded, they must be returned or deleted and may not be used.
2. Subject matter of the contract
The assurance of properties requires our express and written confirmation; otherwise the representation of properties only serves to identify the delivery item. The messages in the documents listed in Appendix 1, etc. serve only to describe the product and are not assured properties. Data, numbers, dimensions, etc. are only given correctly according to the order of magnitude. The data carrier required for the program delivery is included in the price. The customer bears the risk, since the selection and specification of the delivery item corresponds to his wishes and needs. If in doubt, he must seek expert and neutral advice before concluding the order. We can use programs and services from third parties in whole or in part.
3. Specifications of the customer and specifications
Requests and specifications of the customer that are to be taken into account in the manufacture of the subject matter of the contract must always be in writing.
We can take notes about the discussions to specify or change contractual conditions, in particular the subject matter of the contract. These notes become binding on both sides if we leave them to the customer with a written reference to these legal consequences and if he does not object in writing within 10 days. When creating individual software, we create a specification that becomes binding on both sides under the conditions mentioned in 2. If necessary, the scope of services will be expanded through additional orders with appropriate remuneration; Additional orders should be concluded in writing.
4. Copyright and right of use
We are exclusively entitled to the comprehensive copyright with all powers according to § 12 - 267 UrhG on all documents, information and contractual objects created in the context of contract initiation and processing including warranty and maintenance. We give the customer the right to use the contractual items. It may only be used on a central unit and only for corporate purposes, not for the purposes of third parties. Use must be in accordance with the contract. According to the contract, only use is when the programs are executed with the aid of the instructions described in the operator's manual, as well as the production of copies in machine-readable form for data backup according to 6.
Changing the programs is not in accordance with the contract. The original data carrier must be available while the program is being used. Demonstration programs may only be used for demonstration and testing, not for administrative purposes. If the software is not acquired for your own use, but to be passed on, 22 applies.
5. Contractual penalty for prohibited use
For each use of a supplied program outside of the contractually stipulated area (see 4, 22; in particular in the case of use after the right of use has ended, use outside of the material or local area of use, use by third parties or for third parties), 1.5 times the contractual penalty the license fee will be invoiced for each central unit on which the program could be used due to the breach of contract. The customer is free to prove that the program was not used. We reserve the right to assert higher damages and to request a written, punishable declaration of cease and desist. We refer to the right of termination according to 21 para. 2
The program may only be copied for backup and archiving purposes. There may always be a maximum of 3 copies. The prohibition of multiple use must be observed. Written documents may not be reproduced, even in part. The customer can purchase additional copies of the written documents from us for a fee. If the loss of the program is made credible to us, we will replace the customer with the program if possible at our own cost plus 10% of the license fee.
The objects of the contract may not be made accessible to third parties or made available to them. This also applies to employees of the customer, unless the use of the contractual items is part of their official duties. All employees who can have access to the items must be instructed in writing about the restricted right of use and about the criminal liability and liability for damages for any use beyond this. The customer is responsible for this confidentiality.
8. Delivery and service deadlines
Information about the delivery time are non-binding minimum information. Deadlines are always extended by the period during which we wait for messages or information from the customer (e.g. requirements according to 3 para. 1, statement according to 3 para. 2 or 10 para. 3, for a decision, clarification or error information). All reminders and deadlines set by the customer must be in writing. A grace period must be at least 20 working days. Deadlines are also deemed to have been met if they are exceeded by a period of time that is irrelevant to the customer's concerns. If the customer abandons our performance of the contract as a result of a delay, we are only entitled to compensation if we are responsible for the delay due to gross negligence or intent. These regulations apply to delivery and performance periods of all kinds, e.g. B. also warranty obligations.
9. Fringe benefits
At the customer's request, we take care of the transport, installation and testing of the delivery items, as well as training the staff. In addition, appropriate remuneration is charged for this.
Both parties can request partial acceptance after completion of the usual performance levels. The performance status and the declaration of acceptance presented at the acceptance date are binding. Subsequent changes require the agreement of the contractual partner. We only carry out changes and additions to approved sub-areas for an additional reasonable fee. We can request a written declaration of acceptance from the customer. The acceptance may only be refused if the service has significant defects or defects that cannot be remedied. Services that are presented to the customer with the written request for acceptance are deemed to have been accepted without reservation if the customer does not provide a different written message within 10 working days and this legal consequence was pointed out in writing. These regulations also apply to partial acceptances.
11. Functional inputs by the customer
The customer will take reasonable precautions in the event that a program does not work properly in whole or in part, namely by means of an alternative procedure, data backup, fault diagnosis, etc. We expressly point out the importance of proper data backup to the customer.
The contracting parties agree that, according to the state of the art, errors cannot be ruled out even if the software is created carefully. We guarantee that the program function can be executed without errors in accordance with the program descriptions and any functional specification. Usage restrictions or errors that are or may be caused by operation, hardware, operating system, system environment, etc., cannot be charged to us as long as such disruptions that do not affect us have not been eliminated or excluded. We guarantee primarily through rework. The improvement is carried out by eliminating errors, by providing a new program version (possibly for a reasonable surcharge for program extensions compared to the contractually agreed version) or by showing ways of avoiding the effects of the error. It is therefore not always possible to completely eliminate the error through rework. We are entitled to choose the type of improvement. A new program version is to be adopted by the customer even if this leads to acceptable adaptation and conversion problems for him. A prerequisite for the rework is an error message according to 13 Para. 2. If the rework - possibly after several attempts does not succeed or is unreasonable for the customer or is unreasonably refused by us, the customer has the right to reduce the remuneration (reduction) or the To cancel the contract (conversion). Other warranty rights are excluded. We do not owe any expenses for the rectification of defects by third parties. 14. Each warranty expires if the program was used contrary to 4 paragraphs 2 and 22 (especially if it was changed without our written consent) and the customer does not prove that the defect is independent of use contrary to the contract. We provide adequate support to clear up a malfunction if it is doubtful whether there is a defect or whether the defect can be attributed to our software or to another part of the IT installation. We invoice the effort, unless our responsibility for the operational disruption is determined. The customer gives us all necessary support for the purpose of our warranty measures, in particular by means of error messages according to 13 Paragraph 2, insight into the operating documents, use of the EDP systems, access to the operating rooms etc.
13. Notice of defects
The customer must immediately and thoroughly check our deliveries and services for completeness and freedom from defects. The customer will always submit a complaint in writing with a precise description of the defect. For this purpose, the customer documents the operational sequence including error messages with the required accuracy. Delayed or insufficient notifications of defects release us from the guarantee. If we nevertheless take action, we will invoice the effort, in particular the additional effort in the case of insufficient error documentation.
The use of the spectral data available in our software products can in no way lead to a claim against the manufacturer of the products, neither can the manufacturer be legally prosecuted. We pay compensation, regardless of the legal reason, only in accordance with the following rules: In the event of willful intent, gross negligence, personal injury or the lack of a guaranteed property, we will pay compensation in full. In other cases we will reimburse half of the damage in the event of moderate negligence, whereby our payment obligation in connection with this contract is limited to the license fee according to 16. We are not liable for slight negligence. In particular, the objection of contributory negligence on the part of the customer remains open to us. This applies in particular to damage from loss of data, incorrect operation and inadequate precautions against IT malfunctions.
15. Statute of Limitations
The warranty claims expire within 6 months from the transfer of risk. A limitation period of one year applies to claims by the customer arising from negligence when concluding the contract, breach of secondary obligations, default or cancellation of the contract, starting from the point in time at which the customer became aware of the damage. A suspension of the limitation period ends if negotiations on the customer's claims or defects have been suspended for longer than a month or if we have not given statements on defects for longer than two months without complaint.
16. Payment and retention of title
The customer pays a one-time license fee for the services described in this contract in accordance with the agreements, alternatively in accordance with our price list. We charge appropriate fees for ancillary services (9). VAT at the statutory rate is added to all payments.
Unless otherwise agreed, the license fee for standard software to be delivered unchanged is due immediately after delivery and receipt of a corresponding invoice. If other payment conditions are shown on offers, order confirmations or invoices, these have priority. When ordering individual adjustments, a deposit of 50% of the order amount is due. The remaining amount is due upon delivery / acceptance. Insofar as we transfer property rights and other rights (e.g. copyright authorizations) to the customer, we reserve the rights until our claims from the contract have been settled in full. The customer may only offset claims that are undisputed and have been legally established. We can always avert the customer's right of retention by providing a bank guarantee as security.
The customer may assign claims from this contract to third parties.
19. Third party rights
We guarantee that the transfer of usage rights in accordance with this contract does not conflict with any third party rights. If necessary, we shall be liable accordingly 14 .. In the event that third parties assert conflicting rights against the customer, he will immediately inform us in writing and comprehensively. We support him in defending against such claims. At our request, the customer grants us the right to conduct the dispute; in this case we will release the customer from procedural costs.
20. Data protection
The customer agrees that we may store and machine personal data relating to the business relationship.
21. End of contract
In principle, the customer has the right of use (4, paragraphs 2-4) for an unlimited period of time. However, for good cause we may terminate the right of use without notice by means of a written declaration. Such termination should be preceded by a written warning. A reason for termination without notice exists, in particular, if the customer exceeds the contractually granted right of use or if confidentiality vis-à-vis third parties has been broken or no longer ensured, or if the customer ceases to operate or for other reasons no longer needs the program permanently. In this case the customer has to surrender everything received from the contract, in particular the documents according to Appendix 1, and to delete the programs. He has to affirm the complete surrender and deletion to us in lieu of oath. In the event that the customer is entitled to a refund of license fees, an appropriate software usage period of five years applies.
22. Special regulation for software dealers
Anyone who purchases software for resale to a third party (dealer) may not use it himself, but only pass it on to that third party. Only special demonstration programs may be installed on the dealer's computer or on the computers of its customers for demonstration purposes. The demonstration software must be specially ordered from us for the customer on the customer's computer and set up by us for the customer, or we will provide special demonstration software for legal distribution to interested parties or customers. 4 must always be observed. The dealer must always give the customer the original CD (see 4, paragraph 3, sentence 3). If after delivery of the original program carrier by us to the dealer, the original program carrier is to be deposited with us until otherwise regulated. For this purpose, he demands the data carrier from the customer; we can demand the assignment of this right to return at any time. The dealer is liable without any further fault for all disadvantages and every effort that we incur from non-compliance with these rules.
23. Final provisions
The place of jurisdiction for all claims in connection with this contract, as far as the customer is a registered trader or equivalent, is the seat of the contractor. However, we have the right to sue the customer at any statutory place of jurisdiction. Should any provision of this contract be or become ineffective, this shall not affect the remaining content of the contract. Rather, the ineffective provision is deemed to be replaced by a provision which comes closest to the meaning and purpose of the ineffective provision in a legally effective manner. The same applies to any contractual loopholes. The legal relationships between the parties for the provision of the software are exclusively determined by this contract and the documents referred to in this contract. Additional agreements have not been made. Changes and additions always require the written confirmation of our management. Written form requirements that are set up by law or this contract are always prerequisites for effectiveness and can only be waived in writing.