General terms and conditions
General terms and conditions of Especial.
General Terms and Conditions (GTC) of Kolb & Dietrich GbR
§ 1 Scope of application
(1) The following General Terms and Conditions of Kolb & Dietrich GbR (Especial), Erkrather Str. 401, 40231 Düsseldorf, Germany (hereinafter referred to as “Especial”), apply to all contracts of Especial if the contractual partner is a company, a legal entity under public law or a special fund under public law.
(2) Conflicting GTC of the customer shall only apply if and insofar as they are expressly accepted by Especial in writing.
(3) These GTC are subject to change to a reasonable extent for the customer. The currently valid GTC are available at https://especial.digital/de/legal/gtc.
§ 2 Conclusion of contract, collateral agreements
(1) Offers and proposals from Especial are always subject to change and non-binding until the contract is concluded. The contract is concluded by separate written agreement, by written or electronic order confirmation or by execution of the order by Especial.
(2) Product descriptions, representations and test programs are descriptions of performance and represent neither warranties of characteristics nor guarantees of quality. Assurances and guarantees require the written confirmation of Especial's management.
(3) Any collateral agreements, supplements, amendments and/or other deviations from these GTC must be in writing to be effective.
§ 3 Delivery, Performance
(1) Delivery times stated by Especial are planning dates. They shall only be binding if expressly confirmed in writing by Especial. Partial services and deliveries are permissible to a reasonable extent. Changes to the order shall result in the cancellation of agreed dates and deadlines. Especial is only responsible for a delay and/or the impossibility of delivery and/or performance if this was caused intentionally or by gross negligence on the part of Especial. This principle also applies in particular in the event of force majeure, strike, lockout and official orders.
(2) The respective concrete scope of services results from the individually concluded contract. Unless otherwise agreed therein, Especial owes the provision of services as the essential primary contractual obligation. A concrete work result is not owed in this respect.
(3) Unless expressly agreed in writing, disclosure of the source code and/or individual proprietary components of the contractually owed service is not part of the contract and is expressly not owed.
§ 4 Duties of the Customer
(1) The Customer shall provide necessary data, in particular content to be entered for the subject matter of the contract, in a timely manner. He shall be responsible for sufficient resources and information within the scope of his duty to cooperate. He shall ensure the availability of the required number of competent employees from a professional and IT-technical point of view and sufficient computer capacities such as memory, processor performance and line capacities. His responsibility also includes the trouble-free operation of the facilities for remote maintenance and support, especially stable data lines and interfaces.
(2) If Especial deems it necessary, the customer shall provide a test environment (hardware with current software version, in particular the operating system and server software corresponding to the later conditions of use).
(3) The customer shall provide Especial with the prerequisites, information and data according to paragraphs 1 and 2 of this § 4 in formats requested by Especial. Any changes to these prerequisites must be notified to Especial in writing without delay, at the latest within 3 working days. Any additional expenses caused by the customer not fulfilling and/or changing the requirements of paragraphs 1 and 2 of this § 4 are not at the expense of Especial and are to be paid separately by the customer. Any delivery and/or service dates are then no longer binding.
(4) Insofar as Especial provides the customer with drafts and/or test versions, specifying a reasonable period of time for checking for correctness and completeness, the drafts and/or test versions shall be deemed approved upon expiration of the period of time, insofar as Especial does not receive a request for correction.
(5) The customer is responsible for compliance with any legal obligations when using the subject matter of the contract.
(6) The customer is obliged to protect himself adequately against data loss.
§ 5 Acceptance
(1) The customer shall accept the services of Especial in writing within 2 weeks (inspection period) after receipt of the written acceptance request.
(2) If the customer is not notified of the readiness for acceptance, the time at which the customer should reasonably have become aware of the services shall apply instead of the time of notification.
(3) At the end of the inspection period (expiry of the deadline) pursuant to subsection 1, the performance shall be deemed to have been accepted even without the need for a declaration by the customer.
(4) Section 640 (2) sentence 1 BGB shall apply in addition.
§ 6 Payment, Default
(1) Especial's prices are not fixed / lump sum prices. Prices and calculation result from the underlying contract. In the absence of such a provision, a daily rate of EUR 1,000.00 (net) shall be deemed to have been agreed upon as of signature.
(2) Especial's prices do not include the statutory sales tax. Shipping costs, installation, training and other additional services are not included in the price, unless otherwise agreed.
(3) Additional services which are not contractually agreed, in particular which are not listed in Especial's offer, shall be remunerated separately. This applies in particular, but not conclusively, to additional expenses as a result of:
- the submission of data in an unsuitable form,
- necessary and reasonable use of services of third parties,
- expenses for license management,
- testing, research services and legal audits commissioned by the customer, and
- services rendered outside business hours.
(4) Unless otherwise stipulated in the underlying contract, all invoices of Especial are due for payment immediately upon issuance without deduction. The prices do not include the respective statutory value added tax. Payments are only considered made when Especial can dispose of the full payment amount. If the receipt of the invoice is disputed between the parties, § 286 para. 3 p. 2 BGB shall apply.
(5) If the customer is in default, Especial is entitled - without prejudice to the other legal rights - to make all claims against the customer due immediately, to stop its own deliveries and services, to demand appropriate security, to withdraw from the contract or to terminate it without notice and, if necessary, to demand damages for non-performance. If Especial claims damages, these shall amount to 30 % of the order value, unless the customer proves a lower damage or Especial proves a higher damage.
(6) A set-off with non-titled counterclaims that have not been expressly recognized by Especial is generally not permissible.
(7) Especial is entitled to offset payments against the customer's older debt first, despite the customer's provisions to the contrary.
§ 7 Rights of use
Unless otherwise stated in the underlying contract, Especial grants the customer the non-exclusive and non-transferable right to use the contractually agreed services as intended.
§ 8 Copyright notices and references
(1) The customer grants Especial the right to include the logo of Especial and, if applicable, an imprint in the work results of Especial used by the customer and to link these with each other and the website of Especial. The customer will take over all protection notes such as copyright notes and other legal reservations unchanged. This applies in particular also to the references to the author attached in the program code.
(2) Especial reserves the right to use rendered services such as designs and objects, even if they are based on customer templates, for presentation purposes, in particular to include the customer's subject matter of the contract in a reference list for advertising purposes and to set corresponding links.
§ 9 Warranty
(1) The statutory warranty rights period is 12 months from handover.
(2) In the case of obvious defects in performance, the contractual partner shall be obliged to give notice of defects within 3 working days of becoming aware of them. Other performance defects must be notified immediately upon discovery. Defects in one part do not entitle the contractual partner to complain about the entire delivery or service, unless the defect-free part would be of no interest to the contractual partner.
(3) Especial shall, at its discretion and to the exclusion of other warranty rights of the customer, deliver a replacement or rectify the defect. Multiple rectifications are permissible in this respect.
(4) In case the customer does not follow Especial's operating instructions, makes changes to delivered products and/or interferes with delivered data and/or software in an inadmissible way, any warranty is void. This does not apply if the customer can refute a correspondingly substantiated statement that the defect is based on one of these circumstances.
§ 10 Liability
The liability for claims for damages and claims for reimbursement of futile expenses, regardless of the legal basis, is determined as follows:
(1) For damages caused intentionally or by gross negligence by legal representatives or vicarious agents of Especial, Especial is liable without limitation.
(2) In the case of a slightly negligent breach of essential contractual obligations by Especial, the obligation to pay compensation is limited to the foreseeable damage typical for the contract. Otherwise, liability for damages caused by slight negligence is excluded. Paragraph 3 shall remain unaffected. A contractual obligation is essential if the fulfillment of this obligation makes the execution of the contract possible in the first place and the customer may rely on the compliance with this obligation.
(3) Liability for personal injury, i.e. injury to life, body or health, is unlimited. The statutory mandatory liability, for example under the Product Liability Act, shall remain unaffected.
(4) In the event of data loss or data destruction, Especial shall only be liable if it caused the destruction intentionally, by gross negligence or due to a breach of a material contractual obligation. A contractual obligation is essential if the fulfillment of this obligation makes the execution of the contract possible in the first place and the customer may rely on the compliance with this obligation. Especial's liability is limited to the amount of the damage that would have occurred even in the case of proper data backup by the customer.
(5) All claims under this § 10 shall become statute-barred within 1 year; with regard to the beginning of the limitation period, § 199 paragraph 1 BGB shall apply. This shall not apply in cases of liability due to intent, gross negligence, personal injury or in cases of mandatory liability, for example under the Product Liability Act.
§ 11 Place of Jurisdiction & Final Provisions
(1) The place of performance is Especial's place of business in Düsseldorf. If the customer is a merchant, legal entity or special fund under public law, Düsseldorf is agreed as the exclusive place of jurisdiction for all disputes arising from the contractual relationship. The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
(2) Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions of these GTC. In this case, the parties shall replace the invalid provision with another provision that comes closest to the economic purpose of the omitted provision in a permissible manner.