1.1 These Terms & Conditions apply to all contractual relationships and pre-contractual negotiations with the customers of Coextant Systems GmbH, regardless of the type and scope of Products/Services provided in the context of existing and future business relations, and from herein Coextant Systems GmbH will be called ‘Contractor’ and the customer will be called ‘Client.’ These Terms & Conditions also apply to all usage of Coextant’s Web sites.
1.2 The Contractor’s Terms & Conditions shall apply exclusively. Any terms and conditions of the Client which, conflict with or deviate from these Terms and Conditions shall not apply unless the Contractor has explicitly consented to the application thereof in writing.
2. Products and Services
2.1 The Contractor sells software licenses for its own ‘Products’ and Product add-ons, which includes software and all documentation, literary or other copyrighted works and the Contractor also sells licenses for third party products.
2.2 Alongside software licenses the Contractor also offers ‘Software Maintenance’ for its own Products (eg software updates) and in some cases Software Maintenance for third party products.
2.3 ‘Services’ of the Contractor include software implementation solutions based on its own Products (eg. specifications, programming, installation, training, data migration, system integration, bug fixing, Interfaces) and may either be classed as a ‘Special Order Contract’ or as a ‘Service Contract’ on time and materials basis. Other services may also include Software Support and Maintenance.
3. Offer and Conclusion of the contract
3.1 The offer includes a description of the Products, Services, the planning and execution of conditions, the definition of the functions and specifications (performance) of a product, including information on how to use upcoming parts, equipment, software and other necessary products. Documents relating to the offer (such as product fact sheets, sample documentation) remain the property of the Contractor and may not be reproduced or distributed to third parties without prior permission of the Contractor.
3.2 The date of the conclusion of a contract shall be the date on which the offer is signed by the Client/ Contractor or the date on which the order confirmation is received by the Client.
4. Responsibilities of the parties, Acceptance and Performance Conditions
4.1 Under a Special Order contract, the Contractor is responsible for the supervision and management of the services contracted for and the delivery of such services and/or final product. Given the nature of the industry it is not possible to exclude all errors in the information technology programs under all conditions.
4.2 Under a Services Contract the Contractor takes responsibility for the benefits of advice and support given to the client during the provision of such services.
4.3 Under both a Special Order Contract and a Service Contract it is the client’s responsibility to clearly define the essential criteria with respect to the scope and effect of the desired result, which becomes the object of the contract when it is signed and meets the duty to cooperate in a timely manner where appropriate. The Contractor will not be responsible for a result if the above conditions are not met.
4.4 The Contractor can offer a timetable for the provision of services, for example a scheduled date for the termination of Service Contract benefits and a scheduled or fixed deadline for the completion and handover of a Special Order Contract.
4.5 Under Special Order Contracts, unless otherwise stated in the offer, the closing date is the date by which the fulfillment of the contract according to established criteria must be proved and also the acceptance by the client including the provision of test data and test scenarios.
4.6 Significant deviations from the agreed performance parameters and acceptance criteria do not entitle the Client to refuse acceptance.
4.7 The Client must declare acceptance in writing within 14 days of receiving a written request for acceptance from the Contractor, unless another time limit has been agreed. During this test period the Client will be able to assure himself by carrying out such acceptance tests as required. In acceptance, a document signed by both parties must be prepared, confirming the compliance of the agreed services to the acceptance criteria.
4.8 Unless agreed to the contrary, a reported defect will be assigned to one of the following categories:
Category 1: Work performance has a defect that renders its use impossible or only permits it with serious restrictions
Category 2: The work performance has a defect that restricts its use without being a category 1 defect
Category 3: The work performance has a defect that only slightly restricts its use.
4.9 In the event of a Category 1 defect, the Client may refuse to give a declaration of acceptance. The Contractor shall properly rectify any reported defects with category 1 effects within a reasonable period of time, so that there are no longer any further category 1 effects. If the acceptance test cannot be properly continued due to such a defect, its effects or its rectification, the acceptance period for the affected goods and services shall be reasonably extended.
4.10 Subsequent acceptance tests for other services shall not affect any partial acceptances already declared. The same applies to acceptance tests already carried out, unless these are affected by a defect or its rectification.
4.11 The goods and services shall be deemed fit for acceptance, if there are no category 1 defect effects. In that case, the Client shall declare acceptance immediately after any tests have been completed, though at the latest at the end of the test period.
4.12 The goods and services shall be deemed to have been accepted, even without an explicit declaration and without a request for acceptance from the Contractor if:
the Client takes the goods and services into use other than for test purposes, or
the Client does not report a defect that would prevent acceptance within the acceptance period in accordance with this section.
the Client does not report any defect that would prevent acceptance within a reasonable period set for him by the Contractor and where the Contractor indicated this consequence when setting the deadline, or
the Client uses components productively.
4.13 Unless agreed to the contrary, definable partial performance shall also be accepted individually in accordance with these rules.
5. Change requests
5.1 As long as the software has not yet been delivered by the Contractor, the Client may request a change of the requirements in writing at any time, provided that the scope of the change request is reasonable compared to the overall order and is based on factual considerations. The Contractor shall comply with this change request unless it cannot be reasonably expected of the Contractor to do so due to its specific operational situation.
5.2 If such a Client change request leads to a more than insignificant shift in the contractual balance between the service and the consideration for it, the parties shall promptly make a written adjustment to the contractual provisions with regard to the key content of the contract (in particular remuneration, delivery time, etc.). If the parties are unable to reach an agreement within four weeks from receipt of the change request by the Contractor, the order shall be carried out without taking into account the change request.
6. Prices and Payments
6.1 The prices for Products, Special Order Contracts and Service Contracts will be calculated either as a fixed price listed in the offer or on a variable time and materials basis unless agreed otherwise by the parties. Other services such as accommodation and travel expenses will be charged in addition to the price listed in the Offer.
6.2 Prices for Special Order and Service Contracts calculated on a time and materials basis will be fixed for the first twelve month after which they may be altered from the commencement of the thirteens month. This is subject to the right of termination by the Client.
6.3 Prices for Special Order and Service Contracts on a time and material basis indicated in the Offer are estimates only and are non-binding. The estimates are based on a survey conducted in a good faith assessment of the extent and scope of the services required. If the Contractor determines during the course of service that the cost of the provision of services exceeds the estimated price, the Contractor will inform the Client immediately. Pending the submission of written consent of the client, the initial estimate will not be altered. All prices contained in the offer or the contracts are exclusive of any taxes applicable at the time of delivery.
6.4 Payments are due upon receipt of the invoice and must be paid within 20 days. If the Client defaults on the payment of the amounts due for more than 20 days, the Contractor shall be entitled to charge interest on arrears at 5% above the applicable base interest rate p.a.
7. Deployment of personnel
7.1 The contracting parties shall each appoint a contact person for the mutual coordination and clarification of all questions arising in the course of service delivery.
7.2 The Contractors are responsible for the provision of services under the contract and for the selection, supervision, management and control of personnel. If the Contractor enters the premises of the Client for the purposes of completing a contract, the Contractor will be in control in these circumstances.
8. Ownership, Software License Agreements and Copyrights
8.1 The ‘Products’ provided to the Client (excluding software which are subject to their own license terms), shall remain the property of the Contractor.
8.2 All Products are supplied to the Client under the terms and conditions of the applicable Licence Agreement. It is the sole responsibility of the Client to comply with all of the terms and conditions of the Licence Agreement, and the Client is hereby notified that any failure to comply with such terms and conditions may result in the revocation of its licence to use the Products.
8.3 The Contractor shall remain the holder of all copyrights and rights of use to the Product provided to the Client, including the associated documentation, even if the Client modifies this software or if he combines them with his own software and/or those of third parties. The Client must apply an appropriate copyright notice if he makes such modifications or combinations or if he produces any copies.
8.4 Unless the offer provides otherwise, the client receives a copy of the specified Products which are subject to an irrevocable, non-exclusive, worldwide right to use copies of these Products within his company for any purpose.
8.5 In circumstances where the Product is developed by both the employees of the Contractor and the Client jointly, both parties will have rights in the property for this purpose. Each party has the right to grant licenses to such products to third parties or transfer its rights in such property without the need to remunerate or acquire the consent of the other party.
8.6 Changes and extensions to the Products made at the Client’s request and at the Client’s expense shall become the property of the Contractor and may be made available to other Clients by the Contractor with the Clients’ consent, provided that a corresponding agreement is reached between the Client and the Contractor on a case-by-case basis. The rights of use to the Product enhancements shall be assigned to the Contractor. The Contractor herewith accepts this assignment.
8.7 Changes to the Products by the Client shall only be permissible with the prior written consent of the Contractor. Consent may only be withheld for good cause. The Contractor shall be supplied with a copy of the change on a data medium or in printed form together with all the necessary information in case of such changes. Use of the changed software requires the Client’s consent.
8.8 If Products modified by the Client or third parties or other programs not supplied by the Contractor are used and if this impairs the functioning of the system, the Contractor shall not be liable for the damages incurred.
9. Warranties (defects)
9.1 With respect to Special Order Contracts the agreed quality of the delivered objects is determined exclusively by the Contractors Product descriptions or specifications, the respective documentations or, if existent, the cover letter.
9.2 The Client must install the software delivered by the Contractor immediately and test it for its functionality and for deficiencies. The Client has to report defects in writing immediately, but no later than 1 working day after discovery, if the defect is discovered later within the warranty period. The defect must be described in a comprehensible format.
9.3 The Contractor is obligated to rectify the defect at its choice by subsequent improvement or replacement within a reasonable time frame, if defects of the delivered objects and/or software nullify the use of these for the contractually agreed purposes or reduce these.
9.4 The subsequent improvement can also be achieved at the Contractors choice by delivering a workaround with an equivalent functionality. The Contractor is allowed at least two subsequent improvement efforts. In case of a failure, the client can at his choice either reduce the purchase price or withdraw from the contract. A withdrawal is excluded in case of insubstantial deviation from the use intended under the contract, in case of slight impairment of serviceability, normal wear or for any claims resulting from excessive use, improper production facilities or due to other external influences and other causes beyond the Contractor’s control.
9.5 For defects of standard software of other manufacturers delivered by the Contractor, which cannot be repaired by the Contractor for licensing or other reasons, the contractor will, independent of its own liability, at its choice exercise its claims based on defects against manufacturers or suppliers of standard software on behalf of the Client or will transfer its claims to the Client.
9.6 The Client has the obligation to support the Contractor to the greatest possible extent in removing the defect, especially by providing required information and, if required, making error reports available.
9.7 The liability for defects is not applicable, if the Client modifies the delivered object or has it modified by third parties without the Contractors’ consent, unless the Client can show that the respective defect is not caused by the modification and that the defect resolution will not be made impossible or unacceptable by the modification. This is also true for unauthorized use with third party hardware or software or use of the delivered objects, which is not contractual and/or appropriate. In any case, the Client must cover the additional cost for removing the defects caused by the modifications.
9.8 The defect claims are valid for 12 months and starts from the acceptance date.
9.9 Any further claims are excluded except in case of fraudulent intent, in case the Contractor has given a guarantee for a specified quality of the products or parts thereof or in case of willful intent, gross negligence, injury to live, limb and health as well as in the case of a liability according to the German Product Liability Act.
10. Indemnities and Limits of Liability
10.1 The Contractor will indemnify the Client for direct physical injury or death caused solely either by defects in any of the Products or by the negligence of its employees acting within the course of their employment and the scope of their authority.
10.2 The Contractor will indemnify the Client for direct damage to property caused solely either by defects in any of the Materials or by the negligence of its employees acting within the course of their employment and the scope of their authority. The total liability of the Contractor in such circumstances will be limited to 15,000 Euros for any one event or series of connected events.
10.3 Subject to clauses 10.1 and 10.2 the Client’s liability for any breach of these Terms and Conditions or the Contract will be limited to a refund of the charges paid by the Client for the Products. In no event will the Contractor be liable for any costs of procurement of substitute products.
10.4 Except as stated in clause 9, this clause 10 and clause 11, the Contractor disclaims all liability to the Client in connection with these Terms and Conditions including the Client’s use of the Products, and in no event will the Contractor be liable to the Client for indirect or consequential damages or for loss of profits or arising from loss of data.
11. Intellectual Property Rights Indemnity
11.1 The Contractor, at its own expense, will defend or cause to be defended or, at its option, settle any claim or action brought against the Client on the issue of infringement of any intellectual property right by the products. Subject to the other conditions of this clause, the Contractor will pay any final judgment entered against the Client with respect to any Claim, provided that the Client:
notifies the Contractor in writing of the Claim immediately on becoming aware of it;
grants sole control of the defence of the Claim to the Contractor; and
gives the Contractor complete and accurate information and full assistance to enable the Contractor to settle or defend the Claim.
11.2 If any part of the products should become the subject of any claim, or if a court judgment is made that the Products do infringe, or if the use or licensing of any part of the Products is restricted, the Contractor at its option and expense may:
obtain for the Client the right under the patent, design right, trade secret or copyright to continue to use the Products; or
replace or modify the Products so that they become non-infringing; or
if the use of the Products is prevented by permanent injunction, accept return of them and refund an amount equal to the sum paid by the Client for the Products, subject to straight-line depreciation over a five-year period.
11.3 The Contractor, its affiliates and sub-contractors will be indemnified by the client from third party claims and will have no liability under this clause for:
any infringement arising from the combination of the Products with other Products not supplied by the Contractor; or
the modification of the Products unless the modification was made or approved expressly by the Contractor; or
supplying the Client with any information, data, service or applications assistance.
11.4 In no circumstances will the Client be liable for any costs or expenses incurred by the Client without the Client’s written authorisation and the foregoing states the exclusive remedy of the Client in respect of any intellectual property right infringement by the Products.
12.1 The Client can cancel a contract after giving one months notice. In this case the Client will pay the agreed price for the contractual services less costs proportionate to those not incurred by the Contractor due to the termination.
12.2 Both the Contractor and the Client may terminate a contract if the other parties contractual obligations are not fulfilled after a reasonable grace period has been given. In cases where there has been a minor breach of contract, termination of the contract is excluded. If the Client terminates the contract for reasons which are the responsibility of the Contractor, the Client will only pay the agreed upon price for services received which can be utilised by the Client.
12.3 In the event of termination the Contractor will fulfill it contractual services until the effective date of termination or after a schedule agreed with the Client.
13.1 You may be asked to submit personal data when using the website of the Contractor. This data will only be stored and processed in connection with the purpose of individually accommodating your needs and supplying you with the information you requested. You can revoke this consent at any point in time with immediate future effect by contacting the Contractor using the contact information provided on the website. The Contractor will treat all information submitted by you in the course of using this website according to the existing laws governing data protection.
13.2 The Client agrees that the Contractor and its affiliates may store their information, including names, phone numbers and e-mail addresses in all countries where the contractor and its affiliates do business. Such information may be passed on to sub-contractors, and authorized persons of the contractor for the purpose of the joint business activities, including communication with the client, (e.g. For advertising campaigns and marketing).
13.3 The Contractor and the Client undertake to treat as confidential all business and operational secrets of the other party for an unlimited period of time and not to forward these to third parties subject to clause 12.2, or use them in any other way. The documents and other information, which the other party receives as a result of the business relationship must not be used by this party for anything other then the relevant contractual purpose.
14. Business Partners
14.1 The Contractor has certain relationships with business partners for the marketing and support its products and services. The Contractor is responsible if the partner provides products offered subject to these Terms and Conditions. The Contractor is not responsible for the business activities of the partner or any commitments made by the business partner with respect to products offered under their own contracts.
15.1 The Contractor is entitled to commission third parties for the provision of the agreed services or parts thereof.
15.2 The transfer of rights under this contract, requires the prior written consent of the other party. The consent may be withheld only for good reason.
15.3 It is the responsibility of the Client to comply with all import and export laws.
15.4 The sole place for jurisdiction for all disputes directly or indirectly arising from the parties’ business relationship shall at the Contractors’ choice either be, Stuttgart or the registered office of the Client. Stuttgart is the exclusive place of jurisdiction for any claims against the Contractor. Compulsory legal regulations for exclusive jurisdictions remain unaffected.
15.5 The relationship between the Contractor and the client is exclusively subject to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the
15.6 International Sale of Goods (CISG) shall be excluded.
15.7 The Contractor reserves the right to change and/or amend these Terms and Conditions at any time, the Client will be notified of such changes and/or amendments in writing.
15.8 If one or more provisions of these Terms and Conditions become invalid or void, the validity of the remaining provisions shall remain unaffected.