General Terms and Conditions (T&Cs)
carmasec Sales T&Cs – As of October 1, 2024
1. General Provisions
1.1 The subject matter of the contract is defined by the signed offer document, these General Terms and Conditions, and, if applicable, any other documents referenced in the offer document.
1.2 Any deviations must be made in writing.
1.3 Any guarantee for specific properties (quality) must also be made in writing.
1.4 The customer’s general terms and conditions shall not form part of the contract, even if they are attached to requests for proposals, orders, acceptances, etc., and are not explicitly rejected.
1.5 Unless otherwise agreed, the contract is concluded upon carmasec’s receipt of the signed offer document.
1.6 Delivery and service dates or deadlines are only binding if explicitly accepted as such by carmasec.
2. carmasec’s Services
2.1 The agreed services are listed in the offer document.
2.2 carmasec provides agreed consulting and support services as services for the customer. Such services are provided exclusively to support the customer in a project that the customer carries out under their sole responsibility. carmasec assumes no responsibility for a specific outcome in connection with the provision of services.
2.3 If work services are agreed upon and involve software development, the scope of services includes one copy of the software in object code and an operating manual (user documentation or online help).
2.4 carmasec is entitled to provide the services by subcontracting to third parties (subcontractors). carmasec is liable for the performance of subcontractors as for its own actions.
3. Special Provisions for Work Services
3.1 carmasec is responsible for achieving a specific outcome only if:
the relevant criteria for this, regarding scope and effect, were specifically and conclusively defined and agreed upon at the time of contract conclusion, and
the customer fulfills their cooperation obligations in a timely and proper manner; unless these have no impact on the service provision.
3.2 carmasec is obliged to notify the customer of its readiness for acceptance of works at least in text form. Unless otherwise agreed, the customer will begin acceptance no later than five (5) working days after notification of readiness for acceptance and will carry it out together with carmasec. The work services are deemed accepted if the customer uses the services provided by carmasec as intended, or if the customer does not notify carmasec in writing of defects of error class 1 within four (4) weeks from the date on which carmasec’s notification of its readiness for acceptance was received by the customer.
Error Class 1: the intended use is impossible or severely restricted, e.g., due to malfunctions, incorrect work results, or excessively long response times;
Error Class 2: the intended use is not impossible or severely restricted, e.g., due to malfunctions, incorrect work results, or excessively long response times, but the restriction of use is nevertheless not insignificant;
Error Class 3: all errors that cannot be assigned to Error Classes 1 and 2
3.3 The final assignment of these errors to one of the above error classes shall be mutually agreed upon by the parties. Section 640 paragraph (1) sentence 2 of the German Civil Code (BGB) remains unaffected.
3.4 carmasec may provide partial deliveries or partial services for acceptance (partial acceptance). This includes self-contained phases for the fulfillment of specified services, self-contained and thus functional parts, self-contained documents or parts of documents.
4. Customer’s Cooperation and Other Obligations
4.1 The customer ensures that all necessary provisions and cooperation services are provided in a timely manner, to the required extent, and free of charge for carmasec.
4.2 The customer provides carmasec with all necessary support during service provision. This support includes, among other things, the customer making the necessary information available in a timely manner.
4.3 Further cooperation obligations are regulated in the offer document.
4.4 If the customer fails to provide a required cooperation service, or fails to do so in a timely manner or in the agreed way, the resulting consequences (e.g., delays, additional expenses) shall be borne by the customer.
4.5 The customer indemnifies carmasec against all third-party claims based on an unlawful use of the copyright-protected services by the customer or occurring with their approval, or arising from data protection or other legal disputes related to the use of the service. The customer shall inform carmasec without delay if third parties assert infringement of their rights against them.
4.6 The customer must report defects with a comprehensible description of the error symptoms in text form.
5. Rights of Use
5.1 For all services provided by carmasec that are protected by copyright, the customer receives a non-exclusive, perpetual, and non-transferable right of use for their own internal purposes.
5.2 If the customer is contractually granted an exclusive right of use and the contract is terminated by the customer before the complete completion of the work service for reasons for which carmasec is not responsible, the customer shall only receive a simple right of use for the delivered work results.
6. Retention of Title
carmasec retains ownership and rights to be granted until full payment of the owed remuneration. Prior to this, rights are always provisionally granted and freely revocable by carmasec.
7. Remuneration and Due Date
All prices are net prices plus legally applicable taxes and duties.
8. Material and Legal Defects in Work Services
8.1 Any defects in work services must be reported to carmasec by the customer in writing. If the services were defective at the time of transfer of risk, carmasec shall, at its discretion, remedy these defects or produce a new work (“subsequent performance”); enabling a reasonable workaround for the defect constitutes sufficient subsequent performance. If carmasec fails to provide subsequent performance twice within a reasonable grace period to be set by the customer in writing, the customer may assert their claims according to statutory regulations, whereby the customer’s right to self-remedy under Section 637 BGB is excluded. Insignificant defects do not entitle the customer to withdraw from the contract; a claim for reduction by the customer remains unaffected.
8.2 Liability for material defects expires for services that the customer modifies or otherwise interferes with, unless the customer proves that the interference is not the cause of the defect.
8.3 The provisions in Section 9 apply to claims for damages.
9. Liability
9.1 In cases of intent or gross negligence, as well as in the absence of a guaranteed property, carmasec’s liability is unlimited in amount.
9.2 In cases of slight negligence, carmasec’s liability for injury to life, body, and health is unlimited.
9.3 In all other cases, carmasec is liable for slight negligence only if a duty is violated whose fulfillment is essential for the proper execution of the contract, whose violation jeopardizes the achievement of the contract’s purpose, and on whose observance the customer can regularly rely (cardinal duty). In the event of a breach of a cardinal duty, liability is limited to the foreseeable damage typical for the contract. This also applies to lost profits and unrealized savings.
9.4 For the loss of data, carmasec is liable in cases of slight negligence on carmasec’s part only if the customer has performed adequate data backups.
9.5 Liability under the Product Liability Act remains unaffected.
9.6 Liability for all other damages is excluded.
10. Contract Term and Termination for Service Contracts
If no specific contract term is provided in the offer document, the contract may be terminated with three months’ notice. Termination must be in text form (e.g., by letter or email).
11. Confidentiality
The parties are mutually obliged, for an unlimited period, to maintain confidentiality regarding business and trade secrets, as well as information designated as confidential, which becomes known in connection with the execution of the contract. Disclosure to third parties not involved in the execution of the order may only take place with the prior written consent of the other party.
12. Miscellaneous
12.1 Should provisions of the contract be or become invalid, or should a loophole be found in the contract, the validity of the remaining provisions shall not be affected. An appropriate regulation shall replace the invalid provisions or fill the loophole, which, as far as possible, comes closest to what the parties would presumably have intended according to the meaning and purpose of the contract.
12.2 The agreed place of jurisdiction is Essen.
12.3 German law applies.