Terms & Conditions
General Terms and Conditions for Software Transactions and IT Services
1 MAIN TERMS FOR ALL SERVICES
These clauses are binding for all software transactions and IT services provided by
Co-Brain GmbH for customers. The basis for
Co-Brain's services is the present offer, unless
otherwise marked as non-binding by Co-Brain and accepted by the customer through an appropriate order within the validity period.
1.1 Customer Cooperation
1.1.1 Changes to the residential or business address as well as modifications to the legal form
or liability circumstances of the customer's enterprise must be communicated to Co-Brain immediately.
1.1.2 Information and documents required for providing services, especially
regarding devices, data, programs, and program components interacting with Co-
Brain’s software must be supplied by the customer without delay. The customer must
inform Co-Brain about the planned field of application, business policies, and
process-related goals and priorities, as well as all other relevant specifications.
Approvals from third parties must be obtained if necessary.
Co-Brain may require the necessary staff for accident protection on the customer’s premises at no cost.
1.1.3 For services involving the delivery and/or installation of software, the
customer is obligated to a) grant Co-Brain immediate and unobstructed access to the
data processing unit where the software will be used. The customer
provides the required technical facilities, such as power supply,
telecommunication connections, and data transmission lines, free of charge.
Telecommunication costs shall be borne by the customer.
b) Examine the software for functionality immediately upon receipt and report any defects promptly.
c) Make provisions for the event that the software does not function as agreed, particularly through emergency plans, data backups, continuous
outcome checks, and detailed error descriptions in the event of disruptions. Data
should be reconstructable from machine-readable material. d) Self-sufficiently ensure the data security of the
installed software. e) Keep a record of created software copies and/or
user documentation and provide information to Co-Brain upon request.
1.1.4 The customer assures they are authorized to store and process third-party personal data delivered to Co-Brain or their subcontractors.
1.1.5 The customer bears the costs incurred by work that needs to be repeated or delayed by Co-Brain due to inaccurate, subsequently corrected, or incomplete information from the customer.
1.2 CHANGES AND EXTENSIONS TO SERVICES (CHANGE REQUESTS)
1.2.1 The customer can request changes or extensions to the scope of services in concept and software work until handover in writing (“Change Request”).
Co-Brain checks the feasibility of the change, provided it is reasonable within its operational
capacities. An agreed completion deadline is extended by the examination period. Co-Brain indicates the resultant changes, the impact on deadlines, and the time it needs to submit a detailed offer for the
Change Request.
1.2.2 Should Co-Brain submit an offer, the customer has ten calendar days after receipt to decide in writing whether they accept the offer or not. Without a response within this period, the offer is deemed rejected.
1.2.3 Co-Brain can charge for reviewing the change request and preparing the necessary documents, generally based on the time spent, unless otherwise agreed. The calculation is based on the current Co-Brain price list.
1.3 RIGHTS OF USE TO SOFTWARE
1.3.1 Upon full payment, Co-Brain grants the customer the non-exclusive
and time-limited right to use the software within Germany. This
includes loading, displaying, running, transferring, or storing for the company’s own purposes.
The usage right is limited to the data processing units, users, and their number specified in the offer as well as the intended extent of reproduction. The customer may create and keep a backup or archival copy of the
software. If the customer commissions Co-Brain for further individual
software development projects, separate conditions can be agreed upon project-based, always individually limited to the project to be developed.
1.3.2 The rights defined in 1.2.1 also apply to user documentation provided in machine-readable form. Printed versions may only be reproduced for software usage purposes.
1.3.3 The customer may combine the software with other programs. Reverse engineering into other code forms is only permissible by law. Transferring these actions to third parties is only allowed if Co-Brain is unwilling to establish interoperability for a fee.
1.3.4 The customer is allowed to modify the software for error correction if this is necessary for intended use and Co-Brain does not undertake these actions itself. Private use excludes the distribution of the software. The customer must
prove the necessity of the error correction.
1.3.5 Labels, trademarks, and copyright notices must not be removed and must be transferred unchanged onto copies.
1.3.6 The customer may permanently transfer the usage right, including the user documentation, to a third party if the third party agrees in writing to the obligations of this contract. Co-Brain must be informed of the transfer.
Upon transfer, the customer’s usage right lapses.
1.3.7 Rights to reproduction, distribution, provision, sublicensing, modification, and alteration, as well as the use and reproduction of the results and their distribution, are otherwise excluded.
1.3.8 If open-source software is required, the customer must procure it and the necessary licenses themselves and provide them to Co-Brain.
1.3.9 This also applies to all further developments contractually created for the customer by Co-Brain.
1.4 COMPENSATION AND PAYMENT TERMS
1.4.1 The agreed compensation is to be paid by the customer. If no compensation is set,
the prices valid at the time of contract conclusion apply. Compensation is from the
Co-Brain headquarters, unless otherwise agreed.
1.4.2 Compensation occurs without sales tax and country-specific levies for
foreign deliveries. Travel costs are charged additionally. Travel times count as
working time.
1.4.3 For time-based compensation, advance payments must be made at Co-Brain's request. The final compensation accounts for any advance payments
and is due immediately upon invoicing unless otherwise agreed.
1.4.4 For lump-sum compensation: 40% upon contract conclusion; 30% eight weeks after
contract conclusion or at the agreed date, and 30% after acceptance.
1.4.5 For projects lasting longer than 12 months, Co-Brain may increase the compensation with three months' notice, provided no fixed price is agreed upon. The increase
must not exceed 5% per year.
1.4.6 All claims become due immediately if payment deadlines are not met without
cause or if the customer’s financial situation significantly deteriorates.
1.4.7 Payments are first credited to unbilled and uncontested liabilities and finally to billed ones, always first to older, then to more recent claims.
1.4.8 The customer may only offset undisputed or legally established claims.
A right of retention exists only for undisputed or legally established claims.
1.5 WARRANTY
1.5.1 The limitation period for defect claims is one year after delivery
(standard software) or acceptance (concepts or customized, created, and installed
software).
1.5.2 A defect exists if the contractual software does not have the agreed quality
or is not suitable for the agreed use. Defects must be reported immediately upon
discovery with a description.
1.5.3 Co-Brain has an adequate period for supplementary performance. Co-Brain chooses between
defect elimination or new delivery. A reasonable workaround of the software defect
is considered sufficient defect elimination. More than two attempts at rectification are
generally required. Withdrawal is excluded in the case of insignificant reduction in value or suitability, as well as in the event of acceptance delay by the customer or predominant
customer responsibility for the defect. In the event the software is used without adherence
to the environmental conditions, the obligation for supplementary performance lapses, unless the customer
proves that the defect is not due to it.
1.5.4 In the case of unjustified defect complaints, the customer bears the costs if they have
culpably misjudged the absence of defects.
1.6 CONTRACT DURATION AND TERMINATION
1.6.1 Termination of agreements regarding adjustment, creation, installation, and
provision of software and concepts as well as consulting and training services is only
allowed according to statutory provisions.
1.6.2 A software maintenance contract starts on the agreed date and has a
minimum term of 12 months. It is extended by one year if not terminated with
three months’ notice. Termination of individual contract parts is possible if it
is reasonable for the other contractual partner and the parts are functionally separable.
The right to terminate for good cause without notice remains unaffected. Important
reasons for termination include, a) the impossibility of service provision by Co-
Brain due to a delivery failure; b) interference by the customer with the software to be maintained; c)
customer-induced changes and extensions leading to additional workload;
d) the customer's rejection of a new release; or e) the customer's payment default
of more than two months or non-payment of two invoices within the deadline. The
termination requires written form.
1.7 LIABILITY
1.7.1 A contractual partner is only liable in the case of culpable breach of an essential
contractual obligation or intentional misconduct or gross negligence. In the case of non-intentional or grossly negligent
breach of an important contractual obligation, liability is limited to foreseeable,
contract-typical damages.
1.7.2 Co-Brain is only liable for the restoration of data if the customer through
appropriate measures, especially daily backups, ensures the reconstruction with
reasonable effort.
1.7.3 The exclusion or limitation of liability also applies to the personal liability of organs,
employees, workers, agents, and subcontractors.
1.7.4 The limitation of liability does not apply to claims under the Product Liability Act.
1.7.5 There is no liability for breaches due to force majeure, e.g., war,
natural disasters, terrorist acts, strikes (not lockouts), embargoes. Strikes are not considered force majeure if caused by illegal actions of the contracting party.
In case of force majeure, the deadlines are extended corresponding to the duration of
the hindrance. The affected party informs the other party immediately about the
event.
1.8 CONFIDENTIALITY
1.8.1 Each contractual partner treats the information provided by the other as confidential
and uses them only for contractual purposes. Exceptions apply if the
information a) was already public, b) became public without the recipient's fault,
c) was made available by an authorized third party, d) was already known to the<
recipient or was developed independently, e)
is provided to a third party by Co-Brain under a confidentiality obligation,
f) is handed over to a sworn professional advisor,
g) has to be disclosed due to a government or court order or a law.
Upon knowledge of such a reason, the informing party must be informed immediately.
1.8.2 The contractual partners use the same care in maintaining confidentiality as they do with their own trade secrets
and ensure their employees are similarly obliged.
1.8.3 All rights to the information remain with the informing contractual partner.
Regardless of the contract’s term, each partner will use the information provided for another three years after receipt only according to this agreement.
2. SPECIAL PROVISIONS FOR SPECIFIC SERVICES
These provisions apply to the respective services Co-Brain provides in the agreed scope:
2.1 Concept Creation
2.1.1 Co-Brain creates a concept in written form based on the offer. The aim is
to establish a data processing foundation for individual software or
adaptable software.
2.1.2 Co-Brain analyzes, evaluates, and documents the customer’s requirements. Functions, tasks, workflows, interfaces, and the interaction of functions are described,
as well as the necessary and generated information. The
concept is created in close collaboration with the customer.
2.1.3 The content of the concept only serves as a guarantee of condition if explicitly stated. Performance deadlines or dates are non-binding unless
expressly confirmed as binding.
2.1.4 If the work result meets the agreements, the customer must declare acceptance
immediately, at the latest within four weeks of receipt, in writing. In the case
of significant deviations, Co-Brain must rectify them within a reasonable period. After that,
the work result will be made available for renewed acceptance. Acceptance can take place with reservation of defect rights.
2.1.5 If the customer declares non-acceptance without reason, Co-Brain may set a deadline for declaration. The work result is considered accepted upon deadline expiry if the customer does not specify their reasons
for refusal in writing.
2.1.6 Co-Brain grants the customer the non-exclusive and non-transferable right
to use the concept as a basis for creating or adapting their software. Co-Brain’s
right to create concepts for third parties remains unaffected.
2.2 Consulting and Training Services
2.2.1 Co-Brain offers consulting and/or training services as per the offer.
2.2.2 Should the services not be rendered in accordance with the contract, Co-
Brain must render them according to the contract within a reasonable period, provided the customer
has complained in writing.
2.3 Provision of Standard Software
2.3.1 Co-Brain provides the customer with standard software in object program form with
user documentation. The scope and functionality are determined by the product description valid at the time of contract conclusion.
2.3.2 The software is executable on the hardware and software environment specified in the product description or contract.
Usage environment conditions are specified in the product description or offer. Further agreements depend on the customer’s specific situation and require separate agreement.
2.3.3 Technical data and descriptions in the product description do not guarantee condition unless explicitly stated as such.
2.3.4 The customer receives a copy of the software on the agreed machine-readable
data carrier and a copy of the user documentation. The user documentation
is provided in print or machine-readable form, possibly on the same
carrier as the software copy. At the customer's request, delivery is made on a customer-supplied machine-readable data carrier.
2.3.5 Additional services, such as installation, orientation, and training, must be separately
agreed upon and compensated. Software maintenance and customer-specific adjustments
form part of the services only if agreed upon in writing.
2.4 Maintenance of Standard Software
2.4.1 Co-Brain performs maintenance services on the standard software specified in the offer.
The maintenance services aim at maintaining functionality but do not ensure uninterrupted operation.
Various service levels are offered. The nature, scope, and content of maintenance services
depend on the agreed service level. If no service level is specified,
maintenance takes place according to the “Silver” Service Level Agreement's current version. The valid service level agreement is provided upon request.
2.4.2 The customer can switch to a higher service level by notifying Co-Brain
at least 60 days before the contract ends. The new service level applies from the beginning of
the new contract year. Compensation follows the corresponding price list.
2.4.3 The provision of new program versions with performance and
function enhancements may be subject to a separate software
provision contract against compensation.
2.5 Creation, adaptation, and installation of software
2.5.1 The type and scope of services derive from the offer or concept created
by Co-Brain for the customer.
2.5.2 If the services are functional, Co-Brain provides the work result and
confirms functionality in writing. Acceptance requires a successful functionality test. If the work result substantially complies with the contract, the customer must declare acceptance in writing. If the customer gives no reason,
the work result is considered accepted after a deadline set by Co-Brain if the customer does not specify
their reasons for refusal in writing. In the case of sufficient justified non-acceptance, Co-Brain must make corrections.
2.5.3 The contracting parties can define acceptance criteria in writing to be
complied with during the functionality test.
2.5.4 Co-Brain must rectify significant deviations from contractual requirements
within a reasonable period. Significant deviation occurs if there are disruptions in
parts of the program sequences or significant disruption of software operation
resulting in system non-functionality. The work result is then ready
for renewed acceptance.
2.5.5 Acceptance can also occur with the reservation of defect rights. In this case,
the provision for significant deviations regarding which the customer reserves their
rights applies equally.
2.5.6 For services with different timings, functionality testing is limited to the
respective partial service. Upon acceptance of the last partial service, the contractual operation
of all services is determined.
2.5.7 Each contractual partner appoints a responsible contact for discussions
and information regarding the project. The customer appoints those binding for them promptly
after contract conclusion. Each partner designates a project manager
responsible for all technical questions. When the project manager changes, the other partner
must be informed.
3 Final Provisions
3.1 The underlying offer, including any additions, is an essential
part of the contract.
3.2 The place of performance for Co-Brain's services is Co-Brain's registered office. The court of jurisdiction for
all disputes arising from the contract is the court responsible for Co-Brain's registered office.
3.3 Side agreements, amendments, and additions to the contract must be in writing.
This writing requirement can only be waived in writing.
3.4 The contractual relationships are subject to the law of the Federal Republic of Germany. The
application of the Vienna UNCITRAL Convention on the International
Sales of Goods and German conflict of laws is excluded.
3.5 Should the contract contain a gap or a provision be wholly or partly
invalid, the contract remains otherwise valid. Instead of the missing or
ineffective provision, a rule comes as close to the original economic purpose as possible. However, the contract becomes completely invalid if adhering to it, even considering the intended change, would represent an unreasonable hardship for
one party.
3.6 Co-Brain may transfer or assign its rights and obligations under the contract to its parent company or affiliated group company. The customer may only pass on their rights and obligations with Co-Brain’s written consent.
3.7 The customer is informed that personal data will be stored and processed within the scope of the business relationship as far as necessary for contract fulfillment.
3.8 The customer agrees that Co-Brain may name them as a reference customer for the solution created within this project. This includes the use of the customer’s name and the application created for marketing purposes. Solutions created or supported by Co-Brain contain a notice of the use of Co-Brain products and services.