General Terms and Conditions
of the company amily GmbH
Sandstr. 33 | 80335 Munich
Alstertor 9 | 20095 Hamburg
(Valid from April 2023)
Section A
General part
These General Terms and Conditions of amily GmbH Munich, Sandstr. 33, 80335 Munich - hereinafter referred to as „amily“ - apply exclusively to business transactions between entrepreneurs within the meaning of § 12 BGB (German Civil Code).
The following GTC apply to the following types of contract:
- Software rental
- Project contracts
- Hosting
The following general provisions apply to all of the aforementioned contract types. If the contracting parties agree to services that cannot be allocated to one of the aforementioned contract types, these shall be categorised as legally independent, even if they are listed in the contractual agreements of the parties.
Scope of application
These terms and conditions apply between amily GmbH and the customer. They form the sole basis of business for all - including future - transactions, in the respective valid form, in addition to the contractual agreements. Any general terms and conditions of business or purchase of the customer shall not become part of the contractual relationship between the parties, not even by silence. Consequently, there is no need for amily to object to deviating terms and conditions of the Customer.
Liability
In all cases of contractual and non-contractual liability, amily shall pay damages and reimburse futile expenses exclusively in accordance with the following limits:
- in full in the event of intent, as well as in the absence of a quality for which amily has assumed a guarantee;
- in the event of gross negligence, only to the amount of the foreseeable damage that was to be prevented by the breached obligation;
- in other cases: only for breach of a material contractual obligation if this jeopardises the purpose of the contract, but always only in the amount of the foreseeable damage. Liability is limited to EUR 200,000.00 per case of damage, totalling a maximum of EUR 500,000.00.
- Furthermore, insofar as amily is insured against the damages incurred, within the scope of the insurance coverage and subject to the condition precedent of the insurance payment. amily maintains a business liability insurance policy for its operations with LVM Versicherung, Kolde-Ring 21, 48126 Münster and a property liability insurance policy with Hiscox SA, branch office for Germany, Arnulfstr. 31, 80636 Munich.
The above limitations of liability do not apply to liability for personal injury and liability under the Product Liability Act or in the event of initial incapacity.
amily reserves the right to plead contributory negligence, e.g. due to insufficient provision of cooperation services or organisational errors. amily is not liable in particular for breaches of secondary obligations, lack of economic success, loss of profit, indirect damages, consequential damages and damages from third-party claims against the customer.
amily shall only be liable for the loss of data and programmes and their recovery to the extent that this loss could not have been avoided by reasonable precautionary measures on the part of the customer, in particular by making daily backup copies of all data and programmes.
Liability for the absence of a warranted characteristic due to fraudulent intent and for personal injury remains unaffected.
amily shall only be liable for the recovery of data to the extent that the Customer has taken all customary and reasonable data backup precautions and the Customer ensures that the data can be reconstructed from data material held in machine-readable form with reasonable effort.
The Customer is obliged to notify amily immediately in writing of any damage within the meaning of the above liability provisions and to have it recorded by amily so that amily is informed as early as possible and can possibly minimise the damage together with the Customer.
Data protection
If the parties' contract affects data protection regulations in accordance with the EU GDPR or BDSG, the following shall apply:
Both contracting parties undertake to ensure that the persons involved in the project are aware of and comply with the provisions on data protection. Insofar as amily receives access to personal data relevant to data protection law within the scope of the contract, amily will conclude a contract with the Customer for commissioned data processing. The customer remains the master of the data. amily will cooperate in all necessary measures to comply with the provisions of the EU GDPR within the framework of the software rental and the project contract.
Furthermore, the customer is responsible for compliance with laws and regulations on data protection and data security.
Secrecy
The Customer shall label such documents, which amily is to secure to a greater than usual extent due to their special need for protection, in good time and provide them with measures for confidentiality protection.
In principle, amily does not wish to learn business secrets. However, if amily needs to learn business secrets from the Customer in order to be able to provide the agreed service, the Customer shall expressly declare such information to amily as a business secret and take measures to protect it.
amily in turn undertakes to treat such information as confidential.
Rights of use
The customer shall receive a right of use to the programmes and documentation supplied by amily within the scope of software maintenance for the intended use in accordance with the contractual conditions underlying the provision of the respective contractual software.
Contractual penalty
The customer and amily undertake to maintain strict confidentiality about the negotiated prices and conditions of the contract and not to pass them on to third parties, with the exception of the consultants working for them (tax consultants, lawyers).
A contractual penalty of €1,000 is agreed for each case of culpable breach of the confidentiality agreement, up to a maximum of 5% of the order amount. The contractual penalty agreement does not affect the assertion of further damages.
Duty to co-operate
The customer shall provide all necessary co-operation. This includes, in particular, the provision of personnel, computers and premises that may be required. The provider shall take the customer's economic efficiency into account when utilising the resources.
The customer is obliged to check the software for proper functioning immediately upon receipt. The Customer shall immediately notify amily in writing of any defects in the goods, if possible, and, if necessary, make up the written notification at amily's request.
If amily is required to work on the software in order to remedy defects, the Customer shall provide such personnel with unhindered access to the premises and the goods themselves, provide the necessary documents, e.g. also fault logs or logbooks, and provide suitable rooms, equipment, computing time and personnel for information in good time and to an appropriate extent.
The customer undertakes to carry out and create data backups on a regular basis. The data backup shall include the entire software system and the regular backup of master and transaction data and shall be carried out in accordance with the principles of proper data processing.
The customer shall have remote access set up via the Internet at his own expense and provide the provider with the dial-in data assigned to the customer. Only a VPN connection from router to router shall be used for this purpose. The provider is only obliged to use another remote connection requested by the customer if the customer pays for the additional costs incurred as a result. In this case, the provider will inform the customer of the expected additional costs.
The provider uses remote access to carry out remote measures such as updates, installations and other necessary support and maintenance measures.
Remuneration
The customer shall pay the remuneration specified in the order confirmation/licence certificate from amily.
Additional services provided by amily (e.g. requests for additions and changes by the Customer) shall be remunerated by the Customer to amily on a time basis - unless otherwise agreed - in accordance with the applicable price list.
In principle, the place of performance is the registered office of amily GmbH. Any necessary travel by amily employees to the Customer or to other locations/places requested by the Customer shall be remunerated separately by the Customer both in terms of time spent and travelling costs and expenses. Travelling times of amily shall be reimbursed by the customer. The necessity of individual journeys shall be agreed between the contracting parties.
Maturity
Unless otherwise agreed, the monthly fee for software rental is charged for 3 months in advance and is due upon receipt of the invoice.
Unless otherwise agreed, in the case of project contracts 50% of the remuneration shall be due for payment upon conclusion of the contract and 50% upon acceptance/installation.
amily reserves the right to adjust the monthly fee with a notice period of three months in the event of a change in circumstances.
The amount of the monthly software rental is specified in the written agreement/licence certificate.
In the event of an increase, the customer is entitled to terminate the contract by giving one month's notice to the end of the month before the fee increase comes into effect.
The amounts to be shown by amily are exclusive of the applicable statutory value added tax. All bank charges arising from payments shall be borne by the customer.
Authorisation to reproduce / Authorisation to modify / Source code
The copying of programmes provided in machine-readable or printed form is only permitted to the extent of the intended use of the programmes. This includes, in particular, loading from the original data carrier, installing on hard disks, loading onto main memory, working memory and intermediate storage such as caches, insofar as this is technically associated with use.
A copy may be made on a data carrier for backup purposes.
The customer is not authorised to make any changes to the programme codes. The provisions of §§ 69c, 69d UrhG remain unaffected.
Decompilation of the programmes and programme adaptations by the customer is only permitted if the provider has not readily provided the information required to establish interoperability despite being requested to do so within a reasonable period of time.
The source code is the property of the provider and is subject to copyright. The source code will not be handed over.
Installation requirements
Insofar as this is not the subject of the parties' contract, the customer shall provide the equipment necessary for the installation or operation of the software to be created in good time at its own expense, in particular the necessary operating system, the necessary database, telecommunications and service programmes (tools) in the current or necessary version, as well as the necessary other software. The customer shall provide the necessary rights of use.
The customer is also responsible for the maintenance, in particular the updating of the software provided by the customer.
Exemption
amily shall indemnify the Customer against all claims of third parties asserted against the Customer due to an infringement of property rights to the programmes provided in their contractual version. amily shall also reimburse the Customer for the necessary costs incurred by the Customer for the defence against the alleged claims.
amily is entitled to carry out necessary software modifications at the Customer's premises at its own expense due to the assertion of third-party property rights. The changes may not impair the contractual scope of performance of the programmes and programme adaptations.
Travelling costs and expenses
If on-site appointments at the customer's premises are necessary for the provision of services, these shall only be made with the customer's authorisation. Unless otherwise agreed, travelling costs and expenses for necessary and pre-arranged on-site appointments shall be borne by the customer to a reasonable extent and shall be invoiced separately at the end of the month. Accommodation costs for a 3/4 star hotel, hire or company vehicles, train journeys and 2nd class flights as well as the assumption of accommodation costs for a stay of more than 4 hours or appointments before 11 a.m. shall be deemed reasonable.
Miscellaneous
These above and following General Terms and Conditions conclusively reflect the agreements between the parties. Deviating or supplementary terms and conditions as well as amendments to these terms and conditions, including this written form clause, shall only apply if they are agreed in writing.
The Customer is not entitled to exercise a right of retention against amily due to another claim not arising from this contract. The customer may only offset such claims against amily that are undisputed or have been recognised by declaratory judgement.
The invalidity of one or more provisions of this contract shall not affect the validity of the remainder of the contract. The contracting parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. Until such a provision is found, the invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in the event of a loophole in the contract requiring regulation. The transfer of rights and obligations arising from this contract to a third party requires the consent of amily.
The place of fulfilment for all services arising from the contract between the parties, including services provided by amily's suppliers, is amily's registered office. The exclusive place of jurisdiction for all disputes arising from this contractual relationship is the registered office of amily in Munich.
Section B
Software rental agreements
Subject matter of the contract
amily leases standard software of its own production to the customer exclusively under the following conditions.
The contracts between the contracting parties are rental contracts. The mutual obligations arise exclusively from the confidential agreement and the following provisions, which are not affected by the customer's financing agreements with third parties. In particular, the customer's payment obligation remains in full.
The properties and conditions of use of the goods are set out in the offer provided to the customer prior to the contract or in the customer's technical approvals and specifications. Further details regarding the properties and conditions of use can be found in the documentation. Properties within the meaning of § 536 II BGB are only warranted within the meaning of these provisions if such a warranty is given in writing by amily.
The making of copies of the documentation and the software as well as the technical descriptions is only permitted within the scope of the intended use of the software. Unless otherwise agreed, the software shall be installed by the customer, who may also use third parties for this purpose. amily is prepared to instruct the Customer in the function and operation of the goods for a fee in accordance with amily's current price list. This instruction shall be agreed separately.
Release
The customer undertakes to install new versions of the software supplied by amily within the scope of the contractual agreement without delay, at the latest 4 weeks after receipt of the new version.
In this respect, the Customer is obliged to install and use the latest version, insofar as this is reasonable for the Customer, unless it contains errors that are not insignificant and unless amily rectifies these errors at short notice. Otherwise, the Customer is entitled to reset the contractual software to an earlier version and to use it in this version until amily demonstrably provides an essentially error-free, new version.
Licences
A licence is a version of a software module installed on a workstation. Licences are issued specifically for the customer and are not transferable. By default, only simple licences are rented for a limited period of time in accordance with the terms of the rental agreement. Extensions to the licences, such as the number of users, clients or server licences, require a separate agreement.
Unless otherwise agreed, the customer shall receive user licences for single use for the respective user. The number and scope of the licences are specified in the current licence certificate. The simultaneous use of a user licence by several users is not permitted.
Licence certificate
Upon conclusion of the contract, the customer receives a licence certificate stating the number of licences and the licence fee. If the licence agreement is extended by the addition of further modules, the customer shall be sent an updated licence certificate, which shall then form the basis for the monthly licence fee. The licence certificate shall be deemed approved if the customer does not immediately object to the licence certificate (§ 362 HGB).
Guarantee
amily shall be liable for such defects that more than insignificantly reduce or cancel the suitability of the goods for normal or contractually stipulated use or more than insignificantly impair the value of the goods.
amily is not liable for installation or operating errors made by the Customer or third parties or for inadequate data backup on the part of the Customer. If the Customer becomes aware of a defect, the Customer shall notify amily immediately in writing, if possible subsequently in writing, and if possible also indicate how the defect manifests itself and has an effect, and under what circumstances it occurs.
If the Customer cannot demonstrate the defect to amily during error analysis work by amily, i.e. if the error cannot be reproduced at the moment, the Customer shall give amily the opportunity to observe the software itself. As far as possible, amily will observe the software at the Customer's premises, but the Customer will, if necessary, tolerate the use of software for the purpose of logging, even if the runtime behaviour of the overall system may suffer somewhat or even more severely as a result.
Upon notification of a defect by the Customer, amily shall use its best endeavours to analyse and then rectify the defect. amily shall be entitled to rectify the defect in the event of a notification of a defect by providing an alternative solution, insofar as this is reasonable for the Customer, i.e. in particular does not hinder or impede the Customer's work processes.
The Customer's warranty claims shall lapse if the Customer himself or through third parties has made changes to the software or the databases without the express written consent of amily. This does not apply insofar as the customer can demonstrate and prove that the changes are not related to the errors or defects that have occurred and do not significantly impede the analysis and rectification of defects.
The warranty obligation on the part of amily shall also lapse if the customer uses the goods in an environment other than the approved environment and with accessories other than those approved. The possibilities of exoneration according to the above clause shall also apply analogously here.
The obligation of amily to remedy defects refers to the latest version.
If the Customer still has an older version of the contractual software installed, amily may refuse to provide the service in accordance with these terms and conditions or, at its discretion or at the discretion of the Customer, provide the maintenance service in return for payment of the associated additional costs, unless the Customer cannot reasonably be expected to accept the new version.
Duration of the contract / cancellation
Unless otherwise agreed between the parties, the contractual relationship is concluded for an indefinite period. The cancellation period for both parties is 6 months to the end of the year. The right to extraordinary cancellation for good cause remains unaffected. Cancellation must be in writing to be effective.
Good cause exists in particular if the customer is in arrears with two consecutive instalments of the monthly licence fee or a total of three monthly instalments of the licence fee.
Return
Upon termination of the contractual relationship, the Customer shall return the programme, including manuals and documentation, to amily. Any copies of the programme provided must be completely and permanently deleted.
Instead of returning the programme, amily may also demand the deletion of the programme provided and the destruction of the manuals and documentation provided. At amily's request, the customer is obliged to confirm the deletion of the programmes by way of an affidavit.
Any use of the software after termination of the contractual relationship is not permitted and shall result in the payment of compensation for use in the amount of the monthly licence fee. The customer is entitled to provide evidence of lower damages.
Section C
Agreements for project contracts
Subject matter of the contract
At the Customer's request, amily shall adapt the amily software to the Customer's requirements (customising). Only the services offered by amily in writing shall be deemed to be the content of the service.
The contracting parties shall agree on deadlines in writing; only then shall they be binding. The binding nature of any completion dates shall lapse if the customer does not fulfil its obligations to cooperate in full or on time.
Rights of use and exploitation
Unless otherwise expressly agreed in writing, the Customer shall generally receive a non-exclusive right of use to the customisation services provided by amily, insofar as these are to be regarded as an independent work within the meaning of copyright law. Otherwise, only simple rights of use limited to the term of the contract shall be acquired.
Extensions to the licences, such as the number of installations, clients or server licences, require a separate agreement. Unless otherwise agreed, the customer shall receive the agreed number of users and server licences for single use. A transfer of the licences to third parties against payment or free of charge is only possible with the approval of amily.
Change Request
The Customer is entitled to submit a change request to amily regarding the services owed by amily during the execution of this contract (hereinafter „Change Request“). This Change Request must be detailed in such a way that it enables the other contractual partner to make the necessary evaluation and assessment in a timely manner. The remuneration for „Change Requests“ shall be in accordance with amily's price list.
If the agreement of a „change request“ has an impact on the agreed schedule, this must be stipulated separately as part of the agreement of the „change request“.
In this case, any agreed deadlines shall be extended by the period agreed in the „Change Request“.
In the event of a delay due to a lack of co-operation on the part of the Customer or a third party or other circumstances for which amily is not responsible, amily shall inform the Customer of the delay immediately after becoming aware of the circumstances and inform the Customer of the period of the presumed delay. In this case, the delivery date shall also be extended by the period of the delay.
Acceptance
amily will notify the customer in writing of the successful installation of the programme adaptations. Upon receipt of the notification, a 4-week test phase will commence during which the customer will test the installation and contractual function of the programme adaptations. amily will instruct the customer in the use of the programme adaptations during the installation and support the customer during the tests.
The following error classes are defined for the assessment of software errors occurring in the functional test:
Error class 1: Errors that prevent operation (such as system crashes with computer shutdown, destruction of data content, inconsistent database), which lead to failure of the computer system and make it impossible to use the software.
Error class 2: Errors that prevent operation but do not prevent the use of the software (e.g. short-term failures without data loss, incorrect results, missing functions that are not absolutely necessary for normal operation or can be replaced by other functions).
Error class 3: Cosmetic errors (e.g. incorrect texts in reports and screen masks, insignificant deviations in results due to rounding, etc.).
Faults of fault classes 2 and 3 that occur briefly during the function test and are rectified do not affect the duration of the function test.
If the software still contains errors of error class 3 at the time of acceptance, these are documented in the acceptance report.
The defects shall be rectified by amily within a reasonable period of time, which may not exceed 6 weeks. A refusal of acceptance by the customer due to errors of error class 3 is excluded. If the customer refuses acceptance without justification, acceptance shall be deemed to have been granted 20 days after the end of the functional test.
The Customer shall immediately notify amily in writing of any defects, malfunctions or other deviations from the contractual scope of services („Errors“) recognised during the test phase.
amily is obliged to eliminate reported errors of error class 2 within the test phase. If the error of error class 2 is only reported in the last 2 weeks of the test phase, amily can rectify the error within 2 weeks from the day the error was reported.
If the rectification of defects fails within this period and reasonable workarounds are not demonstrated or if the rectification of defects is rejected altogether, the customer may, at his discretion, rectify the defects himself at the provider's expense, withdraw from the contract, reduce the remuneration or claim damages for non-performance. In the case of insignificant defects, the right to cancellation and compensation for non-fulfilment shall not apply.
If the functional test shows that the installation and function of the programme adaptations are in accordance with the contract and free of errors, the customer shall declare acceptance in writing immediately after the end of the test phase. After acceptance, the customer shall be entitled to warranty rights. Partial or interim acceptances shall not take place.
Guarantee
The warranty period shall commence upon acceptance. The warranty period shall be twelve months unless the contracting parties expressly agree otherwise.
amily will begin to rectify defects on the basis of reported defects, which must be reported in writing immediately and, if possible, stating the detailed circumstances of the occurrence and the software and hardware environment as well as the effects, and will carry out this rectification within a reasonable period of time.
A defect shall also be deemed to have been remedied if the defect is eliminated by a reasonable workaround.
amily will provide the customer with an error reporting form and procedure in good time, which the customer undertakes to use.
The Customer shall support amily in the identification and rectification of the defect and shall immediately grant access to the documents from which the detailed circumstances of the occurrence of the defect are derived.
If amily does not succeed in remedying the defect within a reasonable period of time not exceeding 100 calendar days and if it also fails within a further reasonable grace period set by the Customer, the Customer shall be entitled to the statutory warranty rights.
Data transfer
In the case of the agreed data transfer, amily assumes no liability for the correctness of the data content. Data will only be transferred if the data fields of the imported data are also available in the amily software. There is no general entitlement to the transfer of data from legacy systems.
Cancellation of the warranty
The customer's warranty claims can no longer be asserted by the customer if the customer has made changes to the software or had them made by third parties without the prior written consent of amily, unless the customer proves that these changes do not or only insignificantly complicate the warranty work, in particular the analysis and elimination work by amily, and that the reported defects are not attributable to this change.
Costs of unjustified complaints
If reported defects are not attributable to amily, the Customer shall reimburse amily for the time spent and the costs incurred in accordance with the price list.
Section D
Hosting
Hosting by amily
Insofar as the software, parts of the software and/or data of the Customer are stored on computers of amily or computer centres commissioned by amily, amily guarantees the availability of data and software. amily further undertakes to make the software and/or data accessible to the Customer via the Internet.
amily continuously monitors the connection of the server to the transfer point to the public network (WAN). No liability is accepted for interruptions to the data connection that are beyond amily's control.
Data hosting
Insofar as amily performs data hosting, amily undertakes to maintain strict confidentiality with regard to all confidential processes that come to its knowledge during the preparation, execution and fulfilment of the contract.
The customer has the right to demand proof from amily at any time that data has been backed up adequately and in accordance with the contract. In any case, the customer remains the sole authorised owner of the data and can therefore demand the return of individual or all data at any time, without amily having a right of retention. The data shall be returned by handing over a data carrier or electronic transmission via a data network. The customer is not entitled to receive the software suitable for use of the data.
amily is obliged to take precautions against unauthorised access to the data by third parties. For this purpose, amily regularly performs backups, checks the Customer's data and installs firewalls, virus scanners, etc. Access data used for protected access to the data must not be made accessible to unauthorised third parties. The customer shall be liable for any damage resulting from the culpable disclosure of access data by the customer.
