• Full insight with
    a push of a button
    ALPLA Werke GmbH [more]
  • Automated
    and paperless.
    Reference Gebhardt GmbH [more]
  • Ready for the
    digital future.
    Reference CNC Fertigungstechnik [more]
  • Precision meets
    automation.
    Reference MTU Aero Engines [more]

I. General

1.1. Our General Terms and Conditions of Business apply to this contract and all future contracts concluded between the contractual partner and ourselves even if they were not expressly made part of the subject matter of the contract.

1.2. The General Terms and Conditions of Business of the contractual partner are not recognised.


II. Offer and order confirmation

2.1. Our offers are subject to final confirmation. Binding contracts only come into being with our order confirmation.

2.2. Information in brochures and other descriptions of services, dimensions, weights, consumption data and operating costs etc. should only be considered as approximate in so far as they were not expressly identified as binding in writing. A guarantee of properties or durability only exists if it is expressly accepted in writing.


III. Subject matter of the contract

Bespoke software

3.1. We create the software which is the subject of the contract on the basis of the product specification developed for preparation for creation of the program and, when appropriate, a performance specification. The scope of our contractual services are derived from the relevant software contract. When creating software programs we reserve the right to deviate from the product specification for factual or legal reasons in so far as the creation of the software would otherwise not be possible or not so possible according to the requirements of the contractual partner.

3.2. We create the software which is the subject of the contract according to the principles of proper professional practice and the latest state of the art.

3.3. Prior to the commencement of the project the contractual partner must nominate a knowledgeable employee to us who will be available to answer questions during the project phase and who will undertake any obligations of cooperation due from the contractual partner. The staff member who is nominated will receive a reasonable amount of training from us in the software program we create and will be available to CERTA as a contact person after the installation of the software program.

3.4. During the creation of the program CERTA is entitled to make use of the assistance of third parties.

3.5. In so far as the contractual partner places devices or other resources at our disposal for the purpose of the creation of the program, these must be specified separately in the software contract. These devices and resources will be returned to the contractual partner after the conclusion of the development work.

3.6. All amendments of the contents of the contract, the scope or nature of the services requested  by the contractual partner after the conclusion of the contract only become the subject matter of the contract with the express agreement of CERTA. We reserve the right to agree a change request only in conjunction with a corresponding adjustment of the remuneration.

3.7. The contractual partner must inform us without delay of any planned amendments of the hardware configuration or operating system during the performance of the order.  If the amendments affect the content of the contract we reserve the right only to agree to the amendments in conjunction with a corresponding adjustment of the remuneration.

3.8. The program development will be done in-house. The contractual partner must grant us adequate opportunities to use the system and adequate computer time for the purpose of the development of the program and running tests.

3.9. The contractual partner will receive a test copy of the program in coded and trialled form for the performance of the agreed functional tests and will also receive all the associated documentation. The final program version will be installed after any necessary changes have been made. The program will be installed in the contractual partner's registered office unless otherwise agreed in the particular case.

Standard software

3.10. The scope of the programs to be supplied under the contract is derived from the relevant program description and/or as supplemented by the user documentation. The functionality of the software corresponds to the performance overview of the software supplied. Individual amendments are the responsibility of the contractual partner.

3.11. The programs will be supplied in executable form along with one set of user documentation (in hard copy form, on data carriers or other media). The contractual partner must confirm receipt of the programs in writing.

3.12. The format and form of the documentation supplied by CERTA are at CERTA's discretion and will be aligned to the needs of a knowledgeable user. Documentation on hardware, operating system software, networks, data-bases and other system requirements do not constitute part of the documentation to be supplied.

3.13. CERTA is prepared to provide information about interfaces to other software which is not part of the subject of the contract.

3.14. The contractual partner is responsible for the start-up of the programs. This also includes the testing of the operating conditions. In so far as CERTA performs support services in this connection (e.g. preparation for use, installation, training, consultancy) these services will be invoiced separately at CERTA's relevant current fee rates applicable at the time.

Software maintenance

3.15. Maintenance contracts may be terminated by both contractual partners by giving three months' notice unless the parties have agreed otherwise in the particular case.

3.16. The contractual partner must test updated versions which have been sent to him, particularly those amended to suit his specific environment, before they are used live. The same applies for all amendments or modifications made available to the contractual partner; the testing must be independent of the method of making the amendments and modification accessible. The contractual partner will ensure that his data inventories have been electronically backed up before the use of the new software and that they will be archived for at least 12 months.

3.17. Maintenance services do not extend to hardware, operating system software, data-bases or other software components.


IV. Usage rights of the software supplied

4.1. CERTA grants the contractual partner the right to use the programs in the software supplied to the extent defined in each case.

4.2. The contractual partner is not entitled to modify, vary, translate, decompile, disassemble or otherwise attempt to access the software source code or to create derived software. He must particularly not circumvent the license module.

4.3. Unless agreed to the contrary in the particular case, sub-licenses may not be granted even to affiliated companies, or the license rights transferred to a third party unless previously agreed in the particular case with CERTA. If approval is not granted, the contractual partner can derive no rights herefrom.


V. Delivery/dates and deadlines

5.1. All information on delivery times are always approximate and non-binding unless expressly agreed to the contrary in the particular case.

5.2. Compliance with all delivery times presupposes the timely arrival of all documents, information and data, any necessary consents and approvals from the contractual partner as well as compliance with the agreed terms of payment and other obligations.

5.3. Operational breakdown of all kinds as well as all cases of force majeure and unforeseeable obstacles outside our control lead to a reasonable extension of the delivery time. If adherence to the contract thereby become unreasonable for the contractual partner or us, all the contractual parties have a right of withdrawal and termination.

In this case the services we have already performed and the goods we have supplied up to the termination of the contract will be invoiced in accordance with the provisions of the contract after taking account of the calculated profit.

5.4. Claims for compensation by the contractual partner for late delivery, completion or commissioning, even after a grace period set by us, are excluded in so far as we are not guilty of intent or gross negligence. In this case the contractual partner's claims for compensation are restricted to a maximum of 5% of the net order value. We are not liable for indirect loss or damage or consequential loss or damage which is not typical.


VI. Remuneration

6.1. Unless otherwise agreed in the specific case, prices are deemed to be ex the registered office of CERTA Systems GmbH and are strictly nett plus the costs of packaging and delivery as well as the travelling costs and out-of-pocket expenses of our staff at the rates applicable in our company at the time. All prices have to be increased by Value Added Tax at the rate applied by law if and in so far as Value Added Tax is due.

6.2. If the contractual partner should fall behind with a payment, CERTA, subject to the assertion of additional rights, will invoice default interest of nine percentage points over the base interest rate of the European Central Bank. CERTA is additionally entitled to refuse delivery of goods and programs in subsequent orders until open invoices have been paid in full.

6.3. Irrespective of the maturity of any bills of exchange which have been accepted and credited , all our receivables are due for immediate payment if a payment date has not been honoured or if the contractual partner breaches other contractual obligations or CERTA become aware of circumstances which are likely to reduce the contractual partner's creditworthiness.

In such a case CETA is also entitled to make further deliveries which are due only against prepayment or the furnishing of securities and, after setting a reasonable grace period, to withdraw from the contract or require compensation for failure to perform. We may also prohibit the on-sale of goods which have been delivered and are subject to retention of title, to require their return or the transfer of their indirect possession at the contractual partner's expense, and to revoke any authorisations to collect payments.

6.4. The off-setting of counter-claims of any nature and the assertion of rights of retention are excluded unless the counter-claim is uncontested or has been judged to be final and absolute.


VII. Acceptance of bespoke software on delivery

7.1. After the installation of bespoke software the contractual partner's program/system will be tested in respect of the functions described in the product specification. We will support the contractual partner while the test is being conducted. In so far as it is necessary for members of our staff to be present during the test phase, a separate charge will be levied at a reasonable hourly rate which will be set out in more detail in the software contract.

7.2. The software is deemed to be accepted after the successful conclusion of the functional testing. If the contractual partner fails to cooperate during the functional testing the software is deemed to have been accepted three weeks after conclusion of its installation.


XIII. Protection of business and company secrets

13.1. The contractual parties are obliged to treat information about the business and company secrets of the other contractual partner as confidential.

13.2 CERTA is entitled to use the know-how acquired in connection with the software development also in other applications. This does not apply if the legitimate business interests of the contractual party would be prejudiced thereby.

13.3. In so far as CERTA has to process personal data during its work on the software which is the subject of the contract, the data protection laws applicable in the Federal Republic of Germany will be observed and the necessary security measures taken.


IX. Liability

In so far as a liability is incurred in all other respects by CERTA in the performance of the contract , the following provisions apply to all statutory and contractual claims which can be asserted against CERTA:

9.1. Claims for compensation and claims for compensation for costs (hereinafter called "claims for compensation") on the part of the contractual partner for whatever reasons in law, particularly for the infringement of obligations arising from or in connection with contractual obligations, from faults prior to or during the conclusion of the contract and from tort, are excluded.

The above does not apply in cases of intent or gross negligence, loss of life, bodily injury and impairment of health, for the acceptance of a guarantee for the existence of an attribute (warranted properties) or a material breach of a contractual obligation due to negligence. In the event of our negligence our liability in every case is restricted to the foreseeable typical loss.

In no case are we liable above and beyond the legal entitlements. In so far as our liability is excluded or restricted, this also applies for the personal liability of our staff, vicarious agents, representatives and authorised persons.

9.2. The contractual partner's claims for a defect in the goods supplied or in our services become time-barred in one year calculated from the time of the delivery or the acceptance of the service. The same applies to the limitation period of claims arising from the infringement of obligation of information, consultancy and/or other accessory obligations.


X. Third party protective rights

10.1. The contractual partner is released from all third party claims against him arising from the breach of protective rights pertaining to programs developed and passed to the contractual partner in their contractual form.

10.2. The contractual partner is obliged to have any software amendments rendered necessary due to the assertion of protective rights installed by us.


XI. Ownership and copyright

11.1. The software programs supplied to the contractual partner including the documentation remain in our ownership.

11.2. All rights to the software products supplied, particularly rights under the German Copyright Act (Urhebergesetz), remain with CERTA everywhere in the world and CERTA is authorised to assert these in its own name. This also applies in the event that the contractual partner modifies these to an extent permitted by the contract or combines them with his programs or the program of a third party. The contractual partner must apply a copyright notice referring to CERTA in the event of modifications or combinations of this nature and when making copies of programs for contractual use. Every modification to the program by the contractual partner which could affect the program structure is only permitted after prior agreement with CERTA. Unauthorised amendments give rise to a right to extraordinary termination of the contract.

11.3. We reserve the unilateral right to modify the programs which are the subject of the contract and the associated accompanying material. We will inform the contractual partner in so far as an impairment of the use of the program by the contractual partner is possible as a result of the modification.

11.4. The contractual partner may neither alter nor remove marks such as trademarks, proprietary notices and copyright notices in the program and all associated accompanying materials.


XII. The contractual partner's obligations

12.1. The contractual partner may not make the programs supplied to him accessible  to third parties in whole or in part in any form whatsoever.  In the event of a culpable breach of this obligation by the contractual partner CERTA is entitled, without prejudice to other entitlements, to demand a contractual penalty of EUR 30,000.00 for each case of infringement. In the event of a repeated infringement, CERTA is also entitled to revoke the continued use of the software by the contractual partner without compensation. Contractual penalties which are incurred will be offset against any claims for compensation.

12.2. The contractual partner undertakes to assist our activities for the creation of the work. The contractual partner will in particular bring about all the conditions in the area of his business which are necessary for the creation of the work. The contractual partner warrants that the reports, organisational plans, drafts, lists and invoices prepared by CERTA as part of the order will only be used for his own purposes.


XIII. Protection of business and company secrets

13.1. The contractual parties are obliged to treat information about the business and company secrets of the other contractual partner as confidential.

13.2 CERTA is entitled to use the know-how acquired in connection with the software development also in other applications. This does not apply if the legitimate business interests of the contractual party would be prejudiced thereby.

13.3. In so far as CERTA has to process personal data during its work on the software which is the subject of the contract, the data protection laws applicable in the Federal Republic of Germany will be observed and the necessary security measures taken.


XIV. Separability clause

If individual clauses of these Terms and Conditions or specific accompanying agreements which have been concluded should be invalid in whole or in part, this does not affect the validity of the other clauses. In lieu of the invalid clause the parties will conclude a different but valid provision which typically comes as close as possible to the economic purpose of the invalid clause.


XV. Place of jurisdiction and applicable law

Cadolzburg is agreed as the place of performance for the services to be performed by the contractual parties and as the place of jurisdiction for all disputes between the parties. Only German law applies to the contractual relationships between the purchaser and ourselves. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 is excluded.

 

Information:


If you wish to print our GTC, please click here [PDF].


 

 

Contact

+ 49 9103 71550-0 
kontakt@certa-systems.com

Maintenance Contract

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