1. Scope/Contract Formation
1.1. The following Standard Terms and Conditions (“Standard Terms”) in the version applicable on the date on which a contract is formed govern the business relationship between the company H. Schomäcker GmbH, represented by General Manager Ralf Schomäcker, (hereinafter referred to as “Schomäcker”) and the Customer to the exclusion of all other terms and conditions. Unless otherwise provided, the version of these Standard Terms as provided to the Customer also govern similar, future contracts, functioning as a master agreement such that Schomäcker is not required to refer to them separately.
1.2. Schomäcker does not acknowledge or accept any of the Customer’s or a third party’s terms and conditions that differ from these except where Schomäcker has expressly consented to the validity of such terms in writing.
1.3. In these Standard Terms, the word “Customer” refers exclusively to businesses/business operators. Within the meaning of these Standard Terms, such businesses/business operators may be natural persons, legal entities, or unincorporated business associations (Personengesellschaft) acting in a commercial capacity or in their capacity as an independent contractor.
2. Special Terms Applicable to Schomäcker’s Products and Services
2.1. Purchase of hardware and software
This contract governs the provision of hardware or software by Schomäcker over extended periods of time for a fee.
2.1.1. Contract formation
A written order from the Customer is an offer to enter into a contract. The contract is formed when the order is confirmed by Schomäcker. Where an order is not confirmed by Schomäcker within eight business days for reasons within Schomäcker’s control, the Customer is no longer under any obligation arising from the order.
2.1.2. Obligation to report problems
The Customer’s warranty rights pursuant to the provisions of German law governing the sale of goods and services require that the Customer duly satisfy its obligations as set out in Secs. 377 and 381 of the German Commercial Code (HGB) to examine goods and services and report any problems.
2.2. Contract for work and services (hardware and software production)
2.2.1. Scope of work
The contract governs the production or modification of hardware or software at the request of the Customer. The scope of work owed and further details are to be described in detail by the Customer in a functional specification to be drawn up by the Customer. Schomäcker will produce the hardware and/or software pursuant to the requirements and services described in the functional specification in accordance with the state of the art in science and technology.
2.2.2. The Customer’s duties
188.8.131.52. The Customer is to provide to Schomäcker, without request, free of charge, and in a timely manner, the information, documents, and other work materials (pre-installed data processing components, any software specifically tailored for the Customer) as may be required to proceed with the services to be provided. The Customer is responsible for ensuring that Schomäcker has access, as applicable, to professionally qualified staff members who are able to provide authoritative information.
184.108.40.206. Where Schomäcker produces software according to the Customer’s drafts and instructions, the Customer must release and hold harmless Schomäcker from and against any and all demands and costs that arise due to infringements of third-party intellectual property rights attributable to the Customer’s drafts and instructions. At Schomäcker’s request, the Customer must provide a reasonable advance payment for legal costs.
In the case of the production of software, Schomäcker is to provide to the Customer a copy of the program, coded and ready to install, for the performance of the functionality testing of the produced software of the type, scope, and duration set out in the functional specification. Where the functionality testing of deliverables establishes that Schomäcker’s work is in conformity with the statement of work in the functional specification, the Customer is to promptly provide a written statement of acceptance of the deliverable. Where the Customer fails to provide a statement of acceptance within a reasonable period, Schomäcker can set a deadline of two weeks for the Customer to provide such statement. If the Customer then fails to either provide a statement of acceptance or specify reasons for extending the functionality testing and does not set another grace period itself, the deliverable will be deemed accepted when the deadline passes. Schomäcker is to specifically advise the Customer of the special significance of the Customer’s conduct at the start of the two-week period.
3. Standard Terms and Conditions
3.1. Software licensing terms and conditions
3.1.1. Where software is provided to the Customer for its own use for an extended period, Schomäcker grants to the Customer, subject to remuneration in full, a non-exclusive right, without limitation as to time and place, to use the software. The Customer may use the software acquired in conformity with the contract on any hardware available to the Customer. In the event the Customer changes its hardware, the Customer must delete the software from the mass storage device of the hardware used up to that point. The simultaneous storage, keeping on hand, or use on more than one hardware device is not permitted except where there has been an agreement stipulating otherwise.
3.1.2. Use of the provided software within a network or other multi-station computer system is not permitted insofar as doing so would potentially allow for the simultaneous use of the program on multiple devices. In the event the Customer wants to use the software within a network or other multi-station computer system, the Customer must prevent simultaneous use on multiple workstations via mechanisms that safeguard against access, or pay to Schomäcker a separate network fee, the amount of which is to be determined according to the number of users in the computer system. Schomäcker will promptly let the Customer know the network fee to be paid in the given situation as soon as the Customer has notified Schomäcker in writing of the planned network use including the number of users. Use in such a network or multi-station computer system is permitted only after payment in full of the network fee.
3.1.3. As a rule, unless otherwise provided, sublicensing, renting out, or passing on the software in the context of a lease agreement for business purposes (e.g., acting as an application service provider, providing software as a service, etc.) is prohibited.
3.1.4. Where the Customer uses the software in such a way that this extends above and beyond the acquired use rights either qualitatively (with regard to the type of use permitted) or quantitatively (with regard to the number of licenses acquired), the Customer must immediately acquire the use rights required for authorized use. This shall not affect Schomäcker’s right to assert more extensive claims.
3.1.5. Except as provided in Secs. 69d and 69e of the German Copyright Act (UrhG), the software supplied by Schomäcker may not be replicated, processed, reverse engineered, decompiled, or dissembled.
3.1.6. The removal of copy protection or similar protective mechanisms is permitted only where such mechanisms impede use of the program or prevent it from being used without errors. The Customer bears the burden of proving that the protective mechanism impedes use or prevents use without errors.
3.1.7. Arrangements may then be made for third parties operating as commercial enterprises and potential competitors of Schomäcker to undertake the corresponding actions referred to in 3.1.5 and 3.1.6 of this subsection only where Schomäcker does not want to make the requested program changes in exchange for reasonable compensation. Schomäcker is to be granted a sufficient period of time to review whether it will accept the work request.
3.1.8. Where the Customer has a right, 3.1.3 notwithstanding, to sell the software to third parties, the Customer is to ensure that the third party is granted the corresponding use rights only within the scope of the license terms and conditions set out in 3.1.
3.2. Labeling/copyright notices
Under no circumstances may the Customer remove from or modify on the hardware or software any copyright notices, serial numbers, or other features serving to provide program or product identification. The same applies with respect to any suppression of the on-screen display of corresponding features.
3.3. Retention of title
3.3.1. Schomäcker retains the title to the products and services supplied to the Customer until all accounts receivable in the business relationship with the Customer outstanding at the time of supply or as may arise at a later date have been paid in full or, where payment is made by check or bill of exchange, until such has been honored.
3.3.2. The goods subject to this retention of title may be neither pledged to third parties nor furnished as collateral prior to payment in full of the secured accounts receivable. The Customer is to immediately notify Schomäcker in writing if a petition to commence bankruptcy proceedings has been filed or where third parties have taken measures to access goods (e.g., by way of seizure) belonging to Schomäcker.
3.3.3. In the event of conduct by the Customer in breach of the contract, in particular nonpayment of the purchase price due, Schomäcker has the right, pursuant to the statutory provisions, to rescind the contract and/or reclaim the goods on the basis of the retention of title. The act of reclaiming goods does not necessarily comprise a statement of rescission; rather, Schomäcker has the right to merely reclaim the goods and reserve the right to rescind. Where the Customer fails to pay the purchase price due, Schomäcker may assert these rights only where Schomäcker had first set a reasonable deadline for the Customer to make payment and this deadline passed without result, or setting such a deadline is not required under the applicable statutory provisions.
3.3.4. As a general rule, the Customer is not authorized to sell or process the goods subject to retention of tile during the course of its normal business activities. Where the parties agree to other terms, Schomäcker will grant the right subject to revocation as set out in 220.127.116.11. In such case, the following terms apply supplemental to such:
18.104.22.168. The retention of title extends to products created through the processing, integration, or combination of goods at the full value of such products, whereby Schomäcker is deemed the manufacturer. Where third parties retain their title to goods that are processed, integrated, or combined with goods subject to Schomäcker’s retention of title, Schomäcker acquires co- ownership in the same proportion the invoice value bears to the processed, integrated, or combined goods. In all other respects, what applies with respect to the goods supplied subject to retention of title applies equally to the newly created product.
22.214.171.124. As a security interest, the Customer hereby assigns to Schomäcker in total or, respectively, in the amount of any co-ownership percentage held by Schomäcker pursuant to the foregoing paragraph, any accounts receivable from third parties arising from the resale of the goods or the product. Schomäcker hereby accepts this assignment. The Customer’s duties specified in 3.3.2 also apply with respect to the accounts receivable assigned.
126.96.36.199. In addition to Schomäcker, the Customer retains the authority to collect the accounts receivable. Schomäcker shall refrain from collecting receivables as long as the Customer satisfies its payment obligations to Schomäcker, there are no problems with the Customer’s solvency, and Schomäcker does not assert the retention of title by exercising a right set out in 3.3.3. However, where this is the case, Schomäcker may demand that the Customer inform Schomäcker of the assigned receivables and the debtors that owe them, provide all particulars required for collection, hand over the relevant records, and notify the debtors (third parties) of the assignment. Additionally in such case, Schomäcker also has the right to revoke the Customer’s authority to resell and process the goods subject to retention of title.
188.8.131.52. Where the realizable value of Schomäcker’s security interests exceeds the accounts receivable by more than 10%, at the Customer’s request, Schomäcker will release security interests at its choosing.
184.108.40.206. The Customer has rights of recovery against Schomäcker only insofar as the Customer has not made any arrangements with its purchaser extending beyond statutory defect claims that cannot be waived. Furthermore, the foregoing paragraph applies analogously to the scope of the Customer’s right of recovery against Schomäcker.
3.4. Supply of source code/installation work Unless otherwise provided, the Customer has no right either to be supplied with the source code or to installation of the software.
3.5. Terms of delivery
3.5.1. Delivery periods will be arranged individually or, respectively, will be stated upon acceptance of the order by Schomäcker.
3.5.2. Insofar as Schomäcker is unable to comply with binding delivery deadlines through no fault of its own (impossibility of performance), Schomäcker will inform the Customer at once and convey the new, anticipated delivery date. Should performance remain impossible even by the new delivery deadline, Schomäcker has the right to rescind the contract, in whole or in part; any payment already made by the Customer will be refunded. In particular, performance is deemed impossible in this sense in the event of late delivery from Schomäcker’s upstream suppliers where a transaction covering the same contractual elements had been arranged, where neither Schomäcker nor its suppliers are at fault, or where Schomäcker has no obligation to procure supplies in the particular situation.
3.5.3. Whether delivery is delinquent is to be determined according to the statutory provisions. In every instance, the Customer must issue a warning.
3.5.4. Delivery will be ex warehouse, which is also the place of performance for delivery and any cure as may be required. Upon request by the Customer and at its expense, the goods will be sent to another destination (shipping included with purchase). Unless otherwise agreed, Schomäcker has the right to determine the type of shipment (in particular the shipping company, shipping method, and packaging).
3.5.5. The risk of accidental destruction and accidental deterioration of the goods is transferred to the Customer no later than when the goods are turned over. Where shipping is included with purchase, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay transfer at the point in time at which the goods are handed over to the shipper, the carrier, or other individual or establishment chosen to undertake the shipment. Where acceptance has been stipulated, this shall be the definitive point for transfer of risk. In all other respects, the statutory provisions of German law governing contracts for work and services apply accordingly to any acceptance stipulated. Where the Customer is delinquent in receiving the goods, the handover or acceptance shall be the equivalent point in time.
3.5.6. Where the Customer is delinquent in receiving the goods, fails to cooperate, or where delivery is delayed for other reasons within the Customer’s control, Schomäcker has the right to demand compensation for the resulting loss, including for additional expenses (e.g., storage costs).
3.6.1. Unless otherwise provided, the current prices applicable on the date the contract is formed apply ex warehouse; prices stated to not include the sales tax (VAT) applicable by law.
3.6.2. Where shipping is included with purchase, the Customer is responsible for shipping costs ex warehouse as well as the costs of any shipping insurance desired. The Customer is responsible for any customs duties, fees, taxes, or other government charges.
3.6.3. Unless otherwise provided, prices are due and payable within 14 days of invoice and delivery or, respectively, acceptance of the goods. Schomäcker has the right at any time to perform a service in whole or in part only in exchange for payment in advance. Where Schomäcker reserves such a right, it will notify the Customer no later than at the time of order confirmation/order.
3.7.1. The hardware and software provided by Schomäcker shall essentially conform to the product description. The Customer is not entitled to claims for defects in the event of inconsequential deviations in stipulated or required features/fitness for purpose. Unless specifically stipulated in writing, product descriptions are not deemed a guarantee. Where updates, upgrades, or new versions are supplied, defect claims are limited to improvements to the update, upgrade or new version as compared to the previous version.
3.7.2. Where there are defects in goods, Schomäcker will first honor the warranty by means of correction or replacement. Should such cure fail or be impossible due to the unique properties of the goods ordered, as a rule the Customer may demand, at its discretion, a decrease in the remuneration (reduction), that the contract be rescinded (rescission), or damages in lieu of performance. Where the Customer chooses damages in lieu of performance, the liability limitations set out in 3.9 of these terms apply. In the event of minor defects, the Customer does not have a right to rescind.
3.7.3. Obvious defects must be reported to Schomäcker in writing within a period of two weeks from receipt of the goods/service; failing this, the assertion of a warranty claim is barred. Timely submission is sufficient for compliance with the deadline. In such case, the Customer bears the full burden of proving that all conditions for a claim have been met, in particular for the defect itself, for the date of discovery of the defect, and for promptness of the defect report. This shall not affect the provisions set out in Sec. 377 of the German Commercial Code.
3.7.4. Defects are to be reported in writing with a comprehensible account of the error indications, substantiated where possible by means of written records, hard copies, or other illustrative documents. The defects report should allow for a reproduction of the error.
3.7.5. The Customer has no right to claims for defects as the result of errors caused by damage, incorrect connection, or incorrect operation by the Customer. The Customer also has no right to claims for damages if the Customer modified the deliverables or services supplied itself or arranged for a third party to do so, except where the Customer shows that the modification will not significantly impede Schomäcker’s efforts at analysis or revision and that the software defect had existed at the time of acceptance.
3.7.6. In the event the Customer rescinds the contract, the Customer is to pay to Schomäcker an appropriate usage fee for the period up to the date of rescission. The usage fee is to be calculated on the basis of a straight-line depreciation period of four years.
3.8. Remote access
Schomäcker also has the right to perform all services via remote administration. In this regard, the Customer must satisfy the technical requirements for remote access at its own expense and, after appropriate notification, grant Schomäcker access to its data processing equipment.
Claims by the Customer for damages or compensation for futile expenditures must be made in accordance with this clause without regard to the legal nature of the claim:
3.9.1. Schomäcker is liable for damages or compensation for futile expenditure without limitation
3.9.2. In the event of a breach of a duty under the contract arising out of slight negligence, where such duty is central to the achievement of the purpose of the contract (material duty), Schomäcker’s liability is limited to such loss as is foreseeable and typical given the nature of the transaction in question.
3.9.3. Schomäcker is liable for the loss of data only up to the amount that would be incurred for data restoral where proper data backups had been performed regularly.
3.9.4. No further liability on the part of Schomäcker exists. In particular, Schomäcker is not liable for incipient defects insofar as the conditions set out in 3.9.1 or 3.9.2 have not been met.
3.9.5. The foregoing limitation of liability also applies to the personal liability of Schomäcker’s employees, representatives, and its officers and directors.
3.10. Infringement of third-party intellectual property rights
In the event third parties assert claims for intellectual property rights infringements with regard to services provided by Schomäcker, the Customer must notify Schomäcker at once. The Customer is to give Schomäcker the opportunity to join in any legal dispute. Any litigation regarding the issue of whether an intellectual property right has been infringed is to be pursued only in consultation with Schomäcker. Schomäcker will make the decisions – with reasonable consideration given to the Customer’s needs – regarding legal defense measures and settlement negotiations. Where the third party has legitimate claims arising from its industrial property rights due to use in conformity with the contract of the software supplied by the software manufacturer, Schomäcker may choose, at its discretion and giving special consideration to the Customer’s circumstances, either to acquire a corresponding license or to modify the software free of charge.
3.11. Data privacy and protection/data security Schomäcker will collect, process, and use the Customer’s personally identifiable information only for purposes of proper performance of the contract in compliance with applicable data privacy and protection laws. Both parties are to comply with the requirements of applicable data privacy and protection laws and regulations. This applies in particular where the collection, processing, modification, transmission, and deletion of data or datasets are involved. The parties are to require the same compliance from their employees and agents who are granted access to data.
3.12.1. The Customer may use only undisputed claims or those upheld in court for offsetting purposes.
3.12.2. Exercise by the Customer of a payment withholding right not based on a right arising from this contractual relationship is barred.
3.12.3. The Customer is to assign its rights under this contract to third parties only with Schomäcker’s prior consent; this shall not affect Sec. 354a of the German Commercial Code.
3.12.4. The goods may be subject to (re-)export restrictions, e.g., those set by the United States or the EU. In the event of resale or other export, the Customer must comply with such regulations.
3.12.5. Schomäcker may modify these terms and conditions provided the Customer is notified of the modification no later than six weeks prior to the date the change goes into effect. The Customer can object to the change within a cutoff period of four weeks after receiving notification; failing this, the change will be deemed approved. Schomäcker must explicitly indicate this consequence in the notification.
3.12.6. Schomäcker may name the Customer as a reference customer unless the Customer expressly objects to this.
4. Final Provisions
4.1. These Standard Terms are governed exclusively by German Law; application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is expressly excluded.
4.2. The place of performance is Cologne, and the courts of Cologne shall have exclusive jurisdiction and venue provided each of the parties is a business person or legal entity under public law.
4.3. Should individual terms of this contract be or become invalid, as a rule this shall not affect the validity of the remaining terms.
Valid as of January 1, 2018