General terms and conditions of Tridata GmbH — Nuremberg

1. General regulations

1.1 Scope

1.1.1 The following general and special terms and conditions and delivery terms apply to all contractual relationships, contract-similar relationships and pre-contractual negotiations between Tridata GmbH, Äußere-Sulzbacher Straße 55-57, 90491 Nürnberg (hereinafter: ‘Tridata’) with their entrepreneurial customers (hereinafter: “Customer”), regardless of the type and scope of the service in the context of current and future business relationships.
1.1.2 The terms and conditions of Tridata apply exclusively to all to all contractual relationships, contract-similar relationships and pre-contractual negotiations. Conflicting terms and conditions of customers, other contractual partners or third parties are only valid if Tridata expressly agrees to their validity in writing. Tridata contradicts the form-based reference to the customer’s own terms and conditions.
1.1.3 The customer can object to the validity of Tridata’s terms and conditions in writing before the contract is concluded. In this case, Tridata reserves the right to withdraw offers and end the contract negotiations.
1.1.4 The establishment of contractual obligations presupposes that the type and scope of performance and consideration of both contracting parties have been specified in writing. Contract changes and additions must be made in writing in order to be effective. This also applies to the waiver of this clause.

1.2 Remuneration, terms of payment

1.2.1 Unless otherwise agreed, the agreed remuneration is due upon invoicing with a payment period of 14 days, but not before delivery of the contractual items or their provision for retrieval online and informing the customer about the provision.
1.2.2 Payments are to be made without deduction. Discount is only granted if this has been assured by Tridata in writing.
1.2.3 All prices are exclusive of the applicable statutory sales tax.
1.2.4 The prices for deliveries do not include transport and packaging for physical shipments. If it is made available for retrieval via a network, Tridata bears the costs of placing the software on the network, the customer bears the costs for the retrieval.
1.2.5 If payment is delayed, Tridata is entitled to charge the customer interest of 9 percentage points p. a. to be calculated above the respective base rate (Basiszinssatz). In the case of a return debit, additional costs for the new collection are incurred. In addition to the bank-side fees, a processing fee of EUR 15 per return debit will be charged.

1.3 Delivery dates and times, partial deliveries

1.3.1 Delivery dates and delivery periods are only binding if Tridata confirms them in writing as binding.
1.3.2 Delivery dates and delivery periods are subject to correct and timely delivery to Tridata, unless Tridata is responsible for the non-delivery by the upstream supplier.
1.3.3 Partial deliveries are permitted provided that the parts supplied are fully usable in isolation. Each partial delivery can be invoiced separately.

1.4 Limitation

The limitation period for all warranty claims is one year and begins with the delivery of the contractual items or their provision and notification thereof to the customer; the same period applies to other claims of any kind against Tridata, unless the following special provisions state otherwise.

1.5 Beginning and duration of permanent obligations, termination

1.5.1 Unless otherwise agreed, permanent obligations are concluded with a minimum contract term of 24 months. The contract term is extended by a period of a further 12 months if the contract is not terminated with a period of 3 months to the end of the respective contract term.
1.5.2 The right of termination for both parties is excluded during the term of the contract.
1.5.3 The right of the contracting parties to extraordinary termination for good cause remains unaffected.
1.5.4 Termination must be in writing.

1.6 Termination of contractual relationships

1.6.1 Upon termination of the contractual relationship, the customer must return the items, original data carriers including manuals and documentation provided to him. Any copies made must be deleted completely and permanently.
1.6.2 Tridata can also request the deletion or destruction of items provided instead of the return.

1.7 Retention of title and reservation of rights

1.7.1 All items delivered by Tridata remain the property of Tridata until all, including future or contingent, main and secondary claims from the contractual deliveries have been paid.
1.7.2 The granting of rights of use, in particular the granting of rights of use for the transfer of software, presupposes that the customer has paid the contractual remuneration. The customer is only entitled to use software that goes beyond the rights of use granted with the prior written consent of Tridata.
1.7.3 In all cases of termination of his usage authorization (e.g. by withdrawal, subsequent delivery), the customer releases all deliveries of the contractual items immediately and deletes all copies, unless he is legally obliged to keep them longer.

1.8 Confidentiality and data protection

1.8.1 The contracting parties undertake to treat all knowledge of confidential information and trade secrets of the other contracting party that has been acquired in the course of initiating and executing the contract as confidential for an unlimited period of time and to use it only for the purpose of executing the respective contract.
1.8.2 The customer will only make contractual objects available to employees and other third parties insofar as this is necessary to exercise the usage rights granted to him. He will instruct all persons to whom he grants access to contractual objects about Tridata’s rights to the contractual objects and the obligation to keep them confidential and will oblige these persons in writing to maintain the corresponding confidentiality, unless the persons concerned do not maintain confidentiality for at least the above extent for other legal reasons are committed.
1.8.3 The above obligations do not apply to trade secrets that (i) were already known to the other party to the contract or were known to the other party at the time of transmission; (ii) after their transmission by the contracting party, it became apparent through no fault of the other contracting party; (iii) have been made accessible to the other party by the third party in an unlawful manner and without restriction with regard to confidentiality or exploitation; (iv) which have been developed by a contracting party independently, without using the contractual partner’s trade secrets; (v) which must be published in accordance with the law, official order or court decision – provided that the publishing party informs the contracting party of this immediately and supports him in the defense against such orders or decisions; or (vi) insofar as the contractual partner is permitted to use or disclose trade secrets on the basis of mandatory statutory provisions or on the basis of this contract.
1.8.4 Tridata complies with the rules of data protection, especially if it is granted access to the customer’s operations or hardware and software. Tridata ensures that its vicarious agents also comply with these provisions. Details are regulated in a contract to be agreed separately on order processing (Art. 28 GDPR).

1.9 Liability

1.9.1 In all cases of contractual and non-contractual liability, Tridata only pays compensation in accordance with the following provisions:

in the event of intent in full, as well as in the absence of a condition for which Tridata has guaranteed;
in the event of gross negligence only in the amount of the foreseeable damage that should have been prevented by the breached obligation;
in other cases: only from a breach of an essential contractual obligation, if this jeopardizes the purpose of the contract, but always only in the amount of the foreseeable damage;
in addition, insofar as Tridata is insured against the damage incurred, within the scope of the insurance cover and suspensive due to the insurance payment.

1.9.2 The limitations of liability according to sec. 1.9.1 do not apply to liability for personal injury and liability in accordance with the Product Liability Act (Produkthaftungsgesetz).
1.9.3 Tridata is free to raise the objection of contributory negligence.

1.10 Choice of law, place of performance and place of jurisdiction

1.10.1 Only the law of the Federal Republic of Germany applies to all contractual relationships between the customer and Tridata. The application of the UN sales law (UNCITRAL) is excluded.
1.10.2 The place of jurisdiction for both parties is the seat of Tridata. Tridata is entitled to make its own claims at a customer’s place of jurisdiction. If the customer is not an entrepreneur within the meaning of sec. 14 of the German Civil Code, the legal regulations on the place of performance and jurisdiction apply.

2 Special provisions when using software interfaces and third-party content

In addition to the general provisions, the special provisions contained in this section apply to the use of software interfaces.

2.1 Object of the service at interfaces

2.1.1 Tridata provides interfaces to databases and systems from third-party providers as part of the respective range of services. These are digital connections via which data, content and services can be automatically retrieved and integrated into the functions and services provided by Tridata.
2.1.2 When providing interfaces to third-party systems, Tridata only owes the option of accessing, accessing and exchanging data and content at the transfer point to the third-party system. Unless otherwise agreed, the interface information of the third-party system provider (interface version), which the third-party system provider made available to Tridata for the first time after the contract was concluded, is binding for the provision of the service. If the third-party system provider does not transmit any interface information, the interface information published by it at the time the contract is concluded is binding. The adaptation to subsequently changed interface information of the third-party system provider is not owed and requires the conclusion of a separate agreement.
2.1.3 Tridata does not owe the data and content itself, which are transmitted for access, retrieval and exchange via the interfaces, nor their checking for topicality, correctness and completeness.

2.2 Disclaimer for third-party content

2.2.1 The customer is aware that access to such data and content stored by or provided by third parties as well as data exchange with databases and systems from third parties takes place via an interface provided by them, over which Tridata has no influence.
2.2.2 Tridata is not liable for damage or other financial disadvantages suffered by the customer as a result of incorrect data and content, unless these are attributable to causes for which Tridata is responsible.

3 Special provisions for the provision of software

In addition to the general provisions, the special provisions for software licensing contained in this section apply. The provisions apply to both permanent transfer and temporary provision of the software, unless it is expressly stated that the regulations only apply permanent transfer and temporary provision of the software.

3.1 Object of the contract

3.1.1 When software is transferred on a permanent-basis, the customer acquires the software specified in the offer, including the data contained therein, as well as the associated application documentation in the language specified there (collectively “software”) under the terms of use agreed in this contract. If software is provided on a temporary basis, Tridata rents the software for the agreed period. Only the version of the software that is current on delivery is owed. A transfer of updates is not owed, but requires a separate agreement.
3.1.2 The source code of the software is not part of the object of the contract.
3.1.3 For the quality of the software and the system requirements, the software description that is valid when the software is shipped and is available to the customer before the contract is concluded is ultimately decisive. Any further condition of the software is not owed. In particular, the customer cannot derive such an obligation from other representations of the software in public statements or in the advertising of Tridata or its employees or sales partners, unless Tridata has confirmed the quality beyond that in writing.
3.1.4 Tridata delivers the software by sending the ready-to-install object code of the software on a data carrier or by making it available for download by the customer and notifying the customer of the provision, stating all the information required for the download.
3.1.5 Installation and parameterization are not owed.

3.2 Installation, training, maintenance

3.2.1 For the installation of the software, Tridata refers to the installation instructions described in the application documentation, in particular to the hardware and software environment that the customer must have. Upon request, Tridata can install the software on the basis of a separate agreement and the applicable price lists.
3.2.2 Instruction and training are provided by Tridata on the basis of the applicable price lists.

3.3 Granting of rights of use
The type, content and scope of the granting of usage rights result from the respective offer from Tridata. Unless otherwise agreed, the following applies to the granting of usage rights:

3.3.1 Software purchase: Unless otherwise agreed, Tridata grants the customer a simple right to use the software for single-user use.
3.3.2 Software rental: In the case of temporary provision of the software (rental contract), Tridata grants the customer a simple, non-transferable right of use for the period of the contract. The maximum number of users who can access the software at the same time corresponds to the number of agreed licenses (‘concurrent user’). The use of the software is limited to operation at the agreed place of performance.
3.3.3 The customer is only entitled to use software that goes beyond the rights of use granted with the prior written consent of Tridata. In the event of additional use without consent, in particular if a larger number of users are used at the same time than agreed, Tridata is entitled to invoice the amount for further use in accordance with the price list valid at that time.
3.3.4 The customer may only use the software for the purpose of handling his internal business transactions. In particular (i) a data center operation for third parties or (ii) the temporary provision of the software (e.g. as Application Service Providing or Software as a Service) or (iii) the use of the software to train people who are not employees of the customer is not permitted and requires a separate agreement with Tridata. Commercial subletting or sublicensing is not permitted.
3.3.5 Duplication of the software is only permitted insofar as this is necessary for the contractual use. The customer may make backup copies of the software to the extent necessary in accordance with the rules of technology. Backup copies on movable data media must be marked as such and provided with the copyright notice of the original data medium.
3.3.6 If the customer has purchased the software by means of an online download, he is entitled to copy the software to a data medium in the event of a transfer for which Tridata’s distribution right has been exhausted. Incidentally, Tridata’s right to the online copy is exhausted in the same way as if the customer had received the software on a data carrier.
3.3.7 The customer is authorized to changes, extensions and other modifications of the software in the meaning of Section 69 c No. 2 UrhG only to the extent that the law permits it. Before the customer rectifies errors himself or through a third party, he allows Tridata two attempts to correct the error. The customer is not entitled to such changes, extensions and other modifications beyond the granted usage rights.
3.3.8 The customer is only entitled to decompile the software within the limits of Section 69 e UrhG and only if Tridata has not provided the necessary data and / or information within a reasonable period after written request to ensure interoperability with other hardware and software.
3.3.9 If Tridata provides the customer with additions (e.g. patches, additions to the operator’s manual) or a new version of the subject matter of the contract (e.g. update, upgrade), which replaces previously provided software, these are subject to these provisions correspondingly. If Tridata makes a new version of the subject of the contract available, the customer’s powers in relation to the old software will also expire without the express request for return as soon as the customer uses the new software productively.
3.3.10 Reproduction or revision of the application documentation is not permitted.

3.4 Customer’s duty of cooperation and information

3.4.1 The customer has informed himself about the scope of services and the essential functional features of the software.
3.4.2 It is the sole responsibility of the customer to set up a functional hardware and software environment for the software, which is also adequately dimensioned taking into account the additional load from the software.
3.4.3 The customer tests the software thoroughly before use to ensure that it is free of defects and that it can be used in the existing hardware and software configuration. This also applies to software that he receives as part of the warranty and software maintenance.
3.4.4 The customer observes the instructions given by Tridata for the installation and operation of the software.
3.4.5 If the software is provided on a temporary basis, the customer will report defects in the software immediately and will take Tridata’s advice on problem analysis into account within reasonable limits and pass on all the information available to him to correct the defect to Tridata.
3.4.6 Insofar as Tridata has additional service obligations beyond the provision of the software, the customer will cooperate to the required extent free of charge by for example providing employees, work rooms, hardware and software, data and telecommunications equipment.
3.4.7 The customer grants Tridata access to the software for troubleshooting and rectification, at the customer’s choice directly and / or via remote data transmission. Tridata is entitled to check whether the software is used in accordance with the agreed provisions. For this purpose, it may request information from the customer, in particular about the period and scope of the use of the software.
3.4.8 The customer takes reasonable precautions in the event that the software does not work properly in whole or in part (e.g. through daily data backup, fault diagnosis, regular review of the data processing results).
3.4.9 Unless the customer expressly indicates this in advance, Tridata can assume that all customer data with which Tridata can come into contact is secured. The customer bears disadvantages and additional costs from a violation of these obligations.
3.4.10 The customer must take appropriate precautions to protect the software against unauthorized access by third parties. He will keep the original data carriers and the data carriers with the copies he has made in accordance with the contract as well as the documentation in a secure place.
3.4.11 The customer assumes an obligation to inspect and give notice of defects in relation to all deliveries and services from Tridata in accordance with Section 377 HGB.

3.5 Material and legal defects; other performance disorders; Statute of limitations

3.5.1 In the case of permanent transfer of the software, Tridata guarantees within the warranty period according to the rules of the purchase law, in the case of temporary software leasing according to the rules of tenancy law for the agreed quality of the software and for the fact that the use of the software in the contractual scope by the customer does not conflict with third party rights. However, the guarantee for the freedom of the software from third party rights only applies to the country of destination agreed between the parties in which the software is to be used. Without an express agreement, the guarantee applies to the country in which the customer is based.
3.5.2 In the case of temporary software leasing (rental agreement), Tridata initially provides warranty for defects in quality through supplementary performance. For this purpose, it provides the customer with a new, defect-free software version or remedies the defect; elimination of defects also applies if Tridata shows the customer reasonable options for avoiding the effects of the defect.
3.5.3 In the event of legal defects, Tridata initially provides a guarantee through supplementary performance. For this purpose, Tridata, at its own discretion, provides the customer with a legally flawless possibility of using the supplied software or an exchanged or modified equivalent software.
3.5.4 Tridata is entitled to make subsequent performance dependent on the fact that the customer has paid at least a reasonable part of the remuneration already due.
3.5.5 The customer is obliged to take over a new software version if the contractual scope of functions is retained and the takeover does not lead to significant disadvantages.
3.5.6 If two attempts at subsequent performance fail, the customer is entitled to set a reasonable period to remedy the defect. He must expressly and in writing point out that he reserves the right to withdraw from the contract and / or to claim damages if it fails again.
3.5.7 If the rectification also fails in the period, the customer can withdraw or terminate the contract with the software transfer or reduce the remuneration, unless in the case of permanent transfer of the software there is a minor defect in the software. Compensation for damages or reimbursement of futile expenses due to a defect is made by Tridata within the limits set out in these general terms. After the expiry of a period set in accordance with sentence 1, Tridata can request that the customer exercise his rights resulting from the expiry of the period within two weeks of receiving the request. After the deadline, the right to vote is transferred to Tridata.
3.5.8 If Tridata provides services for troubleshooting or rectification without being obliged to do so, Tridata can demand remuneration for this in accordance with its usual rates. This applies in particular if a defect cannot be proven or cannot be attributed to Tridata. The additional effort on the part of Tridata, which arises from the fact that the customer has not complied with his cooperation and information obligations, must also be paid for.
3.5.9 If third parties assert claims that prevent the customer from exercising the contractually granted usage rights, the customer shall inform Tridata immediately in writing and comprehensively. He authorizes Tridata to take legal action against third parties alone and out of court. If the customer is sued, he agrees with Tridata and only carries out process actions, in particular acknowledgments and comparisons, with Tridata’s consent.
3.5.10 The customer can only derive rights from other breaches of duty by Tridata if he has given notice of this in writing and has granted a period to remedy the situation. This does not apply if a remedy is out of the question due to the nature of the breach of duty.
3.5.11 In the event of intent or gross negligence on the part of Tridata, in the case of fraudulent concealment of the defect, in the case of personal injury or legal defects as defined in section 438 para. no.1 a BGB, and in the case of guarantees (section 444 BGB), the statutory limitation periods apply, as well as for claims according to the product liability law (Produkthaftungsgesetz).

4 Special provisions for support and software maintenance

In addition to the general provisions, the special provisions for support (user help) and software maintenance listed in this section apply insofar as their provision has been agreed.

4.1 Scope, Object of the services
4.1.1 The subject of agreed support is the provision of assistance with questions regarding the operation of the software supplied by Tridata. This does not include the elimination of errors, defects or the delivery of software updates. Unless otherwise agreed, the customer sends questions about the operation of the software to Tridata by email. Tridata’s customer service will assist the customer by email. Support times are Monday to Friday from 9:00 a.m. to 5:00 p.m., with the exception of public holidays in Bavaria.
4.1.2 The subject of agreed software maintenance is the elimination of errors, defects and delivery of updates to the software, including the relevant documentation outside the warranty period and / or insofar as this is not the subject of the statutory warranty obligation. Tridata provides the customer with new versions or releases via an update function in the software only as part of software maintenance. New documentation and manuals are supplied in digital form. The latest version of the software created by Tridata is maintained. Older versions are only maintained on the basis of a written agreement.

4.2 Adaptation to changed standards

4.2.1 If (mandatory) legal regulations and standards change, which are important for the software and the operating procedures of the contractor, Tridata will make the appropriate adjustments available in good time before they come into force, insofar as this is in view of the time of the Publication of legal changes is possible and reasonable.
4.2.2 The obligation to adapt is fulfilled if the usability of the software is not or only insignificantly restricted under the changed legal regulations and standards.

4.3 Customer’s obligations to cooperate

4.3.1 To effectively describe, narrow down, identify and report errors, the customer must follow the instructions given by Tridata as part of the error analysis.
4.3.2 The customer names a contact person who is sufficiently competent to specify error messages and questions.
4.3.3 If ‘on-site visits’ are necessary in exceptional cases, the customer will ensure access to the IT-System on which the software is running. In addition, the customer will support Tridata in troubleshooting within reasonable limits. In particular, after consultation, the customer provides operating personnel for the IT-System, data carriers and necessary peripheral devices and necessary communication facilities (in particular telephone) at the installation site of the system.
4.3.4 The customer takes suitable measures for the event that the software does not work in accordance with the contract, in particular through alternative methods, data backup and continuous review of the results. It must be possible to reconstruct data from machine-readable data material with reasonable effort.
4.3.5 In the event of violation of the customer’s obligation to cooperate, Tridata will invoice separately at the list prices and conditions applicable at the time the service is provided. In the event of a sustained breach of cooperation obligations by the customer, Tridata is also entitled to terminate the contract for support and software maintenance after a reasonable notice period without observing a deadline.

4.4 Remuneration, settlement, adjustment of remuneration

4.4.1 The basis for the remuneration is the respective price of the software plus fee-based software adjustments (creation and adjustment of software in accordance with Section 5).
4.4.2 Billing takes place on the 1st of each month in advance. Expansions to the software that are subject to a fee are summarized on the reporting date of the 1st of each quarter on the basis of the bills and extend the billing basis for the subsequent period.
4.4.3 There is no separate billing. The underlying contract document is considered a permanent invoice.
4.4.4 In contracts with an indefinite term, Tridata reserves the right to adjust the remuneration for due to changed living costs or price increases in the area of personnel and material costs. Tridata will notify the customer of any change in the maintenance fee in text form. The change will take effect after the month following the date of receipt. In the event of an increase of more than 10% within 12 months of the last determination, the customer is entitled to terminate the contract with a notice period of fourteen days before the end of the month before the increase takes effect.

5 Special provisions for creating and modifying software

In addition to the general provisions, the special provisions listed in this section apply to the creation or modifying of software to specific customer requirements.

5.1 Conclusion of contract
The object of performance is the provision of specific development services according to the customer’s specifications and the production of the agreed work result (Werkerfolg). This presupposes that Tridata submits a written offer that contains the necessary specifications for the work description and that the customer accepts the offer.

5.2 Terms of payment, flat rate for termination

5.2.1 Unless otherwise agreed, the customer is obliged to make a 50 percent down payment when placing the order, 45 percent when transferring the contract software to the test environment (deployment staging system) and 5 percent when transferring it to the production system (go-live).
5.2.2 If the customer cancels the order in accordance with Section 648 of the German Civil Code, Tridata can demand a flat-rate remuneration of 15 percent of the agreed remuneration. The customer is free to prove that Tridata saves expenses as a result of the termination of the contract, so that the remaining remuneration is lower if they are offset against the agreed remuneration.
5.2.3 Tridata is free to request compensation up to the agreed remuneration, taking into account the expenses saved as a result of the cancellation of the contract.

5.3 Acceptance, test phase

5.3.1 The customer is obliged to take delivery if the work has the agreed quality. Acceptance cannot be refused due to minor defects.
5.3.2 Acceptance is the same if the customer does not accept the work within a reasonable period determined by Tridata, although he is obliged to do so.
5.3.3 Unless otherwise agreed, the customer immediately transfers the work to the customer’s test system after delivery and notification of completion by Tridata. The test phase is then 10 calendar days from the transfer to the customer’s test system. Acceptance is the same if the customer does not report any defects by the end of the test phase.
5.3.4 If the customer takes over the work in his live system, it is equivalent to acceptance if the customer does not complain about defects within 10 calendar days despite the presence of recognizable defects or does not indicate that the continued use of the work only serves to limit the damage.

5.4 Warranty

5.4.1 Tridata warrants that at the time of acceptance, the work is free of defects that cancel or not insignificantly reduce the value or suitability for the normal use and for the use stipulated in this contract.
5.4.2 During the period, Tridata will remedy justified defects by performing two remedies, either by rectification or by replacement. In the event of minor errors, Tridata can optionally provide a workaround and finally eliminate the deficiency with the delivery of the next update. The customer’s right to cancel the contract or to reduce the remuneration is excluded during this time.
5.4.3 If the rectification fails several times and it is unreasonable for the customer to wait, the customer can withdraw from the contract or reduce the remuneration. In addition, the customer can demand compensation in lieu of performance or reimbursement of unsuccessful expenses within the framework of the statutory provisions.

6 Special provisions for the delivery of hardware on a purchase basis

In addition to the General Provisions, the special provisions in this section for the delivery of hardware on a purchase basis apply.

6.1 Object of the contract
The object of the contract for agreed delivery of hardware on a purchase basis is the delivery and transfer of the purchased items in accordance with the following provisions. Installation, installation or production of the technical operational readiness are not the subject of this contract. The provision of corresponding services requires a separate agreement.

6.2 Delivery, force majeure, transfer of risk
Vertragsgegenstand bei vereinbarter Lieferung von Hardware auf Kaufbasis ist die Lieferung und Übereignung der Kaufsachen nach den nachfolgenden Bestimmungen. Aufstellung, Installation oder Herstellung der technischen Betriebsbereitschaft sind nicht Gegenstand dieses Vertrags. Die Erbringung entsprechender Leistungen setzt eine gesonderte Vereinbarung voraus.

6.2.1 Delivery is made at the customer’s expense to the address specified in the offer.
6.2.2 When the goods are handed over to the carrier specified by Tridata, the risk of accidental loss or deterioration passes to the customer. Upon written request from the customer, Tridata takes out appropriate freight insurance at the customer’s expense.
6.2.3 Agreeing a specific date requires Tridata to confirm it in writing.
6.2.4 If, despite reasonable care, Tridata is prevented from fulfilling its obligation by force majeure, in particular due to the occurrence of unforeseeable, exceptional circumstances (e.g. energy supply difficulties, strikes or lockouts, operational disruptions), the delivery period will be extended to a reasonable extent. If delivery and performance become impossible in these cases, Tridata is released from its performance obligations.

6.3 Customer obligations
6.3.1 The customer ensures that the goods can be delivered properly at the agreed delivery time.
6.3.2 The customer is obliged to observe the manufacturer’s guidelines for the required system environment when setting up the purchased item.
6.3.3 The customer is obliged to check the goods for proper function and completeness immediately after delivery and to notify Tridata immediately in writing.

6.4 Material and legal defects

6.4.1 A material defect exists if the contractual objects do not have the specified quality or are not suitable for the contractually agreed use.
6.4.2 The customer is not entitled to claims for defects if he has changed the products or had them changed by third parties or used them with products other than the given ones, unless the customer can prove that the material defect occurred at the time of delivery.
6.4.3 Claims for defects in the products (including documentation) become time-barred one year after delivery, insofar as there are no claims for injury to body, life and health or intent or gross negligence.
6.4.4 Any defects that become known and occur are to be reported by the customer in text form if possible and immediately after discovery. Customer should document the defects in the most comprehensible way possible.
6.4.5 In the event of a defect, Tridata will provide subsequent performance within a reasonable period of time in accordance with the following regulations:
6.4.5.1 At Tridata’s option, supplementary performance can be carried out either by rectification or by new delivery. The customer is entitled to request a certain type of supplementary performance if the other form of supplementary performance is unreasonable. Insofar as third-party rights are violated, Tridata can, at its own discretion, make the improvement by acquiring a right of use sufficient for the benefit of the contract for the customer or by changing or replacing functions only with effects that are acceptable to the customer, so that their contractual use no longer includes protective rights injured.
6.4.5.2 Tridata can also remedy the defect by giving the customer instructions by telephone, in writing or electronically.
6.4.5.3 Tridata bears the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs. The customer bears any additional effort that Tridata incurs because the purchased item has been moved by the customer to a location other than the agreed delivery location.
6.4.5.4 If it turns out that the notice of defects was unjustified, Tridata can demand reimbursement of the expenses incurred, provided the customer acted at least negligently.

6.4.6 If the subsequent performance fails and the customer has set a reasonable period of time that allows at least two attempts to remedy the defect, the customer can either withdraw from the contract or reduce the remuneration. The supplementary performance is not deemed to have finally failed after the second unsuccessful attempt to remedy the defect, rather Tridata is free to choose the number of attempts to remedy the defect within the period set by the customer, insofar as this is reasonable for the customer.
6.4.7 A deadline set by the customer is not necessary if this is no longer reasonable for the customer. This is particularly the case if Tridata definitively and seriously refuses subsequent performance.
6.4.8 The customer can also claim damages instead of performance or reimbursement of expenses if Tridata is at fault.
6.4.9 The right to withdraw and the right to compensation for damages instead of the entire service exist only in the event of significant defects.
6.4.10 In the event of a justified withdrawal on the part of the customer, Tridata is entitled to demand adequate compensation for the use of the products drawn by the customer until the return.
6.4.11 If Tridata has maliciously concealed a defect or has taken on a guarantee for its quality, the statutory provisions on material and legal defects and their statute of limitations remain unaffected.

7 Severability clause

Should individual clauses of the above general and special terms and conditions and delivery terms be wholly or partially invalid, this does not affect the effectiveness of the remaining clauses. The contracting parties will agree on a replacement regulation that comes as close as possible to the economic purpose of the ineffective regulation. In case of doubt, the statutory regulations apply.

state: June 2020

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