Translation Disclaimer: These Terms and Conditions are an automated translation of the original German version. They are provided solely for the convenience of non-German-speaking users. In case of any inconsistency, ambiguity, or dispute regarding interpretation, the original German version shall prevail and be the only legally binding version.
Supplement to our General Terms and Conditions (GTC), see texts “HPTF AV” and our contractual terms and conditions for the performance of services “HPTF DL”.
Confidentiality: The contents of this document are the property of HighPots GmbH. It may not be duplicated, disclosed to third parties, or otherwise published, either in whole or in part, without the written permission of HighPots GmbH or its subsidiaries, branches, or shareholders.
1)
HighPots creates software for the customer in accordance with the service description underlying the conclusion of the contract (see 2.2).
2)
Das dem Kunden von HighPots zu überlassende Vervielfältigungsstück der Software beinhaltet nur den Objektcode.
3)
The software shall be delivered together with operating instructions (user documentation or online help). Unless otherwise agreed, the operating instructions shall be written in the language of the software user interface. If there is no user interface (backend software), the language of the documentation shall be English. The delivery or creation of further documentation requires a separate written agreement, in particular regarding the content and scope.
4)
HighPots shall create the software and operating instructions (together: performance items) in accordance with the principles of proper professional practice.
5)
Analysis, planning, consulting, and training services are not covered by this contract and are not owed by HighPots.
1)
The customer shall communicate their technical and functional requirements for the HighPots software in full and in detail and shall provide HighPots with all documents, information, and data required for the creation of the software in a timely manner.
2)
The service description is based on the technical and functional requirements specified by the customer. The service description conclusively reflects the quality of the software owed. Changes to the service description shall only be made in accordance with 3.
HighPots provides analysis, planning, and consulting services, including those related to the service description, only on the basis of a separate contract (see also 1.5).
3)
HighPots shall involve the project manager designated by the customer as the contact person (Section 2.1 of the HPTF AV) to the extent required for the performance of the contract. The decisions of the contact persons shall be recorded in writing.
4)
The customer has no claim to the provision of services at their premises.
5)
The obligations of cooperation for customers/clients must be observed (“HPTF MP”).
Both contracting parties may propose changes to the service description (see 2.2) and service provision. The following procedure has been agreed for this purpose:
1)
HighPots will review the customer’s proposed change and inform them whether or not a comprehensive review of this proposed change is necessary.
2)
If a comprehensive review of the proposed change is necessary, HighPots shall inform the customer within a reasonable period of time of the estimated time required and the remuneration. The customer shall issue or reject the review order within a reasonable period of time.
3)
If a comprehensive review of the proposed change is not necessary or the commissioned review has been completed, HighPots will either
The proposed changes include, in particular, changes to the service description and their impact on the service period, the planned dates, and the remuneration.
4)
The customer shall either reject a change offer within the acceptance period (binding period) specified therein or declare acceptance in writing or in another form agreed between the contracting parties.
5)
The customer shall either reject a change offer within the acceptance period (binding period) specified therein or declare acceptance in writing or in another form agreed between the contracting parties.
6)
Until the amendment proposal is accepted, work will continue on the basis of the previous contractual agreements. The performance periods shall be extended by the number of calendar days on which work was interrupted in connection with the amendment proposal or its review. HighPots may demand reasonable compensation for the duration of the interruption, unless HighPots has otherwise deployed or maliciously failed to deploy its employees affected by the interruption.
7)
Unless otherwise agreed, the change procedure shall be documented in writing or in text form on a HighPots form at the request of HighPots. Any changes to the service description must be agreed in writing or in another form agreed between the contracting parties.
8)
Sections 3.2 to 3.7 apply accordingly to proposed changes to HighPots.
9)
Proposed changes should be sent to the project manager (2.3) of the contracting party.
1)
Upon full payment of the remuneration owed, HighPots grants the customer the non-exclusive right to use the service items permanently in its company for the contractually stipulated purpose, unless otherwise agreed.
The right of use granted to the customer for the services provided by HighPots may only be transferred to third parties by the customer upon complete relinquishment of their own rights.
2)
All other rights remain with HighPots.
3)
HighPots is entitled to take appropriate technical measures to protect against non-contractual use. This must not significantly impair the use of the software on an alternative or successor configuration.
4)
HighPots may revoke the customer’s right of use if the customer violates usage restrictions or other regulations for protection against unauthorized use (see also 5.8) in a manner that is not insignificant. HighPots must first set the customer a grace period to remedy the situation. In the event of a repeat violation and in special circumstances that justify immediate revocation after weighing the interests of both parties, HighPots may revoke the right of use without setting a deadline. The customer must confirm in writing to HighPots that they have ceased use after revocation.
1)
The customer shall ensure that competent personnel are available to support HPTF throughout the project and, from the handover onwards, for the quality inspection (7.1) and the use of the software.
2)
Upon request by HighPots, the customer shall provide suitable test cases and data for quality testing in machine-readable form. If the customer fails to provide such test cases and data, HighPots may select and create suitable test cases itself in return for additional remuneration.
3)
The customer is obliged to download the software provided for this purpose after notification of its availability.
4)
The customer must report defects in accordance with section 2.3 of the HPTF AV. Unless otherwise agreed, the relevant HighPots forms and procedures shall be used for this purpose.
5)
The customer shall support HighPots as necessary in remedying defects, in particular by enabling remote access to the customer’s system and providing other analysis material.
6)
The customer shall immediately notify HighPots of any changes to the conditions of use after delivery.
7)
Unless otherwise agreed, the customer shall additionally store all documents, information, and data provided to HighPots in such a way that they can be reconstructed from data carriers in the event of damage or loss.
8)
The customer may not take any action that could encourage unauthorized use. In particular, the customer may not attempt to decompile the software unless authorized to do so. The customer shall notify HighPots immediately if they become aware of any threat of or actual unauthorized access in their area.
1)
Unless otherwise agreed, HighPots may also deliver the service items to the customer by electronic transmission or by making them available for download. If the service items are made available for download, HighPots shall notify the customer of this.
2)
If the items are transmitted electronically, the risk of accidental loss shall pass to the customer upon receipt by the teleservices provider commissioned by HighPots to forward the items.
1)
The customer shall immediately—usually within 14 calendar days—inspect all delivered items, in particular software or executable parts of the software agreed as partial deliveries, for defects, in particular for conformity with the agreement (quality inspection).
The customer will use test cases and data that are suitable for practical use with the software. HighPots can coordinate with the customer regarding the test procedures and also accompany and support the quality inspection on site.
2)
The customer shall notify us immediately of any defects that occur during or after the quality inspection, at the latest seven calendar days after becoming aware of them (5.4).
3)
In addition, the commercial obligation to inspect and give notice of defects applies (Section 377 of the German Commercial Code (HGB)).
4)
HighPots guarantees that the items of performance correspond to the contractual quality when used in accordance with the contract. Clause 4 of the HPTF AV applies in particular to material defects. Clause 5 of the HPTF AV applies in particular to legal defects.
5)
The customer shall only be entitled to assert claims for defects if the reported defects are reproducible or otherwise verifiable. Sections 5.4, 7.2, and 7.3 shall apply in particular to the notification of defects.
6)
If the customer is entitled to claims for defects, they shall initially only be entitled to subsequent performance within a reasonable period of time. Subsequent performance shall include, at HighPots’ discretion, either rectification or the creation of a new object of performance. The interests of the customer shall be taken into account appropriately when making a choice.
7)
If the subsequent performance fails or cannot be carried out for other reasons, the customer may, under the statutory conditions, reduce the remuneration, withdraw from the contract, and/or—within the scope of Section 6 of the HPTF AV—claim damages or reimbursement of expenses. If the subsequent performance is delayed, Section 3.4 of the HPTF AV applies to damages and reimbursement of expenses. Section 6 of the HPTF AV applies in particular to compensation for damages or reimbursement of expenses. The customer shall exercise their right of choice with regard to these claims for defects within a reasonable period of time, usually within 14 calendar days.