Terms & Conditions Camptocamp Germany GmbH

Version : 08.2018

§ 1 Scope of application

The following General Terms and Conditions apply to all contracts between Camptocamp Germany GmbH and its business partners (hereinafter referred to as "customer"). Deviating, conflicting or supplementary general terms and conditions of the customer, even if known, will not become part of the contract, unless their validity is expressly agreed to in writing. In this respect, these General Terms and Conditions of Business shall also apply if Camptocamp Germany GmbH performs services for the customer without reservation in the knowledge that the customer has conflicting or deviating terms and conditions. Promises and additional agreements always require the written confirmation of Camptocamp Germany GmbH.

Camptocamp Germany GmbH has the right to change these General Terms and Conditions with a prior period of one month. The amended General Terms and Conditions shall come into force one month after receipt of the respective notification of change by the customer, unless the customer objects. Should the customer object to the change, Camptocamp Germany GmbH is entitled to terminate the contract with the customer with one month's notice.

The respective individual agreements or the current service specifications of Camptocamp Germany GmbH apply to the scope of services.

§ 2 Services

Camptocamp Germany GmbH provides of-fene software to the customer free of charge by granting the customer the non-exclusive and non-transferable right to use the software in unchanged form.

In this context Camptocamp Germany GmbH offers various services for customers and companies in the area of maintenance and error correction of this software. In the context of this activity different kinds of assistance are offered, such as telephone support, remote maintenance via the Internet or on-site service as well as project-related activities. This is done either through individual orders or through a permanent service or maintenance contract. These general terms and conditions apply to the services of Camp-tocamp Germany GmbH.

The customer is responsible for the project and its success. Camp-tocamp Germany GmbH provides the contractually agreed services according to the principles of proper execution of the call.

Camptocamp Germany GmbH has the right to fulfil its obligations towards the customer through a third party, whose assignment must be explicitly approved by the customer in writing. This approval may only be denied by the customer for good cause.

§ 3 Offers and acceptance

The offers of Camptocamp Ger-many GmbH are not binding. Contractual declarations of both parties must be in written form. In case of doubt, the offer or the order confirmation of Camptocamp Germany GmbH is decisive for the content of the contract. A written confirmation of the offer or the confirmation of the order by the customer is not required if the customer makes use of the services described in the offer or confirmation of the order of Camptocamp Germany GmbH in the form described there.

§ 4 Online trade

The offers and prices on the websites of Camptocamp Germany GmbH do not represent a binding offer to the customer. The product photos shown are only of symbolic character. Any manufacturer links or product data sheets in PDF format serve as non-binding, further information for the homepage visitor. The sending of an online order by the customer is only an offer to conclude a sales contract.

After receipt of the online order, the customer receives an automated e-mail confirming the receipt of the order. This confirmation does not represent an acceptance of the customer's offer by Camptocamp Ger-many GmbH. After processing the order the customer receives a separate order confirmation. This will be sent either in writing or as a signed attachment by e-mail in PDF format. In this order confirmation the agreements and modalities relevant for the order are specified. The contractual relationship between Camp-tocamp Germany GmbH and the customer is concluded with the receipt or delivery of the order confirmation to the customer.

An online ordering option exists only after the complete entry of the login and password. For the first order a registration as "new customer" is necessary. For further orders it is sufficient to enter the login and password which the user defined during the initial registration.

The customer must ensure that the e-mail account he/she has specified is accessible and that smooth communication in connection with the order via e-mail functions. Furthermore, the customer has to protect his customer password against misuse by third parties and may not pass it on to third parties.

§ 5 Software products

Camptocamp Germany GmbH provides the customer with free of-fene (free) software, which is free of rights of third parties, especially license claims. Camptocamp Germany GmbH will provide the customer with such license-free software to the best of its knowledge and under exclusion of any liability.

The provided software products are standardized software which originates from third parties or Camptocamp Germany GmbH. Camptocamp Germany GmbH provides the customer with the software on a suitable data carrier. Camptocamp Germany GmbH is entitled to make the software available in a form which can be accessed and stored by the customer on the Internet, unless this is unreasonable for the customer.

The rights of use of the software used result from the following licenses and are hereby acknowledged by the customer: Open Source is marked as free software by the Linux General Public Licence GPL and the licence certificate of Camptocamp Germany GmbH. Non-public software is limited by the respective license of the manufacturer.

The above mentioned products are standardized software which is not individually adapted. In this respect Camptocamp Germany GmbH does not guarantee for a certain purpose or that the features of the software meet individual requirements.

Possible existing warranty rights must be notified in writing within a period of one week in case of obvious defects. Camptocamp Germany GmbH is only liable for material and legal defects in the case of fraudulent concealment.

Camptocamp Germany GmbH has the right to forbid the customer to use the provided software if the customer is in default of payment obligations to Camptocamp Germany GmbH. The right to use the software is automatically revived only after all due claims of Camptocamp Germany GmbH against the customer have been settled or Camptocamp Germany GmbH expressly permits use.

§ 6 Project-related activities

The elaboration of individual concepts and programs as well as all other project-related activities shall be carried out in accordance with the type and scope of the binding information, documents and aids provided in full by the customer. Basis for the production of individual programs is the written service description, which Camptocamp Ger-many GmbH prepares against calculation of costs on the basis of the documents and information made available to it and which are examined by the customer for correctness and completeness.

§ 7 Software maintenance/maintenance

Camptocamp Germany GmbH takes over the maintenance of the software products handed over to the customer for the duration of the contract. The extent of the software maintenance is determined by the respective agreements. Within this framework the customer is obliged to accept the software updates and any other software maintenance services. The installation of the updates is carried out by the customer himself, unless the contracting parties agree otherwise.

Camptocamp Germany GmbH is only obliged to make every effort to correct errors, as the possibilities for actual correction depend on the systems found at the customer's site. The customer is aware that the software supplied by Camptocamp Germany GmbH is so-called open software which was not developed by Camptocamp Germany GmbH especially for the customer. In this respect the software provided is standard software.

The software maintenance includes function extensions and other improvements as well as the elimination of programming and program errors. A program error does not exist if it is an operating error on the part of the customer or if the minimum system requirements specified by Camptocamp Germany GmbH are not met. In any case the customer is obliged to ensure proper data storage. In particular, he is obliged to make a data backup before installing an update or before implementing a maintenance service and to keep a corresponding usable backup copy which allows the reconstruction of lost data with reasonable effort.

The customer himself has to take care of the data backup, because Camptocamp Germany GmbH does not take responsibility for the preservation and reusability of existing data and programs when carrying out service work.

The responsibility for data security lies solely with the customer as explained above. Exceptions are only made if this is explicitly and contractually agreed to be part of the service of Camptocamp Germany GmbH.

§ 8 Duration of contract for maintenance/service contracts

The contractual relationship begins with the signing of the respective maintenance or service contract or by the customer making use of the services described in the offer or order confirmation of Camptocamp Germany GmbH and is concluded for an indefinite period of time.  The maintenance contract can be cancelled at the end of the contract year by giving 6 weeks notice. The service contract can be cancelled with a notice period of 6 weeks to the end of the quarter. Cancellations always require the written form of one of the contractual partners. The right of extraordinary termination of the contract for good cause remains unaffected. An important reason is given in particular if

one of the parties breaches a material obligation under this contract and does not remedy this breach of contract immediately after written warning of the other party, the customer does not pay due fees despite reminder.

§ 9 Obligation of the customer

The customer has to provide Camptocamp Ger-many GmbH with all access data for the system to be maintained, as far as this is necessary.

In addition, the customer is obligated to support Camptocamp Ger-many GmbH or its employees adequately in the fulfillment of the agreed upon tasks. This includes in particular:

• Provision of and free access to the devices and programs (hardware and software) affected by the changes
• Provision of all necessary documents, information and resources that Camptocamp Ger-many GmbH needs to implement the project
• Provision of the available data backup sets
• Provision of all information necessary for the performance of the contract
• Provision of workplaces with access to telephone and fax for employees of Camptocamp Germany GmbH.

If Camptocamp Germany GmbH is to provide auxiliary or operating materials beyond the scope of the contract, these will be charged separately to the customer. The customer is obligated to ensure that a competent contact person is available for any questions that may arise, whom Camptocamp Germany GmbH or its employees can contact and who is authorized to make legally binding declarations.

If the customer does not or only incompletely fulfil his or her obligations to cooperate, the customer has to pay Camptocamp Germany GmbH separately for the additional work. Camptocamp Ger-many GmbH's claim for compensation from the customer remains unaffected.

§ 10 Fees

The services provided by Camptocamp Germany GmbH are invoiced according to the respective agreement based on the valid price list. The prices stated there are subject to value added tax at the statutory rate.

Service fees for permanent service contracts and services will be invoiced on the last day of the respective month, unless otherwise agreed in the contract.

Payments shall be used in advance to settle the oldest debt plus the resulting interest on arrears, any legal costs incurred and, finally, payment on the invoice amount.

§ 11 Acceptance

The services of Camptocamp Germany GmbH usually consist of the delivery of a software distribution of free software, hardware and services. The services include consulting, installation and training, commissioning and other IT services.

Therefore no acceptance is usually necessary. If the customer insists on an acceptance, this must be regulated in writing in the individual contract with scope and procedure.

If an acceptance is agreed upon, the customer declares the acceptance in writing immediately after the successful performance of Camp-tocamp Germany GmbH. If the customer refuses the acceptance, he/she declares this immediately in writing with an explicit listing of the performance defects. Acceptance may not be refused due to minor defects. The acceptance deficiencies and the agreement to remedy them are recorded in the acceptance declaration.

If the customer does not declare acceptance or the reasons for non-acceptance in due time, Camptocamp Germany GmbH can set a reasonable deadline for the declaration to be made. The services rendered are considered accepted after the first of one month if the customer neither declares acceptance nor gives reasons for non-acceptance.

§ 12 Reservation of title

Camptocamp Germany GmbH reserves the right of ownership of the goods delivered to the customer until full payment of all claims existing at the time of delivery or arising later from this contractual relationship.

If the customer is in arrears of payment and if there is a significant violation of the duty of care or custody, the assertion of the reservation of title by Camptocamp Germany GmbH does not constitute a withdrawal from the contract, unless Camptocamp Germany GmbH expressly informs the customer. If Camptocamp Germany GmbH asserts its retention of title, the right of the customer to continue using the software expires. All program codes created by the customer must be handed over or deleted.

§ 13 Data protection/confidentiality

Each contracting party assures the other party to treat all trade secrets brought to its knowledge by the other party in connection with this contract and its execution as such and not to make them accessible to third parties, insofar as these

- are not generally known, or

- were already known to the consignee in advance without any obligation of secrecy, or

- the recipient is informed or handed over to the recipient by a third party without a confidentiality obligation, or

- have been demonstrably developed independently of the recipient, or

- must be disclosed on the basis of a legally binding official or judicial decision.

Camptocamp Germany GmbH on its part obliges its employees to comply with the provisions of the Data Protection Act.

Customer data is electronically recorded and processed by Camp-tocamp Germany GmbH. Company and business secrets of the other contracting party which have become known in the course of the business relationship will be treated confidentially even after the business relationship has ended.

Camp-tocamp Germany GmbH uses the data for the processing of legal transactions and for communication with the customer. The data will be passed on to third parties to the extent necessary for the processing of the business.

The customer gives his explicit consent to be included by Camptocamp Ger-many GmbH in the publicly accessible customer directory and to be named as a reference customer of Camptocamp Germany GmbH.

§ 14 Liability

Camptocamp Germany GmbH is always liable to the customer for damages caused by Camptocamp Germany GmbH, its legal representatives or vicarious agents intentionally or through gross negligence, according to the product liability law and for damages resulting from injury to life, body or health for which Camptocamp Germany GmbH, its legal representatives or vicarious agents are responsible.

Camptocamp Germany GmbH is not liable for slight negligence, except in cases of breach of an essential contractual obligation (cardinal obligation). Liability for material and financial damages is limited to typical and foreseeable damages. This also applies to loss of profit and missed savings.

Liability for other consequential damages is excluded.

For an individual case of damage, liability is limited to the value of the order, in the case of ongoing remuneration to the amount of remuneration per contractual year. The parties to the contract may agree in writing on a more extensive liability upon conclusion of the contract.

In case of loss of data, Camptocamp Germany GmbH is only liable for the expenses which are necessary for the recovery of the data in case of a proper data backup by the customer. In the case of slight negligence on the part of Camptocamp Germany GmbH, this liability will only apply if the customer has made a proper data backup immediately before the measure leading to the loss of data.

The liability for indirect or consequential damages, such as lost profits, unrealized savings, interruption of operations, claims of third parties as well as consequential damages or damages resulting from data loss is excluded within the scope of legal possibilities.

§ 15 Travel costs and expenses

If you arrive by car, a flat rate is charged for each kilometre travelled. This covers travel time and vehicle costs.
Costs for travel by public transport and overnight stays will be charged on a time and material basis. 
Travel expenses will be charged according to the legal basis.

§ 16 Force majeure

Impediments to performance caused by force majeure or similar unforeseen events for which neither party is responsible shall entitle each party to postpone the performance owed by it under this contract for the duration of the impediment. This shall not apply to payments owed according to the respective contractual relationship.

§ 17 Set-off/Retention Right/Cession

The customer is only entitled to offsetting rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, the customer is entitled to exercise a right of retention insofar as his counterclaim to a substantiating counterclaim is transformed into a claim for damages.

The customer may only assign claims arising from this contract with the prior consent of the contractual partner. § 354 a HGB remains unaffected.

§ 18 Choice of law and place of jurisdiction

The parties to the contract agree to apply the law of the Federal Republic of Germany with regard to all legal relationships arising from this contractual relationship, excluding the UN Convention on Contracts for the International Sale of Goods. As far as legally permissible, Munich is agreed as the exclusive place of jurisdiction for all disputes arising in the course of the execution of this contractual relationship.

§ 19 Final provisions

Collateral agreements and amendments to the contract must be in writing to be valid. This also applies to the cancellation of this written form clause.

Should individual provisions of this contract be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a provision which comes as close as possible to the economic objective of the invalid provision in a legally permissible manner.