- Scope: The following terms and conditions (“GTC”) shall apply to deliveries, services and licenses of any kind provided by codestryke GmbH or VergeLink GmbH, both Jahnstraße, 23, 89168 Niederstotzingen, Germany (“stryke”) to its customers, unless otherwise agreed in the purchase, license, service, work or other contract (“Contract”) concluded between stryke and the customer.
- Definitions: For the purposes of these GTC, the following are: “Deliverables” – the items, rights, licenses or tangible or intangible works that are the subject of the Contract.
- Objection clause: Deviating or supplementary terms and conditions of the customer are hereby objected to, unless their validity has been expressly consented to. Such consent shall only apply to the individual case, not to previous or future deliveries and services.
- Cost estimates are not binding.
- Technical documents, cost estimates, drawings and calculations provided to the customer in the course of order negotiations and contract execution may not be used by the customer for other purposes, reproduced or made available to third parties. Ownership, copyright and other rights to such documents are reserved by stryke. In case the Customer uses such documents without being entitled to do so according to the contract, stryke is entitled to demand immediate surrender.
- stryke and the Customer may contractually agree on the modification of the contractually agreed scope of services. The expense caused by the change of the contractually agreed scope of services shall be borne by the customer. Any change to the contractual scope of services requires express agreement. The application of § 650b para. 2 BGB (Customer’s right to order) and § 648a para. 2 BGB (partial termination) is excluded.
- The terms of delivery for all deliveries shall be “Ex Works” of the Incoterms 2010. Deliveries shall be made ex works Munich unless otherwise agreed.
- Delivery dates are only binding if expressly confirmed in writing by stryke.
- Intellectual Property Rights: The Customer’s right to use delivery items protected by intellectual property rights, in particular computer software products including user documentation (“Software”), is limited to the Customer’s internal business purposes and is determined exclusively by the contract and these GTC. All other rights to such delivery items are reserved. The source code of Software shall only be delivered if this is expressly agreed. The Customer undertakes to refrain from (a) decompiling, reverse engineering, disassembling or otherwise converting copies of the software provided to it into a form perceptible to persons or (b) modifying, adapting, translating or using them for the production of wholly or partially derived works, unless this is permitted under the contract or mandatory statutory provisions. The same applies to the publication of the results of any benchmark tests without stryke’s prior consent. All backup copies must faithfully reproduce all trademarks and proprietary and user notices provided by the rights holder. Any legally mandatory rights of the Customer to copy and edit, if and to the extent this is necessary for a permitted intended use of the software including data backup and error correction, remain unaffected as well as the right to decompile, which is legally mandatory. The Customer may only sell or transfer copies of the software to a third party with the prior express consent of stryke or allow the third party to access the software. The consent to transfer shall be granted if the third party assumes all rights and obligations under the contract and these GTC in place of the Customer and the Customer destroys any copies of the Software in his possession and there is no good cause for refusing the consent. The lending of the Software for non-profit purposes is exempt from the foregoing consent requirement as long as the borrower submits to the restrictions of this section and the lending does not result in multiple copies of the Software being used simultaneously. To the extent Customer is entitled under the Agreement to distribute copies of the Software to third parties (“End Users”) or to permit End Users to access the Software, such right shall exist only if and to the extent Customer (a) contractually imposes restrictions on the End Users’ use of the Software at least to the extent set forth in the foregoing paragraphs of this Section to protect stryke’s rights, (b) takes reasonable technical and organizational measures to ensure compliance with such restrictions; and (c) complies with any export restrictions imposed, even if End Users are only permitted to access the Software. Customer shall indemnify stryke (a) for any (i) infringement of Intellectual Property Rights by such End Users and (ii) for any other acts or omissions of End Users in connection with the Software as if they were its own acts or omissions and (b) for any and all third party claims of End Users in connection with the Software pursuant to Section 22.
- Development Results: All industrial property rights, rights of use and exploitation rights to and from all development results created by stryke or its vicarious agents in connection with the contract are exclusively entitled to stryke worldwide. As far as the development was done on behalf of the Customer, the Customer shall only receive a non-exclusive right of use in accordance with the contract and these GTC. stryke is entitled to use and exploit all adaptations, reworkings or improvements of delivery items developed by the Customer. The Customer grants stryke a non-exclusive, spatially, temporally and factually unrestricted, royalty-free right of use and exploitation, which may be sublicensed without consent.
- Confidentiality: The customer allows stryke to mention the work for the customer as a reference in presentations and public communication as long as no secret technical details are disclosed. Both parties agree to keep confidential business and technical information received from the other party strictly confidential and to use it exclusively for the purposes of the contract, as far and as long as there is a legitimate interest in keeping it confidential. This restriction shall not apply to information which can be proven to have been in the public domain or already known to the recipient at the time it was provided or which is published after it has been provided to the recipient without the recipient being responsible for this. Confidential Information may only be disclosed to third parties if they are employees, vicarious agents or consultants of the Party or its affiliates (collectively: “Aides”) who are obligated to maintain confidentiality and require knowledge for purposes of the Agreement. Each Party warrants that the provisions of this Confidentiality Clause shall also be observed by its Auxiliaries, including after termination of the contractual relationship between the Party and such Auxiliaries. The Recipient shall inform the Holder without undue delay if confidential information provided by the Holder was already known to it, information which the Holder considers confidential has become known to it, or it is requested by a court, an authority or a third party to provide confidential information. This confidentiality clause shall remain in effect even after termination of the contract as long as and to the extent that there is a legitimate interest in keeping the information confidential.
- Acceptance: Works created by stryke are to be accepted by the Customer within two weeks after delivery, unless a longer or shorter acceptance period has been agreed upon. Acceptance shall be confirmed in writing by the Customer if the agreed specifications are essentially fulfilled and the work does not show any significant defects. As long as stryke has not received the written acceptance confirmation from the customer, the customer is not entitled to use the work. If the Customer nevertheless uses the Work, this shall be deemed acceptance. After the expiration of the applicable acceptance period, the Customer shall within a comment period of one week either expressly confirm the acceptance or assert defects that prevent acceptance, unless stryke has set a shorter or longer reasonable comment period. Upon expiration of the applicable comment period, the work shall be deemed accepted if the Customer has not expressly refused acceptance within the comment period, stating all defects asserted by him, of which at least one material defect must actually exist. If the Customer refuses acceptance, stryke shall be entitled to revoke any rights of use already granted to the Customer with respect to the delivery item and to prohibit the Customer from further use until acceptance. stryke may submit self-contained partial deliveries or partial services separately for acceptance (partial acceptance). The acceptance of the overall performance shall then be deemed to have taken place with the last partial acceptance. A separate final acceptance shall not take place. For the acceptance of the deliveries and services, stryke has the choice whether the demonstration takes place via video, via screenshot or in a demo at the stryke location in Munich. The program code will be handed over after payment. A test environment will not be provided, unless otherwise contractually agreed.
- Payment term: All invoices are due for payment net (without deduction) immediately, unless otherwise agreed in the contract. Even without a reminder, the customer shall be in default of payment no later than two weeks after the due date and receipt of the invoice.
- Price list: Deliveries and services for which no specific remuneration has been agreed shall be invoiced in accordance with the stryke price list applicable at the time of receipt of the order. For services, a standard daily rate of 1.250€ on weekdays and 2.500€ on Saturdays, Sundays and holidays applies unless otherwise agreed.
- Offsetting by the customer is only permitted if the underlying counterclaims are undisputed or have been legally established. The same applies to the assertion of – also commercial – rights of retention. In any case, the customer may only assert rights of retention insofar as his counterclaim is based on the same contractual relationship. The above exclusions shall not apply if the claim and counterclaim are legally linked in such a way that one is only to be fulfilled in dependence on the fulfillment of the other.
- Defects of quality and title: Insofar as the customer has purchased delivery items from a dealer, claims for defects of quality or title are to be asserted exclusively against this dealer in accordance with the contract concluded with him. In all other cases the following shall apply: In the event of any material defects or defects of title of delivery items, the customer may, in accordance with the statutory provisions, primarily demand rectification or subsequent delivery to remedy the defect and only withdraw from the contract or reduce the agreed remuneration if these fail or in the other exceptional cases specified by law. However, the following shall have priority: 1. the customer’s rights in the event of material defects or defects of title shall be excluded insofar as the delivery item deviates only insignificantly from the quality specifications and/or the suitability of the delivery item for the owed use is only insignificantly restricted. 2. the customer shall immediately repair or replace the delivery items or reduce the agreed remuneration. The customer shall inspect the delivery items immediately after delivery and notify us of any defects or deviations. If the customer fails to notify us immediately after delivery of any deviations from the delivery, in particular defects, deviations in quantity or delivery of items other than those ordered, these shall be deemed to have been approved as delivered. The complaint is no longer immediate if it is not received by stryke within 14 days after delivery. 3. stryke reserves the right to choose the type of subsequent performance. If stryke does not exercise the right of choice within a reasonable period of time set by the Customer, the right of choice is transferred to the Customer. stryke reserves the right – also in case of contracts for work and services – to make two attempts at subsequent performance, unless this is unreasonable for the Customer in the individual case. If stryke delivers subsequent goods for the purpose of supplementary performance, the customer is obligated to surrender the defective delivery item and has to pay compensation for the value of the benefits of use. 4. the rights of the customer in case of material defects or defects of title are excluded, if the customer (a) uses the delivery item for a purpose other than the one stipulated in the contract or contrary to the legal regulations or the guidelines issued by the manufacturer or (b) without written consent of stryke (i) processes or modifies it or (ii) uses it together with other software or hardware, which is not expressly approved for such use by the manufacturer of the delivery item, unless the aforementioned circumstances were not the cause for the defect. 5. the rights of the customer in case of defects of title are excluded, as far as they refer to rights which are only valid outside of the country to which the delivery item is delivered, the EEA and Switzerland or as far as the customer does not fully leave the defense to stryke on demand and gives all necessary powers of attorney. 6 / 8 6. the delivery items are exclusively intended for entrepreneurial traffic. 7. if delivery items are resold or delivered, stryke is liable in case of their defectiveness for claims of the customers against the customer or for expenses, which the customer has to bear in this context in relation to the customer within the scope of subsequent performance, only if stryke cannot prove that stryke is not at fault with regard to the defectiveness and only within the limits of clause 19. stryke’s obligation for subsequent performance remains unaffected. The above claims shall become time-barred according to clause 20. Further claims according to §§ 439, 445a/b, 478, 635 BGB are excluded. If the service is based on a contract for work and services, stryke shall only prepare and deliver the documentation of the software or hardware as well as operating and user manuals if this has been explicitly agreed upon in the contract.
- Guarantees of quality require an express declaration by stryke in any case. In case of doubt, an independent manufacturer’s warranty that is attached to a delivery item does not constitute a warranty of quality.
- Defect of quality: Defects of quality according to §434 are only present if a work or a service does not fulfill one of the functions explicitly stated in the contract. A material defect in a software development for a user application is explicitly not present if certain technologies are not supported. If nothing to the contrary is agreed in the contract, the software must only be compatible with the following software:
-Windows 10 (> Build 1809)
-Screen size: 1920×1080 pixels (Full HD)
Chrome from version 86
-Screen size: 1920×1080 pixels (Full HD)
-Linux (Ubuntu 20.04/ Debian Buster)
-Linux (Ubuntu 20.04/ Debian Buster)
- Liability: A contractual or non-contractual liability for damages on the part of stryke only exists if the damage is due to gross negligence or intent. For culpable injury to life, limb or health of a natural person, stryke is liable according to the statutory provisions even in case of simple negligence. In addition, stryke shall be liable in accordance with the statutory provisions also for the breach of an essential contractual obligation due to simple negligence, however, limited to the financial disadvantages that stryke should have foreseen as a possible consequence of the breach of contract at the time of the conclusion of the contract. Material contractual obligations in the aforementioned sense are obligations the fulfillment of which is essential for the proper execution of the contract and the achievement of the purpose of the contract and the compliance with which the customer may regularly rely on according to the content and purpose of the contract. This includes in particular the obligation to provide the contractual services on time and in a manner that does not endanger the life, limb, health and property of the customer and its employees. stryke is liable for damages in connection with the loss of data only to the extent that such damages could not have been avoided by appropriate regular data backup. Likewise, stryke shall not be liable for damages caused by delivery items to the extent that such damages could have been avoided by checking the work results of the same at regular intervals. Any limitations of stryke’s liability agreed upon in the contract or in these GTC shall also apply to any personal liability of stryke’s organs, employees or vicarious agents. The liability of stryke in connection with material defects or defects of title of delivery items that are provided without remuneration, e.g. demo versions of software, is limited to intent, gross negligence and fraudulently concealed defects. Any mandatory product liability claims under the Product Liability Act as well as claims arising from any quality guarantee shall remain unaffected by the above limitations. A reversal of the statutory burden of proof shall not be established by this Clause 15.
- Statute of limitations: All software and hardware solutions from stryke are not suitable for purposes in which there is a risk to life and limb in the event of misuse, failure or malfunction. Prior to use for such purposes, written confirmation must be obtained from stryke stating that there may be a risk to life and limb. A contractual or non-contractual liability for damages on the part of stryke exists only if the damage is due to gross negligence or intent. For culpable injury to life, limb or health of a natural person, stryke is liable in accordance with the statutory provisions even in the case of simple negligence. In principle, stryke’s liability is only limited to the amount that was implemented in the contract in the last 12 months with the respective customer. For damages in connection with the loss of data stryke is not liable. Limitations of stryke’s liability agreed upon in the contract or in these GTC also apply to any personal liability of stryke’s bodies, employees or vicarious agents. The liability of stryke in connection with material defects or defects of title of delivery items provided without remuneration, e.g. demo versions of software, is limited to intent, gross negligence and fraudulently concealed defects. If stryke delivers defective or faulty hardware, stryke is only liable for replacement or reimbursement of costs within the contractually agreed warranty period. Costs associated with the defect of hardware, such as for the removal of the defective hardware, the return shipment and the reinstallation of the functional hardware, stryke is not liable. A reversal of the legal burden of proof is not justified by this clause 15.
- Obligations and duties of the customer; indemnification from third party claims: The Customer shall, at its own expense and risk, provide stryke with reasonable access to all materials, infrastructure, personnel and information and all other cooperation and support required by stryke for its own deliveries and services. To this extent, the Customer shall in particular provide the entire technical infrastructure required for the use of the supplies and services of stryke, unless stryke has expressly undertaken to provide parts thereof. Furthermore, the Customer shall provide any operational requirements, interface information, test data and test cases and shall cooperate in acceptance and testing. Customer shall indemnify stryke, regardless of fault, against all justified or unjustified claims of end users or other third parties (including public authorities) and all resulting damages, costs and expenses (including the costs of legal defense the “Third Party Claims”), which are raised in connection with stryke’s deliveries or services under the Agreement or with works, information or data provided by the Customer or instructions of the Customer, unless these claims are based on a breach of contract by stryke, for which stryke is liable for damages according to the provisions of the Agreement. In this case, the indemnification shall be pro-rated according to causation or only for the amount by which the third party claim exceeds stryke’s contractual liability to the Customer. The indemnification claim shall not become time-barred prior to the fulfillment of the third party claim. If not all hardware necessary for the internal functional test for the software creation is provided by the Customer, the Customer shall bear all costs, if any, for correction work for necessary adjustments according to clause 14.
- Subcontractors: stryke is entitled to use subcontractors for all services under the contract; stryke’s liability towards the customer remains unaffected.
- Partial Invalidity: Should one or more provisions of the contract or these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected.
- Place of performance for all obligations under the contract is Munich or, if stryke informs the Customer that contractual services will be provided from a specific branch office, this branch office.
- Choice of Law: The contractual relations between the parties are subject to German law.
- Jurisdiction: For all disputes arising from or in connection with the contract or these GTC, the courts in Ulm shall have exclusive jurisdiction, provided that the Customer is a merchant, a legal entity under public law or a special fund under public law.