General Terms and Conditions Oroox AG
§ 1 Scope of application
(1) The following provisions shall only apply to merchants, entrepreneurs and legal entities under public law and special assets under public law.
(2) The provisions in this contract shall apply exclusively. OROOX AG shall not accept any General Terms and Conditions of Business of the Client that contradict or deviate from these provisions unless OROOX AG has expressly consented to their validity in writing.
(3) The law of the Principality of Liechtenstein shall apply to the performance and execution of this contract.
§ 2 Subject matter of the contract
(1) Depending on the agreement in the quotation, OROOX AG shall develop an appropriate and economical solution for the requirements specified by the client in the form of a suitable Oroox application, via the steps of requirement analysis / system planning / organization / programming / documentation and instruction (Oroox development) or shall convert the client’s existing software to the new specifications specified in the quotation (software adaptation). The scope of Oroox development or adaptation (hereinafter referred to uniformly as software development) by OROOX AG results from this contract, the associated software offer and the specifications, which are integral parts of this contract.
(2) The subsequent delivery of improved versions of the created Oroox application requires a separate maintenance contract.
(3) The agreed service shall be provided by OROOX AG in accordance with the current state of software engineering and the principles of proper professional practice.
(4) Unless otherwise agreed in the offer or in the software development contract, the Client shall prepare a functional specification with OROOX AG for the preparation of the Oroox solution. OROOX AG shall support the client in this by providing advice.
(5) The software to be developed shall be made available for an indefinite period of time, but at least for the economic life of the program.
(6) Each party to the contract shall designate to the other a competent employee who can provide the information required for the execution of this contract and make or arrange for legally binding decisions.
(7) All changes to the scope of services made after conclusion of the contract shall only become part of the contract if they are agreed and included in the software offer. OROOX AG reserves the right to reasonably increase the remuneration agreed under § 7 in the event of agreed changes to the scope of services which lead to additional expenses for OROOX AG.
(8) Options for Oroox applications, etc., which the Client chooses at a later point in time, shall be included separately in the Software Offer.
(9) OROOX AG may use subcontractors.
(10) OROOX AG may freely choose the working hours required for the creation of the Software and accept other orders, provided that this does not impair the timely and careful fulfilment of the order.
(11) If OROOX AG becomes aware that the Client’s description of services or instructions are incorrect, incomplete, ambiguous or objectively unfeasible, it must immediately notify the Client in writing of this circumstance and of the consequences thereof. For his part, the client must immediately decide on any change to the service description or his instructions. The client must check special execution proposals of OROOX AG on the basis of his entrepreneurial expertise before confirming an order or before changing an order as well as during the creation or reworking period and must inform OROOX AG immediately of any reservations.
§ 3 Ownership, Scope of the Right of Use, Copyright
(1) Upon full payment of the agreed remuneration, the client acquires ownership of all contractually owed movable property. The free use of delivered goods prior to acceptance is permitted.
(2) The client is entitled to the non-exclusive, transferable and temporally unlimited use of the Oroox application provided to him. The customer may correct errors in the software after expiry of the warranty, as well as make other changes, but only within the scope of the intended contractual use. OROOX AG shall not be obliged to release the source format of the program for such bug fixes and changes if the source code transfer is not an agreed part of the service.
(3) OROOX AG shall remain the owner of all copyrights to the Oroox application handed over to the Client, including the respective associated material, even if the Client modifies it to the extent contractually permissible or combines it with its own programs or those of a third party. The Client shall affix a copyright notice referring to OROOX AG in the case of such changes or connections as well as in the case of the creation of program copies required for the contractual use.
§ 4 Obligations of the Client
(1) The Client undertakes to support the activities of OROOX AG required for the creation of software, in particular to provide OROOX AG upon request and in a timely manner with the information and aids necessary for the creation of software with regard to the system used by the Client, the system environment and the associated interfaces. The Customer shall provide free of charge all prerequisites in the area of its operating sphere that are necessary for the creation of the software. Work rooms must be accessible during business hours and the necessary work equipment must be available. Test data and other information must be made available in good time and employees commissioned with operating the software must be dispatched in good time.
(2) The Client shall immediately notify OROOX AG of any changes to the hardware configuration or the system software during the execution of the order.
(3) The Client shall assume the coordination obligation at the interfaces to the Client’s own services and to the services of third parties, including the entire project organization. OROOX AG shall only be responsible for the services listed in the Service Agreement.
(4) The client may neither change nor remove markings, property data and copyright notices of OROOX AG from the program. This also applies to all accompanying materials.
(5) If the client sells the software in whole or in part or relocates it by a local move or conversion, he shall notify OROOX AG accordingly.
§ 5 Delivery and Installation, Execution Period
(1) OROOX AG shall supply the Client with the program in coded and input-ready form for carrying out the agreed functional tests. After necessary adjustments have been made, the final program version shall be installed. The transfer of the source format requires a special agreement in the offer or in the software development contract.
(2) The Client shall provide OROOX AG with sufficient facilities for the use of the system and computing times for the purpose of software development, testing and installation. The required computing times shall be stated in the software offer and shall be fixed in advance.
(3) OROOX AG shall provide user documentation for the program created and, in the case of a separate agreement, development documentation in addition. The obligation to deliver the development documentation shall be noted separately in the offer.
(4) Execution periods shall be agreed for the offer (if necessary in a time and activity plan). These deadlines can also be related to self-contained milestones. In the case of longer production periods, at least one expected and one latest point in time shall be agreed for the handover and the bringing about of functional capability.
(5) OROOX AG shall inform the Principal of the progress of the production in accordance with the time schedule and shall grant the Principal access to corresponding documents and extracts thereof upon request.
(6) Compliance with the execution deadlines shall be subject to the timely and proper fulfillment of the Customer’s obligations and the clarification of all technical questions. The execution periods shall be reasonably extended if the Client is responsible for the hindrance or if the Client fails to cooperate or fails to cooperate in due time, unless OROOX AG is responsible for the delay.
(7) The execution periods shall be extended in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen impediments beyond the control of OROOX AG, insofar as such impediments demonstrably have a considerable influence on the creation of the software. This shall not apply if the hindrance or interruption is caused by a labour dispute for which OROOX AG is responsible through unlawful acts. The execution periods shall be extended in accordance with the duration of such measures and obstacles. OROOX AG shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. OROOX AG shall notify the client of the beginning and end of such hindrances as soon as possible.
(8) If OROOX AG is in default with the creation of the software, the Principal may only withdraw from the contract within the framework of the statutory provisions if OROOX AG is responsible for the delay in the creation of the software. In the event of minor breaches of duty, withdrawal from the contract shall be excluded. A change in the burden of proof to the disadvantage of the client is not associated with the above provisions.
(9) At the request of OROOX AG, the Principal shall be obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in the creation of the software or insist on the creation of the software.
(10) Unless otherwise agreed in the offer, OROOX AG shall instruct the personnel intended by the Client for the use of the programs to the extent necessary and in a timely manner for the application and use of the programs.
(11) OROOX AG shall – insofar as agreed in the offer – train the personnel intended for the use of the programs to the necessary extent and in a timely manner for the application and use of the programs.
(12) OROOX AG shall support the Client – insofar as agreed in the offer – by appropriately qualified personnel in the use of the programs and in remedying defects that are not covered by the warranty.
§ 6 Acceptance
(1) The software produced by OROOX AG shall be accepted by the client in accordance with the following provisions.
(2) The Client shall immediately declare acceptance in writing if OROOX AG’s performance complies with the performance description. Acceptance of the programs or self-contained parts of the programs shall be subject to successful functional testing. It shall be deemed to have been successfully performed if the programs meet the requirements agreed in the offer. Acceptance cannot be refused on the grounds of minor defects. Type, scope and duration of the functional test are specified in the offer or in the time and activity plan. Agreements can also be made about a special readiness of suitably qualified OROOX AG employees during the duration of the functional test. The functional test begins on the first working day after receipt of the notification of functional capability.
(3) If necessary, OROOX AG shall support the client during the functional test.
(4) The Principal shall be obliged to inform OROOX AG immediately in writing of any deviations from the requirements for the programs occurring during the functional test.
(5) If, during the functional tests, deviations from the requirements for the programs were detected and the programs are nevertheless accepted, the deviations must be recorded as defects by the client in the acceptance declaration.
(6) If the Customer does not participate in the functional test for any reason other than an immediate and justified complaint, the software shall be deemed accepted four weeks after installation.
§ 7 Remuneration, terms of payment, set-off, retention
(1) The Client shall pay OROOX AG a one-time license fee for the use of the Oroox application created and provided.
(2) The amount of the remuneration shall be included in the offer. The payment shall become due upon acceptance of the program or on payment dates agreed separately in the offer.
(3) The server access required for the delivery of the program shall be provided by the client. Oroox AG provides the server development resources during the development period.
(4) The statutory value added tax is not included in the prices of OROOX AG; it is shown separately in the invoice at the statutory rate on the day of invoicing.
(5) Consulting and training costs are not included in the price unless otherwise agreed.
(6) Payments to OROOX AG shall be made without deduction when due, but at the latest within 14 days of the date of invoicing. In the event of payment to the account of OROOX AG, the date on which the amount is credited to the account shall be decisive.
(7) The deduction of a discount requires a special written agreement.
(8) If the client is in default of payment, OROOX AG shall be entitled to demand default interest at a rate of six percentage points above the base interest rate p.a.. The assertion of higher interest rates or further damages shall not be excluded.
(9) The client shall only be entitled to set-off rights if his counterclaims have been legally established, are ready for decision, are undisputed or have been acknowledged by OROOX AG. The client shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 8 Warranty - Defects as to quality
(1) Insofar as a defect in the delivery item existed at the time of transfer of risk, OROOX AG shall be entitled, at its option, to remedy the defect or to deliver a defect-free item (subsequent performance).
(2) In the event of subsequent performance, OROOX AG shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, provided that these are not increased by the fact that the delivery item has been taken to a place other than the place of performance.
(3) In the event that subsequent performance fails, the Client may – without prejudice to any claims for damages pursuant to § 10 of these Terms and Conditions – at his discretion remedy the defect himself and demand reimbursement of the necessary expenses, reduce the remuneration or withdraw from the contract.
(4) The Client shall notify OROOX AG by e-mail of any defects. He shall determine the defect within reasonable bounds, isolate it and document it in writing. For this purpose he shall collect the necessary documents, e.g. on the stored data, the input and output data as well as interim and test results.
(5) The warranty period for the Client’s claims against OROOX AG due to a defect in the software shall be twelve months from the beginning of the statutory limitation period, but at the earliest from acceptance of the software in accordance with § 6 of these Terms and Conditions. This shall not apply in cases of injury to life, limb or health, in cases of intentional or grossly negligent breach of duty or in cases of culpable breach of a material contractual obligation by OROOX AG. This shall also not apply if OROOX AG fraudulently concealed the defect or assumed a guarantee for the quality of the software.
(6) Warranty claims shall not exist in the event of insignificant deviations from the agreed quality, in the event of insignificant impairment of usability or in the event of damage arising after the passing of risk as a result of faulty or negligent handling, unsuitable equipment or special influences not assumed under the contract, as well as in the event of non-reproducible software errors. If the customer or third parties make improper changes to the software, there shall also be no warranty claims for these and the resulting consequences.
(7) Insofar as liability is assumed for loss of data, liability shall be limited to the typical cost of recovery that would have been incurred if the Customer had carried out regular and dangerous data backups. No liability shall be accepted for damages incurred by the Customer as a result of the failure of the software and which could have been avoided if the processes processed with this software had been checked regularly and promptly.
(8) If OROOX AG proves that warranty defects did not exist, it shall be entitled to claim reimbursement of the costs for the services rendered due to the removal of the defect in accordance with the rates generally applied by it, provided that the Client was aware of the non-justification of the notice of defect or that this was not known to it due to gross negligence.
(9) For claims for damages and reimbursement of expenses against OROOX AG, § 10 of these Terms and Conditions shall apply. Any further claims of the Client against OROOX AG and its vicarious agents due to a material defect or claims other than those regulated in this § 8 are excluded.
§ 9 Industrial property rights and copyrights - defects of title
(1) Unless otherwise agreed, OROOX AG shall be obliged to provide the Software free of industrial property rights and copyrights of third parties (hereinafter referred to as “Property Rights”) only in the country of the place of delivery.
(2) If a third party asserts justified claims against the Principal due to the infringement of industrial property rights by software produced by OROOX AG and used in accordance with the contract, OROOX AG shall be liable to the Principal within the period specified in § 8 para. 5 of these Terms and Conditions as follows:
OROOX AG shall initially have the right, at its option, either to procure the necessary licenses with respect to the allegedly infringed rights or to make available to the Principal modified software or parts thereof which, in the event of exchange for the infringing software or part thereof, eliminate the accusation of infringement with respect to the software created. If this subsequent performance fails, the Customer shall be entitled to the statutory rights; in particular, the Customer shall be entitled, at its option, to remedy the defect of title itself and to demand reimbursement of the necessary expenses, to reduce the remuneration or, at its option, to withdraw from the contract. Otherwise, in the event of infringements of property rights, the provisions of § 8 of these Terms and Conditions shall apply mutatis mutandis. OROOX AG’s obligation to pay damages shall be governed by § 10 of these Terms and Conditions.
(3) The aforementioned obligations shall only exist for OROOX AG if the Client does not acknowledge an infringement and OROOX AG reserves the right to take all defensive and extrajudicial measures.
(4) Claims of the Client shall be excluded to the extent that the Client is responsible for the infringement of the IPR.
(5) Claims of the Client shall also be excluded if the infringement of the IPR is caused by special specifications of the Client, by an application not foreseeable by OROOX AG or by the Software being modified by the Client or being used together with products not supplied by OROOX AG.
(6) In the event of other defects in title, the provisions of § 8 and § 10 of these Terms and Conditions shall apply mutatis mutandis.
(7) Any further claims of the Client against OROOX AG and its vicarious agents due to a defect in title or claims other than those regulated in this § 9 shall be excluded.
§ 10 Other claims for damages
(1) Claims for damages and reimbursement of expenses by the Client against OROOX AG (hereinafter referred to as “Claims for Damages”), on whatever legal grounds, shall be excluded. This applies in particular to breach of duties arising from the contractual obligation and from tort.
(2) However, OROOX AG shall be liable in accordance with the statutory provisions for damages resulting from injury to life, limb or health.
(3) OROOX AG shall be liable in accordance with the statutory provisions for damages resulting from an intentional or grossly negligent breach of duty by OROOX AG or from an intentional or grossly negligent breach of duty by its representatives or vicarious agents. If OROOX AG is not accused of intentional breach of duty, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(4) OROOX AG shall be liable in accordance with the statutory provisions if it culpably violates an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) OROOX AG shall be liable in accordance with the statutory provisions if it fraudulently concealed a defect or assumed a guarantee for the quality of the software.
(6) The same shall apply if liability is mandatory pursuant to the provisions of the Product Liability Act.
(7) Insofar as the liability for damages towards OROOX AG is excluded or limited, this shall also apply with regard to the personal liability for damages of OROOX AG’s employees, workers, representatives and vicarious agents.
(8) A change in the burden of proof to the disadvantage of the Client is not associated with the above provisions.
§ 11 Confidentiality
The contracting parties undertake to keep all information about the contracting party received in this contractual relationship secret for an unlimited period. This applies not only to the operational organisational processes but also to all information that is designated as confidential or recognisable as trade and business secrets. The confidentiality obligation shall not apply if and insofar as the information has become generally known or has already been known to the other party without a breach of contract by the other party being the cause.
§ 12 General Provisions
(1) All agreements made between the client and OROOX AG for the purpose of executing this contract are set out in writing in this contract.
(2) The addenda to this contract and to the offer are part of this contract upon signing.
(3) The place of jurisdiction for all disputes arising from this contract shall be the place of business of OROOX AG if the Client is a merchant, a legal entity under public law or a special fund under public law. OROOX AG shall, however, also be entitled to sue the Client at the court having jurisdiction over the Client’s place of business.
(4) Should individual provisions of this contract not be legally effective or lose their legal validity due to a later circumstance or should a gap in this contract become apparent, the legal validity of the remaining provisions shall not be affected thereby.
(5) OROOX AG expressly points out that service and project discussions can be recorded for safety reasons, to increase service quality and to maintain the quality standard.