General Terms and Conditions of Zinit Solutions GmbH
Valid from: 20.05.2018
1.1. The following general terms and conditions (GTC) concern all deliveries and services of Zinit Solutions GmbH.
1.2. The detailed description of the services provided by Zinit Solutions GmbH can be found in the tender documents, project contracts, their enclosures and specifications.
2.1. Zinit Solutions GmbH (hereinafter referred to as ZS) provides its services to ordering party (hereinafter referred to as the Customer) solely on the basis of these General Terms and Conditions, unless otherwise specified in the contract between the parties and if the Customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) or a legal person under public law.
2.2. These General Terms and Conditions also apply to all future business relations between the contract partners, without a separate agreement being required.
2.3. General terms and conditions of the Customer or any third party apply only to the extent that ZS has expressly agreed to them in writing.
2.4. The Customer explicitly acknowledges these terms and conditions with order placement.
3. Conclusion of contract
3.1. The contract is concluded by written or electronic offer confirmation by the Customer, written or electronic order confirmation by ZS or contract conclusion between the parties.
3.2. The offers of ZS lose their validity after 2 weeks.
3.3. The offer, which ZS offers the Customer, may not be made available to third parties neither whole nor in parts without the prior written consent of ZS.
3.4. All works and services which have been handed over to the Customer prior to the contract remain the property of ZS and may not be accessible to third parties without the prior written consent of ZS.
3.5. Any written, oral or concluding instruction on the part of the client or his authorized representative for the service provision by ZS shall be deemed to be an order.
4. Scope of Services
4.1. The scope of the services provided by ZS to the Customer can be found in the service description of the respective offer. This also includes all additional requirements and specifications that supplement or specify the services mentioned in the offer.
4.2. All requirements and service specifications are handed over to ZS in written or electronic form or are gathered, adjusted and enriched in cooperation with the Customer, separated from one another and recorded in the form required by ZS (e.g. as a “user story”). All associated activities of ZS within this process are part of the paid services and are billed at standard hourly rate. This also includes the subsequent substantiations, changes and extensions of the descriptions of the customer requirements recorded up to that point.
4.3. Based on the specifications collected as a result of a requirement analysis process, ZS can prepare a description of the possible solutions for the realization of Customer requirements and agreed them with the Customer. All related activities are also part of the paid services and will be charged at normal hourly rate.
4.4. ZS is authorized to use the assistance of qualified vicarious agents for the execution of the contract and to transfer the associated rights and obligations to them as vicarious agents. If services are not provided by such third parties in a timely or correct manner, ZS can only provide the services with delays or withdraw from the contract. The Customer is to be informed without delay as far as possible or reasonable. The selection and monitoring of these third parties is the responsibility of ZS.
4.5. Services, not explicitly mentioned in the contract, are not a part of the contract content and are not owed by ZS insofar as these have not been agreed in written or electronical form.
4.6. ZS undertakes to supply sufficiently tested software. Insofar as the installation is carried out by the customer himself, he must first carry out a data backup. ZS is not liable for the damages caused by incorrect installation of the lack of data backup.
4.7. ZS is not obligated to provide intermediate results, e.g. drafts, layouts, source files, etc.
4.8. ZS keeps the right to itself to make minor and / or technical deviations from the contents of the contract, provided that the Customer does not incur any economic or technical disadvantages.
4.9. If necessary, ZS is entitled to demand the mutual use of issue tracking and project management software by both contracting parties.
4.10. ZS reserves the right to explicitly request expense approvals.
4.11. The cost estimates of ZS are made in the best possible way and on the basis of the information available at the time of the estimation, which are often incomplete, and are non-binding.
4.12. ZS provides the contractual software in executable form (object code). The source code is not part of the contract and will only be delivered if it has been agreed in written or electronic form. The distribution of source code of software by third parties is not owed. A documentation of the source code is not owed unless it has been agreed in writing.
5. Change of Scope or Specifications
5.1. All changes or additions to the contract require the written or electronic form to be legally effective. Verbal orders or changes are only binding if they are confirmed by ZS in writing or electronically within one week and the customer does not object in writing or electronically after receipt of this confirmation within one week.
5.2. ZS will examine the Customer's request for change and its impact on the existing agreement. The examination shall be reimbursed with the usual hourly rate. ZS shall communicate the results to the Customer. In doing so, it will either submit a detailed proposal for the implementation of the request for amendment or explain why the request for amendment cannot be implemented.
5.3. If the change is feasible according to the outcome of the examination, the Contracting Parties will vote on the content of the proposal for the implementation of the request for amendment. If an agreement is reached, the contract is amended to this extent. If no agreement is reached, the original scope of delivery remains the same.
5.4. Agreed dates shall be postponed, if and to the extent that they are affected by the amendment, taking into account the duration of the examination, the vote on the proposed amendment and, where appropriate, the change requests to be executed plus an appropriate start-up period. ZS will communicate the new deadlines to the Customer.
5.5. The Customer shall bear any additional costs resulting from the changes or additions, including costs for the examination of the effects on the existing agreement and the costs for the services already or partly provided which are no longer required. The usual hourly rate apply for this.
5.6. If there are findings in the course of the ongoing work that the expenditure associated with the implementation will significantly exceed the expected expenses and if the cause is to be seen in an undefined description of the tasks owing to the effort involved, Additional costs after checking the feasibility of the work and the resulting increase in the cost of the work, are communicated to the Customer and must be borne by the Customer. The Customer may also decide not to carry out the further work. The compensation is then based on the expenses incurred up to this point in time.
6. Terms of payment
6.1. All payments must be paid to ZS without any deduction within 7 days after receipt of the invoice. The date of receipt of the payment at ZS is decisive. Offsetting against counterclaims is only permitted if the claims are undisputed.
6.2. If the advance payments, security payments or other payments are not provided after a reasonable period of two weeks, ZS may terminate the contract without notice. The assertion of further rights remains reserved, all accounts receivable of the ZS become immediately due in one amount.
6.3. ZS reserves the right to charge advance payments amounting to 30% of the agreed or estimated contract amount immediately after the order has been placed. Contracts with an order value of less than 1.000,00 EUR will only be concluded with at least 50% advance payment.
6.4. If the Customer does not pay the invoice amount stated on the invoice, ZS is entitled to demand default interest of 8% above the base rate.
6.5. ZS is entitled to assign outstanding claims to third parties without the consent of the Customer. As far as a worsening of the financial circumstances of the customer is suspected, ZS is entitled to demand payment in advance, bank guarantees or security deposit.
6.6. The Customer has to raise any objections against invoices of ZS within 4 weeks after receipt of the invoice against ZS. After expiry of this deadline, objections can only be asserted if the Customer was prevented from observing the deadline without fault.
6.7. Ordinary invoices are always to be sent by e-mail, unless otherwise agreed in the contract. If the Customer extraordinarily requires invoices by mail, an additional fee of EUR 5 will be charged by ZS to the Customer for each invoice.
6.8. Due to a defect, the customer may withhold payments at a proportionate portion for the defect to be taken into account.
7.1. The compensation for the services provided is to be paid in Euro. The stated prices are exclusive of statutory value added tax and are stipulated in the contract, in written or electronic form.
7.2. If compensation has been agreed on a time basis, it will be billed on the basis of the actual time incurred, which will be adjusted for the qualification and skills of appointed employees, which is calculated based on the internal experience of ZS (to reduce indirectly the hourly rate for the less qualified specialists). Unless otherwise agreed in writing or electronically, the usual hourly rate of the ZS apply.
7.2.1. If it can be foreseen that the actual costs will exceed those estimated by more than twenty (20) percent, ZS will immediately notify the Customer of the higher costs.
7.2.2. Travel times are calculated as working hours at 50% at weekends and on public holidays to 100%.
7.2.3. At the Customer request the compensation of the services of the ZS can have a maximum limit. In this case, the customer is aware that the services can either not be provided in full, not to the desired degree or level of detail.
7.2.4. ZS adjusts prices yearly to the general cost development. If the agreement is not reached, both contracting parties may terminate the agreement with effect from the date of the price increase.
7.3. If a fixed compensation has been agreed, ZS is entitled to an advance payment and to reasonable minimum down payments – 30% at the begin of the contract, 20% at the first partial delivery, 20% at the second partial delivery and the remaining 30% in the case of complete delivery according to the contract, unless otherwise agreed.
7.3.1. ZS shall be entitled to a reasonable increase in the initially agreed compensation if the incomplete or incorrect information or improper cooperation of the customer is such that the workload to be provided is considerably higher than the estimates that were used by ZS upon conclusion of task assignment.
7.4. Unless otherwise agreed with the Customer, all expenses, fees and travel expenses incurred by ZS within the scope of the contract shall be borne by the Customer and will be charged further at the cost price.
8. Customer's cooperation duties
8.1. The customer is obliged to support ZS as far as possible in fulfilling its contractual obligations in good time and free of charge for ZS, insofar as this is necessary, especially at obtaining necessary approvals and information, providing the necessary access data, the means of communication and connections as well as the hardware and software, at provision of secure remote access, as well as the access to the necessary infrastructure and premises where necessary.
8.2. The Customer supports ZS in questions of the course of the project, in the definition of the requirements and service provision (specifications), in the provision of the required information, pictures, texts and documents. The Customer controls the completeness of the task definition, which must be done in writing, after all the details have been discussed, before it is to be fulfilled. The Customer supports ZS in the execution of reviews and quality assurance of the services.
8.3. Content to be provided by the Customer must be made available in a standard, directly usable, digital standard format. If a conversion, optimization or further processing of the content is required in a different format or presentation, the Customer shall pay the costs incurred according to the usual hourly rate of the ZS.
8.4. For proper problem detection and troubleshooting, it is assumed that the Customer has not intervened in the application, the infrastructure or its configurations, and has not modified them for their proper operation. It is particularly necessary that the error is adequately described by the Customer (including indication of the error message) and, if possible, with a screenshot. All recognizable defects and damages must be reported without delay.
8.5. Customer's cooperation duties are always the main service obligations and must be carried out by the customer at his own expense. If the Customer does not provide the required cooperation services, not in time or not in the agreed manner, the consequences resulting there from such as, for example, delays or additional costs shall be borne by the Customer himself.
8.6. The Customer is responsible for the secure storage of all confidential information, user identifications, passwords or access codes.
8.7. The Customer is not entitled to hand over the user IDs, passwords or access codes provided to the ZS to the third party.
8.8. The facilities, documents, systems, infrastructures and other materials made available to the Customer during the project remain the property of ZS.
8.9. In connection with a project to be started, the customer will award contracts to other agencies or service providers only after consultation and in agreement with ZS.
8.10. If ZS deems it necessary, the Customer will provide a test environment that will enable ZS to provide quality services.
8.11 Use of the services of ZS by third parties requires a separate written agreement. The Customer has no claim that ZS permits the use by third parties.
8.12. After providing the service, ZS is entitled to destroy the documents received from the Customer. At the request of the customer, ZS sends the documents back.
9. Project management and quality assurance
9.1. The Contracting Parties shall nominate one and only one project manager, who is responsible for the performance of the contractual obligations for the contracting party nominally responsible, within one week of the assignment.
9.2. Changes to the designated persons must be reported to the parties without delay. The resulting extra costs shall be borne by each competent party at its own expense (e.g. the Customer or the contractor bear the cost of the new project manager on his own side, the Customer bears the costs for the new requirements, different views or the concrete realization of the old requirements represented by the new project manager).
9.3. The project managers are informed at regular intervals of progress, problems and obstacles of the execution of the contract, in order to be able to intervene if necessary.
9.4. If necessary, the contact person on the Customer side may include additional qualified employees for the purposes of the information retrieval but is solely responsible for the decision making of the Customer side. If the Customer does not fulfil the obligation to provide a contact person, the corresponding tasks are performed by a separate employee of the ZS. The Customer shall bear the associated extra costs.
9.5. The project managers from both sides are responsible for the quality assurance of the services and works owed. If required, the Customer’s project manager can include additional qualified employees for these purposes.
9.6. Quality assurance by ZS is carried out by qualified testers, which are determined internally from the project's begin. If necessary, they can participate in meetings with Customers.
9.7. The activities in project management and quality assurance always belong to the order and are settled at standard hourly rate.
10.1. ZS is entitled to partial acceptance or partial service provisions. If necessary, these are submitted for acceptance. These include: complete project phases for the fulfilment of the specific services (e.g. conception, design, development, quality assurance, launch), complete functional parts (e.g. development of the individual modules or functions for software, which is already in use or planned), complete documents or parts of documents (e.g. compilation of evaluations, studies, presentations).
10.2. The Customer will carry out any acceptance or partial acceptance of the services provided by ZS without delay. ZS is entitled to participate at the Customer's acceptance process. The acceptance must then be carried out within a period of one week. The Customer is not entitled to refuse acceptance for irrelevant defects.
10.3. At the request of ZS, the customer shall also be obliged to accept drafts and intermediate results if they can be reasonably judged on their own behalf.
10.4. If the acceptance fails, the customer shall provide ZS with a list of all defects in written or electronic form which prevent the acceptance. After the expiry of a reasonable period, ZS shall provide a deficient and acceptable version of the service.
10.5. If the customer does not reject or react to the acceptance within a period of two weeks after receipt of the notification of readiness for acceptance, the service shall be deemed accepted.
10.6. The acceptance is deemed to have taken place as soon as the Customer has taken advantage of the services and deliveries of ZS.
10.7. Complaints by the Customer at the acceptance are to be recorded in writing and signed by both parties.
10.8. If the customer refuses acceptance, he will fall into default of acceptance. In the event of default in acceptance, ZS shall have the right to demand either the acceptance of all or part of the order or to demand rescission of the contract or compensation for not fulfilling the contract by the Customer.
10.9. Change requests after approval represent a change in Scope or Specifications.
11.1. ZS shall be liable without limitation for deliberate or grossly negligent damage caused by ZS, its legal representatives or managerial staff, as well as deliberate damage caused by other means of fulfilment.
11.2. ZS shall be liable without limitation for deliberate or negligent damage resulting from injury to life, body or health by ZS, its legal representatives or vicarious agents.
11.3. ZS shall be liable for damage caused by a lack of assured characteristics up to the amount covered by the purpose of the assurance and which was apparent to ZS when the assurance was given.
11.4. ZS shall be liable for damage resulting from the infringement of cardinal obligations by ZS, its legal representatives or vicarious agents. Cardinal obligations are the essential obligations which form the basis of the contract which were decisive for the conclusion of the contract and on which the customer may rely. If ZS has slightly violated these cardinal obligations, its liability is limited to the amount that was typically foreseeable by ZS at the time of the respective service. The same liability scale applies to the liability for gross negligence of other vicarious agents.
11.5. The customer is responsible for backing up his / her data (backup), as far as this is not expressly part of the ZS' service. This includes, in particular, the safeguarding of the data to be maintained by ZS. Insofar as ZS creates a backup of the data for its own security, no guarantee or a legal claim of the customer for a proper execution arises. Such a self-created backup will be immediately deleted after completion of the work.
11.6. In the event of data loss caused by ZS, ZS is solely liable for the costs of copying and recovering that would have been incurred if the data had been duly safeguarded. ZS will not be liable for the loss of data if the damage is due to the Customer's failure to perform regular backups to ensure that lost data can be recovered at reasonable expense.
11.7. Liability for the registration and protection of the delivered by ZS services in terms of patent, model, copyrights and trademark rights is void.
11.8. Liability for loss of profit is excluded.
11.9. Liability for the Product Liability Act remains unaffected.
11.10. ZS is not liable for errors and malfunctions in open-source systems and programming by third parties, even in cases where these impair the services of ZS. Also, not for any requirements expected by the customer that ZS has not explicitly confirmed.
11.11. If ZS grants a guarantee for certain features of the contractually agreed service, such a guarantee is only binding for ZS if it has been declared in writing.
11.12. The limitation or exclusion of liability according to these GTC also applies to personal liability of the organs of ZS, employees and other representatives and vicarious agents of ZS.
11.13. All claims for damages shall become statute-barred after twelve months from the commencement of the statutory period of responsibility.
12. Rights to use
12.1. Upon full payment of the total compensation, ZS grants the Customer a non-exclusive, non-transferable, non-sublicensable, temporally and spatially unlimited right of use to the resulting copyrighted works, unless otherwise agreed electronically or in writing. The work created by ZS may only be used to the agreed extent for the type of usage agreed upon in accordance with the contract and the agreed purpose. Any other or extended use is permitted only with explicit consent and may involve additional costs (e.g. other framework conditions for software can set new, more stringent requirements).
After full payment of the total remuneration, ZS grants the customer a non-exclusive, non-transferable, non-sublicensable, unlimited right of use, temporally and spatially
12.2. The resulting copyrighted works may be processed without the consent of ZS.
12.3. Since the copyright is not transferable, the copyright of the resulting works remains with ZS. ZS is entitled to include information on the author's creation at suitable places on the works created by ZS, which may not be removed without the consent of ZS.
12.4. Without separate agreement in written, ZS shall not be obliged to deliver intermediate results, drafts, layouts, source files, etc. leading to the contractual project work.
12.5. If ZS' services contains open source components, the rights are transferred only to the extent and in accordance with the respective open source license. ZS explicitly points out that the open source components may only be used, edited and subject to orders within the scope of the respective license.
12.6. Proposals of the customer and his other cooperation have no influence on the amount of the compensation and do not give rise to any joint copyrights.
13. Dates and deadlines
13.1. ZS shall not be responsible for any delays in services due to circumstances within the customer's area of responsibility, violation of the obligation to cooperate and force majeure. They entitle ZS to postpone the provision of the services concerned by the duration of the disability plus a reasonable start-up period.
13.2. If ZS culpably fails to comply with a binding delivery or service deadline by more than two weeks, the customer may be in default of 0.8% of the value of the delivery or service for the duration of the delay per completed week, but no more than 8% of this value, as a flat-rate claim for damages, as far as a lesser damage cannot be proved. Thus, all claims for damages from delay are compensated. Further liability in the event of default is excluded.
13.3. All performance dates and / or deadlines mentioned are indicative and are only binding if they have been indicated as binding by the two contracting parties.
14. Defect Claims
14.1. Defects shall be proven by means of a comprehensible description of the error symptoms, as far as possible, by written or electronic records, video recordings, screenshots or other illustrative documents in writing or electronically in a form prescribed by ZS. The notice or description of defect, made by client shall allow the reproduction of the defect.
14.2. If the service provided is defective, ZS is entitled to remedy the defect within a reasonable period of time at its discretion by repair or by a new delivery.
14.3. ZS has the right of at least two attempts at improvement.
14.4. If the supplementary performance fails, the Customer may, at his discretion, reduce the price of this service or its part or withdraw the award of the contract with regard to faulty service or its part. This also applies if ZS refuses the supplementary performance or the subsequent performance is unacceptable to the Customer. The other services are not covered by this cancellation, as long as these or their parts can be used independently by the Customer.
14.5. Any further claims on the part of the Customer, in particular due to defects, are excluded. This does not apply in case of intent, infringement of essential contractual obligations by ZS, gross negligence. This also does not apply in case of injury to life, body or health.
14.6. Any claims for defects with regard to the created or adapted software are not applicable, as long as the Customer himself has made changes or has made it by a third party, unless these changes were without influence on the origin of the defect.
14.7. If, after notification of a defect, ZS has determined that no defect exists, all costs resulting therefrom shall be borne in full by the Customer. Cost calculations are based on the usual hourly rate.
14.8. If the deficiencies are ascertained by ZS itself within the scope of the quality assurance (before acceptance by the customer), the improvement of these defects is part of the software development and thus is part of the owed service of the ZS. It is to be settled in full with usual hourly rate. The defects resulting from light or gross negligence of the ZS are completely remedied at the expense of ZS. Defects or errors arising from specification gaps or incomplete information are fully resolved at the expense of the Customer. Defects resulting from the use of third-party programming, which conflicts with existing programming or integration with third-party software must be fully resolved at the expense of the Customer. All other deficiencies are to be settled at a fifty (50%) percent reduced hourly rate.
If the defects are identified by ZS itself within the framework of quality assurance (before acceptance by the customer), the improvement of these defects is part of the software development and thus the performance of ZS owed.
14.9. The limitation period for defect claims is 12 months from acceptance.
15. Rights of Third Parties
15.1. The Customer is responsible for the contents of his websites, online shops, web applications and other software as well as for the content provided by the Customer. In this respect, the Customer indemnifies ZS from all costs and damages in the case of assertion of the claims of third parties. In the case of a legal dispute, the Customer shall bear all costs relating to there. ZS is not obligated to review the content for possible legal violations.
15.2. The software delivered by ZS is free from the rights of third parties, which are contrary to a contractual use. If the deficiencies persist, ZS shall be entitled to remedy the infringement of the rights of third parties by means of legal measures, or to alter or replace the services in such a way that third-party rights are no longer infringed, provided that the functionality of the services is impaired.
16.1. Subject to the fulfilment of the requirements for data protection and confidentiality, ZS shall be entitled to name the service on which the contract is based, with the nomination of the Customer as a reference project. Furthermore, ZS has the right to use the Customer’s brand, name, logos and slogans in connection with the reference project on all types of events and in all types of publications and media.
17. Privacy and Confidentiality
17.1. The contracting parties undertake to treat all knowledge of the business and business secrets of the other party, which are known to them in the context of this agreement, strictly confidential and not to make them accessible to unauthorized third parties.
17.2. This obligation shall continue for a period of two years after termination of the Contract. The obligation to protect personal data is unlimited in time.
17.3. The transfer to third parties subject to a statutory obligation to secrecy is not subject to approval. The submission to employees or vicarious agents, who need the information for their activities in the performance of contractual services, also does not require approval. The parties shall, however, ensure that such parties are bound by appropriate confidentiality obligations.
17.4. The prohibition of disclosure shall not apply insofar as the parties are obliged by law or by judicial or governmental orders to disclose the information. The other party shall be informed in advance of any such incident.
17.5. ZS operates an electronic customer area whose access may be made available to customers. The customer receives an individual password, which allows access to the customer area. The customer is not allowed to disclose the password to third parties and has to keep it carefully in order to rule out abuses. The customer is obliged to notify ZS immediately if the password has been lost or if it becomes known to the unauthorized third parties that the password has been obtained.
18. Transfer of rights and obligations
18.1. The Customer may transfer rights and obligations from this contract to third parties only with the prior written consent of ZS. Consent may only be denied in case of important reasons.
19. Non-solicitation Agreement
19.1. Both contracting parties undertake, for the duration of the cooperation of the contracting parties and for a period of one year after termination of the cooperation, neither to hire nor to employ employees of the other contracting party or its subcontractors as well as other vicarious agents.
20.1. If the Customer withdraws unauthorized from a given order, all costs connected with the fulfilment of the order and actually incurred are to be paid in full, irrespective of the degree of completion of the required services.
21. Additional conditions for the provision of individual software (work contract)
21.1. Individual software is developed specifically for use by a customer or company. For all deliveries and services in connection with the creation and transfer of individual software by ZS, these conditions shall additionally apply additionally.
21.2. The scope of performance is described in detail in the contract. Place of performance is the seat of ZS, unless otherwise agreed. The customer will Confirm delivery of the service in writing. The software is provided electronically.
21.3. An application documentation (user manual) is only created and provided if it has been agreed in writing in the contract. Online help is provided to the customer if it has been agreed in writing in the contract.
21.4. The source code will only be given to the customer if it has been agreed in written or electronic form.
21.5. The implementation is carried out by the customer under its own responsibility, unless otherwise stipulated in the contract. ZS is ready to assist or complete the implementation of the customer. All services rendered in this context will be calculated time-based, unless otherwise agreed. The acceptance of the implementation must be confirmed in writing by the customer in this case. Complaints on the part of the customer regarding the implementation must be recorded in writing.
22. Additional conditions for the release of standard software (purchase contract)
22.1. Standard software are software products that cover a clearly defined area of application and can be purchased as ready-made products. These were developed for the needs of a majority of customers in the market and not specifically for the client by the contractor. Our online offer is aimed exclusively at commercial customers.
22.2. ZS creates free and proprietary standard software, the licenses are attached to the respective products. If the terms of these GTCs overlap with the license terms, the license terms have priority. Specifications and descriptions can be found in the corresponding product pages.
22.3. The software licensed under free licenses is made available free of charge to the customer by way of donation. The user is not entitled to support services from ZS unless a separate written or electronic agreement has been made. In this case, the provisions of these GTCs apply.
22.4. The liability of ZS for the use of free software of ZS is limited to intent and gross negligence, claims for defects are excluded. This provision applies exclusively to customers from Germany.
22.5. Proprietary software, eg software extensions, modules, plugins etc. are made available to the customer for a fee and are protected by copyright.
22.6. Proprietary software may include third-party open source software. For such software, the customer only receives the rights of use resulting from the license terms that apply to this open source software.
22.7. A legal right of withdrawal within the meaning of § 312 b BGB does not apply. By placing an order for our software products, a binding purchase contract without right of withdrawal is concluded.
23. Additional conditions for the provision of support services (service contract)
23.1. ZS maintains complex IT infrastructure, support workstations, development environments, ticket system, versioning system, remote maintenance software and other IT automation solutions to ensure continuous and qualitative customer support.
24.2. All deliveries and services in connection with the maintenance of software by ZS are additionally based on these additional conditions.
23.3. Without a written support contract ZS does not provide ongoing support, service and consulting services within a specific time.
23.4. Business hours of ZS are Monday to Friday, 08: 00-17: 00. No business hours are Saturday, Sunday, the national holidays, Christmas Eve, New Year's Eve. It is the German time.
23.5. ZS offers the customer basic and additional services as part of its support services.
23.6. Unless otherwise agreed in the contract, the basic services include:
- fault analysis and defect removal for Standard Software of ZS) via the provision of available hotfixes, patches, bug fixes on request of the client,
- delivery of updates and upgrades,
- availability monitoring,
- automatic monitoring service for contract software and server infrastructure of the customer, provided ZS has appropriate permissions and monitoring is technically possible,
- software versioning,
- provision of phone support,
- provision of e-mail support
- provision of dedicated contact person,
- processing of faults, defect notifications and customer inquiries.
23.7. Unless otherwise agreed in the contract, additional services are:
- fault analysis and defect removal (except for Standard Software of ZS),
- implementation of the software on the customer's infrastructure,
- manual monitoring,
- remote support,
- training and briefings of employees,
- installation of delivered updates and upgrades,
- setup and configuration of the software based on customer-specific requirements,
- advice on all questions related to the use of the software,
- extended advice with regard to alleged faults and defects that occur due to operating errors, environmental problems or other external influences on the part of the customer,
- modification or redevelopment of the programming on a different technological basis,
- programming of additional extensions and program parts,
- adjustments to software and other requirements that are indirectly related to the software or are aimed at changing the software features.
23.8. ZS assumes responsibility for detecting software errors, providing a detailed description of the errors and correcting such errors, so that the Software provides the services specified in the Support Agreement. If ZS is not the licensor of the software, the status of the software must be described in detail by both parties in the form of a status report before the start of the support contract.
23.9. Defect removal may also include ZS taking action on the customer's part to bypass or temporarily correct errors.
23.10. The obligation to provide the support services refers to the most recent and previous release status (meaning minor versions). In return for the compensation of additional costs, ZS can update or upgrade the software used by the customer or support the older software version.
23.11. Insofar as it is not expressly permitted under copyright law or the contract, the customer shall not make any changes to the software or have them carried out by third parties as long as the support services are provided by ZS.
23.12. Provided a support contract is concluded in writing, ZS is obliged to respond to a customer support request within the contractually agreed response time, by e-mail or by telephone. The scope of the services to be provided by ZS is specified in the completed support contract.
23.13. A guarantee regarding the solubility of a problem is not given. The solution notification or the notification that a support request is not solvable does not have to be made within the contractually agreed response time.
23.14. Adherence to the agreed reaction time requires the timely receipt of all documents to be supplied by the customer as well as compliance with the agreed terms of payment and other obligations by the customer. If non-compliance with the deadlines is due to force majeure, the deadlines will be extended accordingly.
23.15. If parts of the software cannot be used in an economically sensible manner after fourteen working days from the date of notification of the defect, the customer may charge 10% of the monthly flat-rate compensation for basic services as a flat-rate compensation for each working day on which these parts were predominantly unusable, insofar as a flat-rate remuneration has been agreed. Further claims from removal of defects are excluded.
23.16. The agreed compensation for basic services under a support contract is charged in advance as a monthly lump sum, irrespective of the amount of the time actually claimed. If such a lump sum has not been agreed, all basic services will be billed on an hourly basis. The additional services are to be paid on an hourly basis on the basis of actual services rendered. Out-of-business-hours support we charged based on hourly rate, which is increased by 100%. ZS may provide such service at its discretion unless otherwise agreed in the contract in writing.
23.17. The necessary changes due to legal requirements, which can only be realized by partial or complete reprogramming of the affected software, are treated as additional services. If the customer rejects the offer for programming and implementation, ZS is not obliged to provide a service.
23.18. Unless otherwise agreed, the support contract enters into force with the signing. If the contract is concluded for an indefinite period, the contractual relationship can be terminated by each contracting party with one month's notice to the end of the month.
23.19. If the support contract has been concluded for a certain period, the customer has the right to terminate the contract prematurely with a notice period of two months to the end of the month. During its term of the contract for both parties is terminable only for good cause. The termination must be in writing. The relevant time is the receipt of the notice of termination.
24. Final Clauses
24.1. All agreements between the Contracting Parties are contained in the Offer, these General Terms and Conditions and any attached annexes in written or electronic form. There are no further agreements. In particular, no verbal ancillary agreements have been concluded that have not been confirmed in writing or in electronic form.
24.2. Amendments and additions to the agreement must always be made in writing in order to be effective. This also applies to the amendment or abolition of the written form clause itself.
24.3. German law applies to the exclusion of the UN purchase law.
24.4. Exclusive jurisdiction for all disputes arising out of or in connection with the contract shall be the place of the principal branch of ZS if the Customer is a merchant or a legal person of public law.
24.5. Place of fulfilment is the place of the main branch of ZS.
24.6. Should a provision be ineffective in whole or in part or lose its legal validity later, the validity of the remaining provisions remains unaffected thereby. The same applies if a regulation gap should arise.
24.7. Instead of the ineffective or impracticable provisions, an appropriate regulation should apply, which would be as close as possible to the will of the parties to the contract as well as to the purpose and purpose of the contract.