1. subject matter of the contract
1.1 The Provider shall create software for the Customer in accordance with the service description on which the conclusion of the contract is based (see Section 2.2).
1.2 The copy of the software to be provided to the customer by the provider contains only its executable form.
1.3 The software is delivered including operating instructions (user documentation or online help). The operating instructions are written in the language of the user interface of the software, unless otherwise agreed.
The delivery or creation of further documentation requires a separate written agreement, in particular regarding the content and scope of the documentation.
1.4 The Provider shall create the software together with the operating instructions (together: objects of performance) in accordance with the principles of proper professional practice.
1.5 Analysis, planning, consulting and training services are not the subject of this contract and are not owed by the Provider.
2. cooperation between the contractual partners
2.1 The Customer shall inform the Provider of its technical and functional requirements for the software in full and in detail and shall provide the Provider in good time with all documents, information and data required for the creation of the software. This also includes the description of practical and suitable test cases and data for the quality test (section 7.1).
2.2 The service description conclusively reflects the owed quality of the software. The Provider shall provide analysis, planning and consulting services, including in connection with the service description, only on the basis of a separate contract against separate remuneration (see also Section 1.5).
2.3 The provider shall involve the project manager named by the customer as contact person (Section 2.1 of the AV Bitkom) insofar as this is required for the execution of the contract. The decisions of the contact persons must be recorded in writing.
2.4 The customer is not entitled to the provision of services at his premises.
3. procedure for service changes
Both contracting parties may propose changes to the service description (Section 2.2) and service provision. The following procedure has been agreed for this purpose:
3.1 The Provider shall review a change proposal from the Customer and inform the Customer whether or not a comprehensive review of this change proposal is required.
3.2 If a comprehensive review of the proposed amendment is required, the Provider shall inform the Customer within a reasonable period of time of the time and remuneration likely to be required for this. The customer shall issue or reject the audit order within a reasonable period of time.
3.3 If a comprehensive review of the change proposal is not required or the commissioned review has been completed, the Provider shall either
- submit a written offer to implement the changes (change offer). The change offer contains in particular the changes to the service description and their effects on the service period, the planned deadlines and the remuneration; or
- that the proposed change is not feasible for the provider within the scope of the agreed services.
3.4 The customer shall either reject a change offer within the acceptance period specified therein (binding period) or declare acceptance in writing or in another form agreed between the contracting parties. The customer shall inform the provider immediately of any rejection.
3.5 The Provider and Customer may agree that services affected by a change proposal shall be interrupted until the end of the review or, if a change offer is submitted, until the end of the binding period.
3.6 Until the change offer is accepted, the work shall continue on the basis of the previous contractual agreements. The performance periods shall be extended by the number of calendar days on which the work was interrupted in connection with the change proposal or its review. The Provider may demand appropriate remuneration for the duration of the interruption (Section 3.5), unless the Provider has deployed its employees affected by the interruption elsewhere or maliciously failed to deploy them.
3.7 Unless otherwise agreed, the amendment procedure shall be documented in writing or in text form on a form provided by the Provider at the Provider’s request. Any change to the service description must be agreed in writing or in another form agreed between the contracting parties.
3.8 Clauses 3.2 to 3.7 shall apply accordingly to the Provider’s proposed changes.
3.9 Proposals for changes must be addressed to the contact person (Section 2.3) of the contractual partner.
4. rights of use and protection against unauthorized use
4.1 Upon full payment of the remuneration owed, the Provider shall grant the Customer the non-exclusive right to use the objects of performance for the contractually stipulated purpose in its company on a permanent basis, unless otherwise agreed. A transfer of rights of use to third parties is only permitted if the customer has completely relinquished his rights. The customer shall be obliged to impose the obligations and restrictions on use that apply to it on the third party. This applies in particular to the Pﬂichten in accordance with Section 5.8. At the request of the provider, the customer shall confirm in writing that it has given up its own use.
4.2 All other rights remain with the provider.
4.3 The Provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the software on an alternative or successor conﬁguration must not be signiﬁcantly impaired by this.
4.4 The Provider may revoke the Customer’s right of use if the Customer significantly violates restrictions on use or other regulations to protect against unauthorized use (see also Section 5.8). The provider must set the customer a grace period for remedial action beforehand. In the event of recurrence and in special circumstances which justify immediate revocation after weighing up the interests of both parties, the provider may declare revocation without setting a deadline. The customer must confirm the cessation of use to the provider in writing after the revocation. The Provider shall grant the Customer the right of use again after the Customer has demonstrated and assured in writing that there are no longer any violations of the right of use and that previous violations and their consequences have been eliminated.
5. pﬂects of the customer
5.1 The customer shall ensure that expert personnel are available to support the provider during the project and from the time of handover for the quality inspection (Section 7.1) and the use of the software.
5.2 At the request of the Provider, the Customer shall provide suitable test cases and data for the quality test in machine-readable form (cf. Section 2.1). If the customer fails to hand over such test cases and data, the provider may select and create suitable test cases itself for an additional fee.
5.3 The customer is obliged to download any software provided for this purpose after notification of provision.
5.4 The customer must report defects, in particular in accordance with Section 2.4 of the AV Bitkom. Unless otherwise agreed, the corresponding forms and procedures of the provider shall be used for this purpose.
5.5 The customer shall support the provider as far as necessary in the execution of the contract and in the rectification of defects in accordance with Section 2.2 AV Bitkom and provide other analysis material.
5.6 The Customer shall inform the Provider immediately of any changes to the conditions of use after handover.
5.7 Unless otherwise agreed, the Customer shall also store all documents, information and data handed over to the Provider in such a way that they can be reconstructed on the basis of data carriers in the event of damage or loss.
5.8 The customer may not do anything that could encourage unauthorized use. In particular, he may not attempt to decompile the software unless he is authorized to do so. The customer shall inform the provider immediately if it becomes aware that unauthorized access is imminent or has occurred in its area.
6. handover and transfer of risk
6.1 Unless otherwise agreed, the Provider may also hand over the objects of performance to the Customer by electronic transmission or by making them available for download. If the service items are made available for downloading, the provider shall notify the customer of their availability.
6.2 Insofar as the objects of performance are transmitted electronically, the risk of accidental loss shall pass to the customer upon receipt by the teleservice provider commissioned by the provider to forward the goods.
6.3 If the objects of performance are provided for download, the risk of accidental loss shall pass to the customer upon provision and notification of the customer.
7. quality inspection and claims for defects by the customer
7.1 The customer shall inspect all delivered objects of performance, in particular software or executable parts of the software agreed as partial deliveries, immediately – generally within 14 calendar days – to ensure that they are free of defects, in particular that they are in accordance with the agreed quality (quality inspection). The customer shall use practical and suitable test cases and data for the software (see section 2.1). The provider can coordinate the test procedures with the customer and also accompany and support the quality inspection on site.
7.2 The customer shall duly report any defects occurring during or after the quality inspection without delay, at the latest seven calendar days after becoming aware of them (Section 5.4).
7.3 In addition, the commercial inspection and complaint obligation (§ 377 HGB) shall apply.
7.4 The Provider warrants that the objects of performance correspond to the contractual quality when used in accordance with the contract. Section 4 of the AV Bitkom applies in particular to material defects. Section 5 of the AV Bitkom applies in particular to defects of title. § Section 650 para. 2 BGB remains unaffected.
7.5 The customer shall only have claims for defects if reported defects are reproducible or otherwise verifiable. Sections 5.4, 7.2 and 7.3 apply in particular to the notification of defects.
7.6 If the customer is entitled to claims for defects, he shall initially only have the right to subsequent performance within a reasonable period of time. Subsequent performance shall include, at the discretion of the supplier, either rectification or the creation of a new object of performance. The interests of the customer are given appropriate consideration in the selection.
The customer shall enable the provider to install and remove the goods as part of the supplementary performance, unless this is unreasonable for the customer. The customer shall consult with the provider before taking any measures to remedy the defect.
If the customer is entitled to reimbursement of expenses, this shall only apply to a reasonable extent, taking into account the value of the relevant service in a defect-free condition and the significance of the defect.
7.7 If the subsequent performance fails or cannot be carried out for other reasons, the customer may reduce the remuneration, withdraw from the contract and/or – within the scope of Section 6 of the AV Bitkom – demand compensation for damages or expenses in accordance with the statutory requirements.
If the supplementary performance is delayed, Section 3.4 of the AV Bitkom shall apply to compensation for damages and expenses of the provider. Section 6 of the AV Bitkom applies in particular to compensation for damages or expenses.
The customer shall exercise any right of choice to which it is entitled with regard to these claims for defects within a reasonable period of time, generally within 14 calendar days of the customer becoming aware of the right of choice.
8 Validity of the AV Bitkom
In addition, the General Terms and Conditions of Contract of Bitkom (AV Bitkom) apply.