1. Scope
These Terms & Conditions apply for all contracts concluded between the Company — hereinafter “awato” — and the Customer, as well as all other agreements made as part of the business relationship. Any contrary or conflicting terms & conditions on the part of the Customer shall not be binding for awato, even where awato has not explicitly objected to said terms and conditions. Any rejection of these T&C by the Customer must be indicated to awato in writing. For hardware deliveries, the business conditions of the preliminary supplier shall apply.
2. Tenders
Unless otherwise agreed upon in writing, tenders from awato are subject to change without notice. No contract is entered until a written confirmation of the order is received. The order confirmation from awato serves as the sole official definition of the contractual scope of the delivery. awato also reserves the right to deviations from the order documents caused by technical limitations, even after confirmation of the order. awato reserves all applicable rights of ownership, copyright and industrial property rights for cost estimates, preliminary designs and other documents. These may not be made accessible to third parties. These documents are to be returned to awato immediately in the event that the order is not awarded to awato.
3. Prices and Payment Terms
All prices are understood as ex Dormagen, excluding packaging, shipping and the legal VAT. Unless explicitly agreed otherwise, the following payment terms shall apply: For software development involving total order values over EUR 1,000, 50% of the total order value is due upon confirmation of the order, 40% of the total order value is due upon delivery and 10% of the total order value is due upon successful acceptance review; For software development involving total order values up to EUR 1,000, service and travel costs are due immediately upon rendering of the service. Payment for goods (hardware and third-party software) is due immediately upon delivery. After the due date, the payments will be considered in arrears without any further dunning notice. In the event of delayed acceptance (§ 4), the remainder of the open order value plus the legal VAT is immediately due for payment. Thereafter the payment will be considered in arrears. Withholding of payments with reference to counterclaims by the Customer that have not been accepted by awato is not permissible. The Customer may only offset claims that are uncontested or have been recognised by a declaratory judgement. If the Customer comes into arrears, then the owed amount shall accrue interest from the time of occurrence of default at a rate of 5% p.a. above the respective valid bank rate of the German Federal Bank (Deutsche Bundesbank). This in no way affects the right to enforce claims regarding damages above and beyond this.
4. Delivery Deadline
The delivery deadline begins with the day of the written confirmation of the order by awato. Adherence to the delivery deadline presumes the timely receipt of all documents, hardware or software services to be provided by the Customer, the prior acquisition of all necessary approvals, releases, timely clarification and approval of the plans, adherence to the negotiated payment terms and other contractual obligations. If these prerequisites have not been fulfilled in a timely manner, then the delivery deadline is considered invalid and is to be re-negotiated based on the revised operational situation. For software services of all kinds, delivery shall be deemed completed upon handover of the storage media and the developed system. The source code is not part of the obligatory scope of delivery. In the event of delay in acceptance by the Customer, written notification of the readiness to deliver by awato is sufficient to justify a claim of delayed acceptance. Partial deliveries are permissible. If non-adherence to the delivery deadline can be demonstrably attributed to force majeure, war, labour strikes and lockouts at awato of in the operations of suppliers or delays in delivery by these parties, or on other arising circumstances for which awato cannot be held responsible according to the general principles of law, then the delivery deadline shall be extended. In the event of demonstrable damages related to delayed delivery based on non-compliance with the delivery deadline for reasons beyond those listed in the previous paragraph, the Customer can, upon unsuccessful conclusion of a written grace period, demand compensation of 0.5% up to the entire total of max. 5% of the negotiated price for those parts of the overall delivery that cannot be put into operation due to the delayed provision. All greater claims for compensation on the part of the Customer due to delayed delivery are excluded, even after conclusion of a grace period posed by the supplier. The right of the Customer for greater compensation due to demonstrable gross negligence on the part of awato, as well as withdrawal after unsuccessful expiry of a suitable grace period set by awato, remains unaffected.
5. Transfer of Perils
The peril is transferred to the buyer as soon as the goods are handed over to the transport company. The Customer is responsible for purchasing transport insurance or other insurance policies.
6. Installation, Training and Other Services
All services, including installation, commissioning, functional testing, consulting, training and software presentation, are to be invoiced — unless explicitly agreed upon elsewhere in writing — based on actual hours worked (according to the hourly charges on the company’s price list valid at the time of rendering of the service). Furthermore the Customer will assume costs for travel to/from the company’s headquarters. Travel times are calculated in the same manner as working times. Travel times and overnight accommodations will be invoiced based on the actual receipts or, if preferred by awato, based on a fixed kilometre price as shown in the respective valid price list, with overnight accommodation costs based on the fixed rates for the respective income tax guidelines. For additional expenses for meals, the fixed charges for the respective valid income tax guidelines will be invoiced. For installation work, the Customer must satisfy the following prerequisites: Prior to the start of installation, all necessary preparatory work by the Customer for the assumption of installation work must be completed so that the installation can be started immediately upon arrival by the company employee or vicarious agent of awato and can be conducted without interruption. During installation, the Customer must make available all necessary installations, as well as to provide assistance with the operation of all connected third-party devices and, if necessary, to make possible work outside the normal working hours. If the installation or commissioning is delayed for reasons not attributable to awato, then the Customer must remunerate all costs for the wait time and additional travel on the part of the company’s employees or vicarious agent of awato. Training and presentations can be cancelled at no cost up to 15 days period to the scheduled start of the course This cancellation must be submitted in writing. – For cancellations up to 8 days prior to the start of the course, 50% of the negotiated fee will be invoiced. For cancellations after that point the full negotiated fee will be due.
7. Software Licence
The Customer is to acknowledge at all times that the software and any subsequent updates are copyrighted material. The Customer receives non-transferable, non-exclusive rights to use of the software for an unlimited period of time (Exception: demo, trial and test installations are limited to 3 months). The following conditions (in addition to those enumerated in the licence conditions for the software products themselves) shall apply: The software, in part or in whole, may only be used exclusively on the central unit or, in the event of a network version, on the network on which it was initially installed. Changes, expansions or other overrides of any kind are not permitted. Software licensing is device-based, excluding terminal services. The software and documentation, where provided, may only be duplicated for backup purposes. awato assumes no guarantee or liability for duplicated software. The Customer may not provide the software or provided documentation to third parties, or use the software or parts thereof for the benefit of third parties, or provide third parties insight into the documents. No further rights to the software are transferred to the user. In the event of a violation of the licence terms, a fine for breach of contract in the amount of double the respective software price (in the case of standard software based on the respective valid company price list) per violation shall be applied.
8. Development Orders
The following stipulations apply to software development projects to be handled by awato: The requirements specification to be agreed upon by both sides is a component of the contract and is decisive in determining which services are to be rendered. The description of services contained in the concept description can also be involved on a case-by-case basis. Changes or supplements to the requirements specification require the written approval of both contractual parties in the form of a rider that specifies the financial impacts of the change/supplement. Any such rider must be signed by both parties. If, due to the complexity of the order development, the deadline cannot be met, any grace periods to be set by the Customer must always reasonably account from the technical problems and/or any issues with suppliers that have arisen. If the Customer desires changes and/or expansions, then the negotiated deadlines will be rescheduled to reflect the extra work involved. An acceptance review is to be performed upon delivery of the development work, including any necessary troubleshooting as per § 9. All further claims, especially claims for compensation due to delay of the commissioning or downtimes, are excluded. Expected from this are claims related to demonstrable gross negligence on the part of awato.
9. Acceptance Review
Acceptance review of software modifications and software development will always be performed immediately or, by agreement, no later than 14 days after delivery. It is to be based on functional testing routines by awato or test passes based on mutually agreeable test methods. If a formal acceptance review is agreed upon, then a log will be created and signed by both the Customer and awato. If no formal acceptance review is agreed upon, then this will be performed automatically via a simplified process within 30 days. If the delivery is free of defects or if all faults that arise are resolved, then the Customer is obligated to accept the product. If the Customer refuses the negotiated formal acceptance review, then awato will submit a claim for acceptance review within 14 days and shall indicate at the same time that the expiration of that deadline will be considered acceptance. If the Customer does not submit the declaration of acceptance within this deadline, then it will nevertheless be considered as submitted upon expiration of the deadline. Any existing faults or those listed in the acceptance review log will be resolved by awato at no cost as part of awato’s contractual obligations to deliver the full scope of delivery.
10. Warranty
The Customer is aware that based on the current state of technology it is impossible to create perfect computer programs free of error in all applications and combinations. awato guarantees that the software it delivers will fulfil the fundamental functions described in the technical specifications. Software faults are defined here as defects that deviate from the program functionality specified in the technical and functional descriptions in a reproducible manner and which are demonstrably not related to faults in the hardware, system software or other system components not delivered by awato. awato has the option to resolve the faults either by installing an improved version of the software or to provide instructions on eliminating the fault, or undertaking measures to circumvent the impact of the fault. The Customer will provide at no cost all documents necessary for troubleshooting as well as access to its computing centre and necessary computing time as needed to resolve the issue. Excepted from this warranty are all wearing parts and damages related to natural wear and tear, improper operation or upgrade and maintenance work and/or modifications not explicitly authorised by awato. In the event that costs accrue for awato due to a warranty claim that is ultimately determined not to be the fault of parts delivered by awato, then the Customer is obligated to remunerate awato for the costs accrued. This applies in particular to the time and expense for fault localisation. The warranty is valid for 6 months, beginning at the time of acceptance. awato assumes liability for delivered hardware and software produced by third parties only to the extent of that supplier’s warranty policy. If repeated attempts at resolution of the problem by awato remain unsuccessful or awato does not offer an error-free new version of the program, then the legal rights of the Customer to reduce the remuneration and withdraw from the contract, following a written warning and setting of an appropriate grace period, will come into effect. The warranty is null and void if the Customer modifies the software delivered by awato. awato excludes further warranty for the software, handbooks included with delivery (where applicable) or other written materials.
11. Liability
awato assumes liability solely for damages related to gross negligence or premeditation on the part of its employees or vicarious agents, and only up to an amount totalling the paid purchase price of the objects delivered by awato. In the event of loss or damage to data or storage media, the obligation for replacement does not encompass the restoration of lost data. In addition, compensation claims against awato — for whatever reason — are excluded where legally permissible. This applies in particular to consequential losses (such as losses from lost earnings, operational downtimes, loss of commercial information or other financial loss). The statue of limitations for all compensation claims against awato, company employees or other assistants or vicarious agents expires 12 months from the occurrence of the damages. Excepted from this are claims related to crimes, whereby the legal statutes of limitation shall apply. If the Customer has contributed through negligent conduct to the occurrence of damages, then the Principle of Co-Culpability (§ 234 German BGB) shall determine the extent to which awato and the Customer bear liability for the damages. awato assumes no liability for damages occurring due to force majeure, rebellion, war or natural events or other incidents for which it bears no responsibility (such as strikes, lock-outs, traffic disruptions).
12. Retention of Title
All goods, including those due to awato outside the contract, remain the property of awato until all claims made upon the Customer have been settled in full. The Customer is entitled to resell the purchased object in the course of proper business transactions.
13. Consumer protection
Awato Software GmbH does not participate a dispute resolution procedure.
14 Final provisions
The contract shall remain valid in its other parts even if individual provisions are legally ineffective. Any unenforceable provision must be replaced with a new one that best reflects the intended financial aim. Agreements which deviate from or supplement the aforementioned terms and conditions are only valid if produced as a written rider agreement to the General Terms & Conditions. Where permissible in accordance with § 38 ZPO (German Code of Civil Procedure), it is agreed that the location of awato’s headquarters shall serve as the sole legal venue and place of fulfilment. The jurisdiction for all relations is exclusively the Federal Republic of Germany. The German version of these Terms & Conditions is the legally valid version.
