General Terms and Conditions
1 Application
1.1 All Human Solutions deliveries, services and quotations are based solely and exclusively on these Terms and Conditions. They govern any and all agreements entered into. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
1.2 These terms an conditions shall only apply vis á vis merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para.1 BGB (German Civil Code).
2 Quotations
2.1 All Human Solutions quotations are non-binding and subject to confirmation. To be deemed legally valid, all orders and declarations of acceptance must be confirmed in writing by Human Solutions.
2.2 Should Customer fail to carry out its contractual obligations, Human Solutions may charge Customer eight percent of the contract’s total value as compensatory damages. The customer reserves the right to show evidence of minor damage.
2.3 Price changes are permitted in cases where more than four months have expired between the close of purchase and the agreed-upon delivery date. Should there be a rise in wages, material costs, or standard purchasing costs in the time before delivery, Human Solutions may adjust its prices commensurate with said price increases. Customer may withdraw from the Agreement only if the aforesaid price increases more than moderately exceeds the increase in the general cost of living.
3 Contractual Product
3.1 Product descriptions and/or images in test programs are performance descriptions and not any form of guaranty. A guaranty must be made in writing by the management board of Human Solutions.
3.2 Human Solutions shall generate all performance in accordance with state-of-the-art technology.
3.3 Contractual products are legally protected. Copyright claims, patent rights, trade mark rights and all other ancillary copyrights to the software as well as to other objects, which Human Solutions provides or makes available to Customer within the framework of the initiation and performance of the Agreement remain the exclusive property of Human Solutions. In the case of any third party being entitled to rights, Human Solutions shall possess all corresponding exploitation rights.
3.4 Customer purchases the contractual products (Software program) for his own perpetual use for internal purposes (basic usage right). Usage may only be made available to the number of workplaces (or less) stipulated in the Agreement or purchase order. Human Solutions grants Customer the rights to the program necessary for its usage, as well as the right to copy the program to system memory and hard disk and the right to repair errors. Customer may make backup copies of the program that are deemed necessary for secure operation. These copies shall be marked as such and provided with copyright identification of the original data media. The user manual may only be copied for internal use within Customer's company. Customer shall have no rights to the surrender or delivery of the source code. Customer must notify Human Solutions in writing of the respective installation locations. This shall also apply to any later change of installation locations.
3.5 When the software is purchased, Human Solutions shall only agree to the transfer of the software (either wholly or in part) to a third party in accordance with the following conditions:
- The purchaser shall transfer to said third party the original data medium (if available), shall destroy all copies, especially those on data media, hard drives or storage memories, shall relinquish all usage rights and shall confirm in writing to the seller that he has carried out aforesaid tasks.
- The third party shall explain in writing directly to the seller that he shall adhere to the rules of this Agreement, and in particular to 3. of this Agreement.
- There are no salient grounds for objections.
Acceptance must be in written form. All other usage forms, in particular rental, lease, and distribution in physical or incorporeal form, are not permitted without prior permission in writing from Human Solutions.
3.6 Customer may de-compile the software interface information only within the limits defined by § 69e of German copyright law (UrhG) and then only after informing Human Solutions in writing as to such intent, along with a request for the required information to be provided within a two-week period. The limits of discretion (obligation of secrecy) shall apply to all knowledge and information which Customer may obtain during the de-compiling procedure.
3.7 Construction or design modifications arising from technology improvements or required by law shall remain reserved during the period of delivery demands, insofar as the article of sale is not considerably modified and such modifications are deemed reasonable for Customer.
4 Delivery
4.1 Delivery dates, whether binding on non-binding, must be agreed to in writing. Delivery times begin on the date Agreement becomes effective or upon order confirmation.
4.2 Human Solutions shall not be responsible for delays in the delivery of goods or services due to Acts of God or events beyond its control which make delivery extremely difficult or impossible, such as strikes, lockouts, governmental regulations, etc. The foregoing also applies if such occur at Human Solutions suppliers or their suppliers’ suppliers. In such circumstances, Human Solutions shall be permitted to extend the delivery time for the duration of the hindrance, including a reasonable ramp-up time, or with respect to the unfulfilled delivery component in question, to withdraw from the contract completely or partially.
4.3 Human Solutions reserves the right to perform partial deliveries or services, insofar as deemed reasonable for Customer.
4.4 Delivery is conditioned upon timely and proper performance of all duties of the Customer. Defences based on non-performance of the contract are reserved.
4.5 Should Customer default on acceptance, Human Solutions may, at its sole discretion, demand compensation for damages suffered. Upon the date of such default, Customer accepts all risk of damage or destruction to the system.
5 Passing of Risk
Customer assumes all risks for any shipment the moment the shipment is transferred to the delivery agent or has left the Human Solutions warehouse for shipment. The foregoing applies also in cases where Human Solutions has agreed to cover all shipment costs. Should shipment be impossible due to no fault of Human Solutions, Customer assumes all risks upon notification that goods are ready for shipping. Customer may take out transportation insurance at its own cost if so desired.
6 Customer Participation
6.1 Customer shall assist Human Solutions during installation and training as required, and shall provide Human Solutions with the necessary information and documentation as requested. Customer shall ensure that Human Solutions is given access to all locations within Customer’s premises required for carrying out said installation and training.
6.2 Customer shall ensure that upon the agreed delivery date, all arrangements will have been made to ensure system installation and start-up can occur. This includes the fulfillment of all space, infrastructure and other requirements.
7 Acceptance
7.1 Contract for work: Completed works must be accepted (Certificate of Acceptance).
7.2 If Customer does not declare its acceptance without delay, then Human Solutions may in writing set a time limit of one week for the giving of this declaration. The acceptance shall be deemed to have taken place, if Customer does not specify in writing within this period the reasons for the refusal of the acceptance.
7.3 The Certificate of Acceptance shall list the results of system testing. Should any improvements be necessary, Customer and Human Solutions will discuss these in good faith and agree on a date for additional testing.
8 Training
Human Solutions will provide training for Customer personnel as contractually agreed. Human Solutions does not guarantee any specific results or the success of said training.
9 Warranty for Defects
9.1 The products, e.g., the software stipulated in the Agreement, shall have the properties agreed upon, shall be suitable for the otherwise standard usage stipulated in the conditions of the Agreement and shall be of standard quality for software of this type. Errors resulting from hardware defects, environmental conditions or improper usage shall not be considered defects. Minor reductions in quality will not be considered. In respect of updates, upgrades and the delivery of new versions, the warranty shall be limited to new features of the update, upgrade or new versions compared to the previous version release.
9.2.1 Purchase: Customer only has the right of subsequent performance in case of defect claims. Such subsequent performance may consist of repair of the open defects or their replacement. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. Should the subsequent performance prove unsuccessful, or should there be a final refusal of subsequent performance by Human Solutions, Customer may rescind the Agreement or reduce the purchase price and, if the defect is Human Solutions responsibility, claim for damages or reimbursement in accordance with 11. If the defect does not or not substantially impair the functionality, then Human Solutions is entitled, to the exclusion of further warranty rights, to remedy the defect by delivering a new version or an update as part of its version, update and upgrade planning.
9.2.2 Rent: If the products provided should prove to have defects that affect contractual usage in more than a minor way, Customer has, insofar as he has complied with his duty of complaint and irrespective of his legal claims to reduction of rent and damages, the right to demand the repair of such defects by Human Solutions GmbH. The Human Solutions GmbH may deliver replacement equipment in place of the removal of defects. Customer may terminate the Agreement without notice in the case of failure of the removal of defects or non-delivery of replacements.
9.2.3 Contract for work and services: (Creation of software, installation and other contractual work/labor performance of services) Where software creation or other contractual work/labor performance of services is defective, Customer may demand replacement within a reasonable period of time. Should said replacement prove unsuccessful, Customer may, subject to the statutory prerequisites, at its option withdraw from the Agreement or reduce the price and claim damages or reimbursement of costs in accordance with 11. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then Human Solutions shall be entitled, to the exclusion of further warranty rights, to remedy the defect by delivering a new version or an as part of its version, update and upgrade planning..
9.2.4 Care and Maintenance: In the case of deficiencies in the performance of care and/or maintenance services, Customer may demand that Human Solutions provide subsequent performance within an adequate period of time. Should said subsequent performance prove unsuccessful, Customer may, in respect of the care and/or maintenance Agreement, terminate the Agreement without notice, or demand a reduction of the monthly basis care and/or maintenance fees and, insofar as Human Solutions GmbH is responsible for the defect(s), claim damages or reimbursement in accordance with 11. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. Care and Maintenance Support does not include services for the licensed product at a release version that is no longer generally supported by Human Solutions.
10 Warranty for Defects in Title
10.1 Human Solutions warrants that usage of the subject of the Agreement software in accordance with the terms and conditions of this Agreement shall not infringe upon the rights of any third party. Should any such infringements arise, Human Solutions warrants that it shall provide Customer with, at its discretion, either a non-infringing usage method of the article of sale or a replacement article of sale of equal value.
10.2 Customer shall inform Human Solutions immediately in writing should any third party make infringement claims (e.g., copyright or patent rights) against him. Customer grants Human Solutions the right to conduct any legal actions against said third-party on its own account. Should Customer decide upon such course of action, Customer shall under no circumstances unilaterally acknowledge the third-party claim without the prior written approval of Human Solutions. Human Solutions shall absorb all costs associated with defending any third-party claims and will indemnify Customer from any costs associated with such, provided said costs have not been caused as a result of any action on the part of Customer who is in breach of his obligations hereunder, such as any use of the software in violation of the terms and conditions of this Agreement.
10.3 Liability is governed by the terms stipulated in 11, whereas prescriptions to such (Statute of Limitations) are governed by the terms stipulated in 12.
11 Liability
11.1 Human Solutions shall be liable for compensatory damages, or compensation for futile expenses, regardless of the legal reason, only to the following extent:
11.1.1 The liability for cases of willful misconduct and guaranty is unlimited.
11.1.2 In cases of gross negligence, Human Solutions shall be liable for damages only in the amount typical and foreseeable.
11.1.3 Human Solutions shall be liable for losses caused by the breach of its primary obligations by Human Solutions; its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which the Customer may rely. If Human Solutions breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by Human Solutions at the time the respective service was performed.
11.1.4 Human Solutions shall be unrestricted liable for death, personal injury or damage to health caused by the intent or negligence of Human Solution, its legal representatives or assistants in performance.
11.2 Human Solutions retains the right to dispute claims in cases where Customer bears partial blame for damages suffered. The Customer has in particular the obligation to carry out data backup and to prevent any unauthorized third party access (esp. viruses, Trojan-type viruses or similar) in accordance with current, state-of-the-art technology. Liability for loss of data shall be limited to the typical amount of effort involved in the data restoration, which also would have applied in the case of the regular and risk-pertinent manufacture of backup copies.
12 Statute of Limitations
12.1 The Statute of Limitations shall be deemed to be:
12.1.1 for claims for return of payment due to withdrawal from the Agreement or demand for reduction, one year following delivery of the software, however not less than three months from submittal of the legally binding declaration of withdrawal or reduction for claims;
12.1.2 one year for other claims arising from defects;
12.1.3 one year for claims arising from infringement,
12.1.4 one year for other claims for damages or compensation for losses, beginning at the time in which Customer officially had knowledge of such circumstances, or was caused to obtain such knowledge without gross negligence on his part.
The statute of limitations shall take effect at the latest upon expiration of the limits set forth in § 199 of the German legal code ( BGB).
12.2 For damages and compensation claims arising from willful acts, gross negligence, guarantees, bad faith as well as those cases specified in 11.1.4, all legal statute of limitations provisions shall apply at all times.
13 Prices, Fees
13.1 Invoices are payable without deduction within 14 days of the date of the invoice. In the case of care and maintenance services, Human Solutions will invoice in advance for payment for each calendar year. Payment for such shall be made within 14 days of the issue of the invoice. All amounts are excluding any applicable Value Added Tax.
13.2 Travel costs, expenses, accessories and shipping costs are also to be reimbursed in accordance with time and material expended. Any additional performance or service demanded by Customer (e.g., consultancy and support during program installation) shall be invoiced in accordance with Human Solutions' pertinent, current price list.
13.3 A payment obligation is only considered fulfilled when Human Solutions has full access to the funds in question. In the case of payment by check, payment shall be deemed to have been rendered only when said check has been cashed by Human Solutions.
13.4 If an account is overdue, Human Solutions has the right to withhold delivery until payment has been rendered.
13.5 Overdue payments shall be charged an interest at the rate of eight percent over the then current basic rate of interest. This shall not affect any more extensive rights.
14 General Provisions
14.1 Customer may transfer its rights and obligations under this Agreement to a third party only upon prior written consent of Human Solutions. § 354a of the HGB (GCD, German Commercial Code) shall remain unaffected.
14.2 Customer may claim a set-off against Human Solutions payment demands only when Customer holds an undisputed claim or legal title.
14.3 At time of purchase, Human Solutions shall retain ownership of article of sale until all payments arising from the entire business relationship have been made in full. Upon breach of contract by Customer, in particular on default of payment, Human Solutions shall be entitled to require at Customers expense the return of all article of sale, respective all copies of the licensed product in which Human Solutions has retained ownership, or if applicable, to demand the assignment of Customers right of return against third parties. In such case upon Human Solutions request, Customer shall confirm in writing that no copies of the licensed product of copies thereof were retained and that all installation of the licensed product have been irrevocably deleted from Customer or third party’s systems. Before the unconditional transfer of ownership, Customer shall only dispose of rights in the licensed product with the written consent of Human Solution.
14.4 Should any provisions included herein become not legally effective and/or not practicable either wholly or in part, and/or lose their legal effectiveness and/or practicability at a later date, this shall not affect the validity of the remaining provisions.
14.5 Human Solutions retains the right to assign sub-contractors to perform any of its contractual obligations.
14.6 German law exclusively governs this Agreement, and the rules of private international law and UN sales laws are excluded, regardless of the seat of Customer.
14.7 The place of performance and jurisdiction shall be agreed as Kaiserslautern, Germany, provided that Customer is a merchant within the meaning of the German Commercial Code or if upon the commencement of legal proceedings, Customer has no place of business or ordinary residence in the Federal Republic of Germany. Human Solutions retains the right, at its sole discretion, to initiate legal proceedings hereunder at the seat of Customer, or at any other location.
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