1. These General Terms and Conditions of Business (GTC) apply in principle to all services, which are performed by codafish GmbH as contractor for the principal/customer (hereinafter referred to only as the Principal and namely irrespective of the nature of the underlying legal transactions.
2. These GTC also apply, insofar as the parties are mutually engaged in a trading operation, to all future agreements with the Principal, without the need for codafish GmbH repeatedly to advert to its GTC in every individual case or for them to be included separately in the new contract. In this case the version of these GTC in force in each case is definitive.
3. The General Terms and Conditions of Business of the Principal shall not become a component of the contract, even where codafish GmbH performs a service, without expressly repudiating such third-party conditions prior to or at the time of concluding the contract.
II. Conclusion, order of precedence
1. All offers and services of codafish GmbH are addressed solely to companies within the meaning of § 14 German Civil Code, merchants within the meaning of the German Commercial Code, legal entities under public law or special funds under public law, unless otherwise stated in individual cases.
2. All offers from codafish GmbH (hereinafter: offers) are without obligation and subject to confirmation, unless otherwise expressly provided herein.
3. Contracts between codafish GmbH and the Principal come into existence only if the Principal places an order with codafish GmbH by signing its offer unconditionally and without amendment and sending it to codafish GmbH in textual form (award of contract). With the award of contract, the Principal initially issues a binding offer to enter into a contract and in addition codafish forwards to the Principal - by e-mail, fax or in written form in accordance with its option - a statement confirming the conclusion of the contract (order confirmation) The respective contract does not come into existence until receipt of this order confirmation.
4. In every case the individual, written agreements concluded in the respective contract between codafish GmbH and the Principal (including collateral agreements, additions, amendments) take precedence over these GTC which, however, similarly apply.
III. Contents of contract, services
1. Unless it has been otherwise agreed in the respective contract between codafish GmbH and the Principal, the time limits and deadlines specified by codafish GmbH, in particular release dates or completion deadlines, are always binding.
2. If codafish GmbH is unable to fulfil an order by a fixed deadline agreed by contract, codafish GmbH shall inform the Principal thereof without delay, indicate the probable duration of the delay and state the reasons, which have caused the missed deadline. This shall apply in particular, if the Principal does not comply with its obligation to cooperate. In the event of delays the contractual partners shall endeavor to fix a new amicably agreed completion deadline.
3. In cases of force majeure or unforeseeable incidents, which cannot be attributed to the parties to the contract or which are beyond their control (in particular, disruptions to operations and traffic, difficulties in energy supply, mechanical defects, accidents, strikes, lock-outs, fire, distraint, war, riot, unrest, embargoes, explosion, flood, severe weather conditions, pandemics or epidemics, in-house lawful industrial disputes) the service is interrupted for a downtime and at the option of codafish GmbH either the Principal shall accept a proportional extension of the cancelled services or the claim for remuneration shall be reduced pro rata commensurate with the downtime. Incidents of this nature do not entitle the parties to cancel the contract until the party giving notice to terminate can no longer be expected to continue to comply with the contract.
4. codafish GmbH is permitted to employ a professionally qualified third party (subcontractor) to perform in full or in part their respective services covered by the contract.
5. The Principal has no right to issue instructions to the employees of codafish GmbH. In the course of their operating procedures codafish GmbH employees are also not bound by on-site deadlines on the Principal's premises.
IV. Rights and duties in the transfer of software
1. codafish GmbH supplies the software, which is the object of this contract, in accordance with the Product Specification in the documentation. The Product Specification in the documentation is solely definitive for the properties and condition of the functionality of the software. codafish GmbH accepts no liability for more extensive properties and condition. The Principal is in particular not entitled to derive such obligations from other illustrations of the software in public statements or arising from the advertising of codafish GmbH, unless codafish GmbH has expressly confirmed in writing the more extensive properties and condition.
2. Warranties require the express, written confirmation of the codafish GmbH Executive Board. Unless otherwise agreed in the IT contract, the software shall be delivered to the Principal in its current version. At the option of codafish GmbH, the software shall be delivered to the Principal either by dispatching the software covered by the contract on a DVD or other data storage media (physical dispatch) or by providing it for download (electronic delivery). In the case of physical dispatch, the date and time at which codafish GmbH delivered the data storage media to the shipping agent is definitive for compliance with delivery deadlines. In the case of electronic delivery, the date and time, at which the software covered by this contract is available for download is definitive for compliance with delivery deadlines.
3. In the relationship with the Principal all rights in the software covered by the contract, in particular copyright and other industrial property rights, are the property of codafish GmbH or the third-party provider. The foregoing applies accordingly to all other software, goods, work results and data delivered to the Principal as part of the contract negotiations and execution, including supplementary performance and maintenance.
4. The Principal is granted only those rights in the software and other third-party software, which are necessary for its use. The Principal may use the software covered by the contract only to the extent specified in the contract. All more extensive rights, in particular the right to dissemination, including leasing, translation, processing, reproduction, arrangement of the software and making it publicly accessible remain exclusively with codafish GmbH and/or its respective third-party provider. Other details are governed by the IT contract. The Principal must possess the necessary rights of use, in particular for all persons, who use, directly or indirectly, the software covered by the contract. The Principal's business partners are permitted to use the software covered by the contract solely by screen access and only in conjunction with use by the Principal. In the case of trial delivery, the Principal's rights of beneficial use are restricted to those actions, which serve to establish the condition of the software covered by the contract and whether it is suitable for the Principal's operations.
5. The Principal may operate data storage in accordance with the rules of engineering and for this purpose may generate the necessary backup copies of the software covered by the contract. A backup copy on a portable data storage device must be marked as such and must bear the copyright notice. The Principal must not alter or remove the copyright notices of codafish GmbH or third-party providers.
6. If the Principal receives from codafish GmbH copies of new versions of the software covered by this contract (e.g., as part of subsequent improvement or maintenance) to replace the previously delivered software version, the right of use granted to the Principal exists in each case solely with respect to the most recently delivered version. The right of use with respect to the previously delivered version is extinguished as soon as the new version is implemented for use on productive systems.
7. Subject to any agreement expressly concluded by way of derogation in textual form as a minimum, the Principal is not entitled to generate or use modifications to the software covered by the contract or to allow third parties access thereto.
8. The Principal itself is responsible for any malfunctions whatsoever in the procedure, security or performance of the software covered by the contract and other programs, and the communication of the software covered by the contract and other programs (referred to jointly as malfunctions), which are caused by the Principal's modifications or add-ons to the software covered by the contract. codafish GmbH expressly draws the Principal's attention to the fact that add-ons and minor modifications to the software covered by the contract may led to unforeseen and material malfunctions, in particular in the use of the software. Malfunction of this nature also arise subsequently because an add-on or a modification is not compatible with later versions of the software covered by the contract.
9. codafish GmbH is neither responsible nor obliged in any other way to remedy malfunctions under warranty if these malfunctions have been caused by modifications or add-ons to the software covered by the contract. codafish GmbH is also not obliged to undertake contractual maintenance and repair services, if and insofar as the provision of these services is made more difficult by modifications or add-ons to the software covered by the contract.
V. Acquisition, measurement
1. Every use of the software covered by the contract, which exceeds the contractual agreements, must be notified to codafish GmbH in writing. Use, which exceeds that agreed in the contract, requires a separate contract with codafish GmbH, in which the additional scope of use (acquisition) is provided for with the stipulation that the provisions of the underlying contract apply to the acquisition. The foregoing provisions apply accordingly also to software loaned or provided on a temporary basis (software hire, etc.)
2. codafish GmbH is entitled to check the use of the software covered by the contract by measurement (as a matter of principle once per calendar year). Use is routinely measured in the form of self-declarations using measurement tools provided by codafish GmbH or third-party providers. codafish GmbH may also conduct remote measurements, if there is refusal to disclose the use or insofar as the declaration provides no meaningful information and there is objective evidence that the Principal has infringed the law. The Principal shall cooperate in a reasonable manner with codafish GmbH in the conduct of such measurements, in particular by allowing codafish GmbH the required insight into and access to its systems both in the case of remote measurement and in the case of measurement on site. codafish GmbH shall give reasonable notice of measurement on site. The confidentiality interests of the Principal and the protection of its business operations shall be taken into account and protected in a reasonable manner. The reasonable costs of measurement by codafish GmbH shall be borne by the Principal if the results of measurement show that the software has not been used as stipulated in the contract.
3. If during measurement or otherwise it is detected that the use by the Principal of the software covered by the contract exceeds that which is agreed in the contract, it shall be necessary to conclude a contract with codafish GmbH concerning the acquisition. Further rights of codafish GmbH, such as damages and the assertion of interest on arrears by virtue of the period, during which the software has been used contrary to the contract, remain unaffected.
1. The Principal shall pay to codafish GmbH the remuneration agreed in the contract. No discounts shall be granted.
2. codafish GmbH may demand reasonable payments on account for the provision of any kind of IT services. In addition, if in the past there has been no business relationship, codafish GmbH may demand payments on account or advance payments in full.
3. codafish GmbH reserves all rights in the software covered by the contract, in particular as regards the versions of the service and maintenance contract provided, until all its claims arising from the IT contract have been settled in full. The Principal must notify codafish GmbH immediately in writing if any third-party gains access to the products underlying the reservation of rights and must apprise the third party of the rights of codafish GmbH and the third-party provider.
4. The invoiced amounts must be paid by the Principal 14 calendar days from date of invoice. On entry into force of the due date codafish GmbH is entitled to require interest on arrears in the amount of statutory rate of interest on arrears unless the underlying contract states a different payment date.
5. At its discretion codafish GmbH is entitled to adjust the remuneration provided for in the contract, in each case giving two months' notice to the Principal with effect from 01.01 of any calendar year by declaration of adjustment in textual form as a minimum, subject to the following principles:
- The remuneration may be adjusted to an extent not exceeding the extent, to which the index referred to in the next paragraph has been adjusted (adjustment framework). In the case of the initial adjustment of the remuneration the development in the index between the published index status on the date of conclusion of the contract and the most recently published index status on the date of the declaration of adjustment is definitive. If there has been an earlier adjustment of remuneration, the adjustment framework is defined by the index development between the most recently published index status on the date of the declaration of adjustment and the most recently published index status on the date of the new declaration of adjustment.
- The calculation of the adjustment framework is based on the index of the average gross annual earnings of an employee in full-time employment in Germany for the "Provision of Services in Information Technology" sector (Basis 2021 = 100; gross annual earnings in 2021: 72,672.00 Euro). Should this index cease to be published, the index published by the Federal Statistical Office shall be definitive for calculating the adjustment framework, which best shows the average gross monthly earnings in the said sector.
6. Unless the Principal terminates the underlying contract within two weeks of receipt of the declaration of adjustment (special right of notice), the new remuneration shall be deemed to have been agreed. codafish GmbH shall advert thereto in the declaration of adjustment.
7. All remuneration is understood to be exclusive of the statutory value added tax in force.
VII. Termination of right of use
On the ending of the right of use (e.g., by withdrawal, expiry of the agreed contract term, notice of termination) the Principal shall be obliged to cease the use of the software covered by the contract and the confidential information without delay. Within one month of the expiry of the right of use the Principal shall irretrievably destroy all copies in any form of the software covered by the contract or, at the request of codafish GmbH, shall surrender all copies of the software covered by the contract, unless its retention in the relatively long term is provided for by statute; in this case the software shall be returned or destroyed at the end of this period.
The Principal must provide codafish GmbH with written confirmation that it has complied with the foregoing obligations.
VIII. Cooperation, duty of inspection and notification
1. The Principal must make every endeavor to facilitate smooth operation for codafish GmbH and must refrain from everything, which could make those operations difficult or impossible. The Principal shall make available to codafish GmbH all the necessary documents and data, which are required and necessary for the successful provision of services by codafish GmbH. If the Principal discovers that its own information, and requirements are incorrect, incomplete, ambiguous, or not feasible, it must without delay notify codafish GmbH thereof and of the consequences, of which it is aware.
2. The Principal shall appoint in writing a contact person for codafish GmbH with an address, an e-mail address, and a telephone number; the availability of the contact at these contact details must be assured at all times. The Principal's contact person must have the capacity to make the required decisions for the Principal or to bring about such decisions without delay.
3. The Principal shall test the products covered by the contract thoroughly for freedom from defects, before it starts to use them for operational purposes.
4. If data is not protected pursuant to express agreement in the codafish GmbH IT contract, the following shall apply: The Principal shall ensure its own storage systems for its data, materials, and software. If works pending for the Principal (including remedying of malfunctions and defects) or other services by codafish GmbH are announced, it shall in each case check whether data protection is currently in place; otherwise, it shall implement such protection, prior to the start of activities by codafish GmbH. It is the responsibility of the Principal to test data protection, in particular to test whether it has been successfully and fully implemented. The Principal shall also take reasonable precautions for the event that the products covered by the contract fail to work correctly in full or in part (e.g., by protecting data, diagnosing malfunctions, regular checking of the results). The Principal shall expressly advert to the fact that it bears the risk of data loss, if the data are not protected according to the currently recognized state of the art, e.g., by way of backups on another, separate server. In the absence of an express written notice in the individual case, all the persons employed by codafish GmbH to provide the service shall be entitled to assume that all data, with which they come into contact, have been protected by the Principal. In the event of loss of data or software during the warranty period codafish GmbH shall assist the Principal to re-enter the secured data. The costs incurred hereby by codafish GmbH shall be invoiced separately to the Principal.
5. The Principal is subject to a duty of inspection and notification with respect to all deliveries and services by codafish GmbH pursuant to § 377 German Commercial Code. The Principal shall state its complaints in writing with a description of the problem. If the Principal fails to comply with its aforesaid duty, the products shall be deemed free of defects as at delivery, insofar as the defect asserted subsequently was or may have been identifiable, had the required inspection been conducted.
6. The Principal shall notify codafish GmbH without delay of any apparent malfunction and defect and shall support codafish GmbH in the inspection of the malfunction or defect and in the remedying of the malfunction or defect within the scope of what is reasonable. For this purpose, at the request of codafish GmbH this includes, in particular, submitting defect reports, as minimum in textual form and preparing other data, information and reports, which are appropriate for analyzing the malfunction and/or the defect. Delays, which occur through omissions and inaccuracies in the malfunction or defect description do not result in default in the confidential services by codafish GmbH (in particular, in the case of servicing, maintenance and remedying of malfunctions and/or defects).
IX. Defects, disruptions in supply
1. In accordance with the provisions of the law which governs the respective contract, codafish GmbH provides a warranty for the products and/or services covered by the contract and, insofar as software covered by the contract is concerned, a guarantee that there are no third-party rights preventing the transfer of the agreed rights of beneficial use to the Principal.
2. codafish GmbH provides its warranty by way of supplementary performance such that at its option codafish GmbH shall deliver a new, defect-free product, for example software status, to the Principal or shall remedy the defect. codafish GmbH may also remedy defects by demonstrating to the Principal possible reasonable ways to prevent the defect. codafish GmbH is also entitled to remedy the defect by creating a work-around, a technical or organizational interim solution; in this case it is usual for the defect to be ultimately removed with the next software update.
3. Where defects of title have been proven, codafish GmbH provides a warranty by way of supplementary performance, by providing the Principal with a range of applications of the products covered by the contract without legal defects or at its option shall provide comparable products, in exchange or in modified form. The Principal must accept a new software status, if the range of functions covered by the contract remain reserved and acceptance of the new product is not unreasonable.
4. If the supplementary performance has not been successful at the end of a period of grace set by the Principal, it may withdraw from the contract or reduce the remuneration. codafish GmbH shall pay damages or replace wasted expenses caused by a defect within the scope of the limits specified below under "Liability".
5. The statute of limitations for the warranty claims is one year and begins on delivery or acceptance of the products covered by the contract. This shall apply also for claims arising from withdrawal and reduction in price. The statute of limitations shall not be reduced in the case of culpable intent or gross negligence on the part of codafish GmbH, fraudulent concealment of a defect or personal injury. The statute of limitations for defects in the provision of supplementary performance, circumventions, or new deliveries by way of supplementary performance shall similarly be one year. However, if codafish GmbH, with the consent of the Principal, discloses the presence of a defect or provides supplementary performance, the statute of limitations is delayed for the period until codafish GmbH has notified the Principal of the result of its test or declares the supplementary performance completed or refuses to provide supplementary performance.
6. If codafish GmbH provides fault-finding or fault-remedying services without being obliged so to do, codafish GmbH is entitled to require reasonable remuneration. The time required and the remuneration provisions in the respective contract are definitive for calculating the amount of remuneration. This shall apply in particular, if a reported defect as to quality is not proven or cannot be attributed to codafish GmbH or if the products covered by the contract have not been used in accordance with the documentation. The additional costs of remedying defects incurred by codafish GmbH due to the fact that the Principal fails to fulfil its duties of cooperation in proper form, uses the products covered by the contract inappropriately or has not utilized the services recommended by codafish GmbH must be remunerated.
7. If a third party asserts claims, which conflict with the rights of beneficial use granted under the contract, the Principal must without delay notify codafish GmbH in writing, giving full details. If the client ceases to use the work results or for the purposes of mitigation or for other good cause, it is obliged to notify the third party that the acknowledgement of the alleged breach of intellectual property rights is not related to ceasing to use the said rights. It shall conduct the legal dispute with the third party solely with the agreement of codafish GmbH or shall authorize codafish GmbH or, where applicable, the affected third-party, in agreement with codafish GmbH, to conduct the dispute.
1. codafish GmbH accepts unlimited liability for culpable intent and for claims arising from mandatory product liability legislation and for injury to life, limb, or health. Otherwise, liability for compensation in damages or refund of wasted expenses is restricted.
2. Liability regardless of negligence or fault in accordance with § 536a (1) German Civil Code is excluded.
3. codafish GmbH accepts liability for slight negligence only if this signifies a more than merely insignificant breach of a duty essential to the contract. A duty essential to the contract is an obligation, the fulfilment of which is paramount in the first instance for the proper performance of the contract, on the performance of which the Principal routinely relies and may rely. In all cases codafish GmbH accepts liability solely for foreseeable damage typical of the contract.
4. The liability of codafish GmbH for slight negligence, irrespective of the legal ground, is limited to the amount of a maximum of 50% of the order value/ annual remuneration in the contract in question, in which the loss event occurs. In the case of gross negligence this upper limit on liability is doubled to a maximum of the total order value / annual remuneration of the contract in question in the year, in which the loss event occurred.
5.Damages from loss of profits shall not be made good. In the case of data losses only the costs of reinstatement shall be made good taking into account the Principal's duty of continuous data protection pursuant to VIII.
6. The Principal shall indemnify and hold codafish GmbH harmless for all claims asserted by third parties against codafish GmbH in connection with the performance of the contract, insofar as these claims and/or the liability amount exceed the limits on liability.
7. Insofar as liability is excluded or restricted, this exclusion or restriction applies also to the personal liability of the employees, vicarious agents, and executive bodies of codafish GmbH and the subcontractors of codafish GmbH.
8. The legal statute of limitations shall apply in the case of liability by virtue of culpable intent or gross negligence, in the case of personal injury or in accordance with the German Product Liability Act. Otherwise, a statute of limitations of one year shall apply to all claims for damages or replacement of the Principal's wasted expenses in the case of contractual and non-contractual liability. The statute of limitations commences pursuant to the statutory provisions.
1. Irrespective of its form, confidential information which is therefore to be treated in confidence is all the information exchanged between codafish GmbH and the Principal in the context of or in relation to this contract, which is either expressly identified in writing as "confidential" or is similarly identified.
2. codafish GmbH and the Principal shall treat in confidence the provisions of the contract and other confidential information and shall not disclose it to third parties unless such disclosure of information is required by virtue of statutory or contractual provisions.
3. codafish GmbH and the Principal shall treat all confidential information in strict confidence, in particular they shall:
- protect it with care and take appropriate measures to prevent access by unauthorized persons,
- make all confidential information available solely to those employees, advisors or third parties, who need to access and analyze the confidential information within the scope of the performance of the contract, and shall instruct these persons in the confidential treatment of confidential information,
- shall make no confidential information in any form accessible to third parties without the written agreement of the other contractual partner (third parties within the meaning of this Non-disclosure Agreement are lawyers or auditors,
- who are not authorized by the parties, or other professionals, who are placed under a legal duty of non-disclosure),
- use all confidential information solely for the agreed purpose of performing the contract.
4. codafish GmbH and the Principal are not under a duty of non-disclosure of confidential information, which
- at the time of disclosure was in the public domain or provided for publication,
- prior to disclosure by a party to the contract was already in the possession of the other contractual partner and it is possible to prove this circumstance,
- has been developed or independently purchased by one of the contractual partners, without infringing this agreement,
- has been approved by the disclosing party to the contract in the form of written consent,
- has been lawfully disclosed to codafish GmbH or to the Principal by a third party with no duty of non-disclosure,
- must be disclosed by virtue of a law or a governmental or judicial ordinance or a comparable ordinance. codafish GmbH land the Principal shall notify the respective other contractual partner of the requirement or the request for disclosure, as soon as this is known to the respective contractual partner and insofar as such notification is not prohibited by any statutory, governmental, judicial, or comparable requirement.
5. This duty of non-disclosure shall end at the earliest on the expiry of five years from the termination of the contractual relationship.
6. codafish GmbH and the Principal undertake to draw the attention of staff members employed by them in connection with the contract and to place them under a corresponding duty of non-disclosure.
XII. Money Laundering
1. In order to comply with their statutory duties of care and information (e.g. duty to identify customers under the German Money Laundering Act) the Principal is obliged to make available to codafish GmbH the necessary data and documents and to communicate without delay in writing changes arising during the term of the contract (e.g. modification of the legal form, change in a representative body, change of shareholders).
2. If the Principal infringes the foregoing duty, codafish GmbH is entitled to withdraw from the contract or to exercise the right to extraordinary termination by terminating the contract without notice.
XIII. Final clauses
1. Assignment of claims is admissible solely with the prior consent in writing of codafish GmbH. codafish GmbH may not unreasonably refuse consent. The provisions in § 354a German Commercial Code remain unaffected.
2. The Principal is entitled to offset the claims for remuneration by codafish GmbH only with claims established by law and recognized claims.
3. Amendments and additions to the contract and all letters of intent relevant to the contract and declarations of the exercise of rights to alter legal relationships, in particular termination, demands for payment and the setting of deadlines, require the written form. This shall also apply to the waiver of the requirement for the written form. The requirement for the written form may also be complied with by exchange of letters or (apart from notices of termination) by electronically transmitted signature (fax, transfer of scanned d documents via e-mail). However, in other respects § 127 (2) and (3) do not apply.
4. Should provisions of these General Terms and Conditions of Business be invalid or contain omissions, this shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by valid provisions, which largely achieve the intended commercial and legal purpose.
5. Place of performance for all services by codafish GmbH is its registered office unless performance must take place in another place by virtue of the agreed content of the services. The registered office of codafish GmbH is agreed as the Court of jurisdiction.
6. The law of the Federal Republic of Germany is applicable to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. In the case of a multilingual version of the underlying contract the German text alone is definitive for legal effect.