§ GENERAL TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS Aident Gmbh

A. General Provisions

§ 1 General – Scope

These General Terms and Conditions (“GTC”) apply to all offers and contracts between Aident GmbH (“Aident,” “us,” “we”) and our customer concerning software and/or services. Aident and the customer are hereinafter collectively referred to as “the Parties.”
These GTC exclusively apply only to entrepreneurs within the meaning of Section 310(1) in conjunction with Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law, or special funds under public law.
Upon conclusion of the first contract in which these GTC are incorporated, the customer simultaneously acknowledges their validity for all future contracts concluded with us (including verbal or email-based agreements) without requiring us to point them out again in each individual case, unless the contracting Parties expressly agree otherwise in writing. The current version of the GTC is available for download on the website of Aident GmbH (www.aident.de) and will be provided to the customer upon request.
The business relationship between us and the customer is governed exclusively by our GTC. Deviating, conflicting, or supplementary terms and conditions of the customer will not become part of the contract unless we expressly agree to them in writing. This also applies if we perform services for the customer in full knowledge of the customer’s terms and conditions without reservation. Individual agreements made with the customer in a specific case (including side agreements, supplements, and amendments) shall take precedence over these GTC. The content of such individual agreements is determined by a written contract or our written confirmation, whereby text form is sufficient.
References to the validity of statutory provisions serve only for clarification. Even without such clarification, statutory provisions shall apply insofar as they are not modified or expressly excluded in the contract or in these GTC.
The content of the contract is otherwise governed by the written agreements made.
“Goods” within the meaning of these GTC includes all contractual items to be provided, including software, even if supplied in intangible form (e.g., provided electronically).
References to legal requirements, technical standards, attachments, or other documents relate, unless expressly stated otherwise, to the respective valid version. References to the contract include its attachments.
Unless otherwise stipulated in the contractual agreements or in the Special Conditions contained in Sections B to D, Section A shall apply to all contracts with the customer.

§ 2 Offer and Conclusion of Contract, Cost Information, Cost Estimates, Subject Matter of the Contract

Our offers are non-binding.
If the customer’s order is to be regarded as an offer, we may accept it within 10 business days. A contract is only formed once we declare acceptance in text form or by rendering the service or delivering to the customer. Silence in response to the customer’s offer does not constitute acceptance. If we accept the customer’s offer and confirm it in text form (email is sufficient), the customer must promptly review the information regarding the scope of services. If the customer does not object to the confirmation of the order within three business days, the specifications and prices contained therein shall be deemed approved.
Documents such as cost estimates, service descriptions, samples, or other documentation (with the exception of pure advertising materials) remain our property and may not be made accessible to third parties. If no contract is concluded, such documents must be returned to us immediately.
The subject matter of the contract arises from the respective contract concluded with the customer.
We are entitled to use suitable subcontractors or affiliated companies (in accordance with Sections 15 et seq. of the German Stock Corporation Act, AktG, “Third Parties”) to fulfill our contractual obligations. To the extent necessary for the proper performance of contractual obligations, these Third Parties may be granted access to the customer’s documents, information, and data, in compliance with applicable data protection regulations. Even when using Third Parties, we remain responsible for performing and, if promised, successfully delivering the service.
We regularly review and update information in brochures, service descriptions, or other documents pertaining to our services. Despite due care, such information may have changed in the meantime. Therefore, we cannot accept any liability or guarantee for their ongoing timeliness, accuracy, completeness, or usability. The same applies to data we make available from external (e.g., public) databases over which we have no influence regarding their selection, quality, structure, or maintenance.

§ 3 Service Times, Reservation of Self-Supply, Obstacles to Performance, Place of Performance, Force Majeure, Transfer of Risk

In fulfilling our contractual obligations, we may procure any necessary hardware, standard software, and potentially services from Third Parties. Our obligation to perform is subject to timely and proper fulfillment by these Third Parties.
Unless expressly agreed otherwise in the contract, any deadlines and dates are non-binding.
Our duty to perform within certain deadlines or by certain dates—regardless of whether these are contractually agreed—requires the customer to have performed all services and cooperation duties incumbent on them. If the customer fails to fulfill these obligations, the deadlines and dates shall be extended to a reasonable extent. The same applies if the customer is in arrears with a payment, without requiring a statement from us. In such cases, we are entitled to a right of retention and a right to refuse performance.
Delays or failures in the performance of contractual obligations, whether on our part or on the customer’s part, are not attributable to the respective Party if and insofar as they are due to events or circumstances beyond that Party’s control or not caused by that Party, or that occur without any fault on its part, and if such events or circumstances demonstrably have a material impact on the completion or delivery of the subject matter. Such events include those caused by natural occurrences, actions of a government authority, fire, flood, explosions, natural disasters, war, labor disputes (including lockouts and strikes), epidemics or pandemics or diseases entailing quarantine or other containment measures, official or judicial orders or directives, warnings by authorities, disruptions in transport or operations, shortages of materials or energy, or operational disruptions at our own facilities or those of our suppliers that prevent us from delivering the subject matter of the contract by the agreed delivery date or within the agreed period, through no fault of our own (“Force Majeure”). In any event, such an occurrence must be external, unrelated to the business operations of the Parties, and outside their sphere of influence, and it must be unavoidable even if all reasonably expected precautions were taken. If a Party invokes such an event, the mutual contractual obligations shall be temporarily suspended. During such delay or non-performance, the other Party must be notified in writing without delay (including a description of the cause or the circumstances, an estimate of the duration of the delay, and measures taken to resume performance and any interim allocation plans during the period of delay). Once the obstacle to performance ceases, the performance due date shall be postponed by the duration of the disruption. If such disruptions result in a performance delay of more than four months, either the customer or we may withdraw from the contract. Other rights of rescission remain unaffected. At our request, the customer shall declare within a reasonable period of time whether they intend to exercise their right of rescission.
If negotiations between us and the customer take place regarding a change in performance (e.g., change requests) or supplemental offers, the performance period (including any contractually agreed period) shall be extended until the negotiations are concluded.
If we have contractually agreed on service days or specific services, these may be used during our usual business hours.
Unless otherwise contractually agreed, our place of performance is our place of business in Erfurt.
Irrespective of who bears the transport costs, the risk of accidental loss or deterioration passes to the customer upon delivery to the person or organization entrusted with shipment - even if we carry out the shipment ourselves. At the customer’s request, we will insure the delivery at the customer’s expense against transport risks.
Unless otherwise agreed, we may also make deliverables available by electronic transmission or by providing a download option. In the case of electronic transmission, the risk of accidental loss passes to the customer once it is received by the telecommunications service provider engaged by us. In the case of providing a download option, the risk passes once availability is announced to the customer.

§ 4 General Duties of Cooperation on the Part of the Customer, Consequences in the Event of the Customer’s Breach of Cooperation Obligations

The following cooperation obligations of the customer exist regardless of the type of services to be provided by us. Cooperation obligations constitute primary obligations and are a key basis for the services and contractual agreements between the customer and us.

The customer must provide us with the necessary information, render its own services in due time, and make necessary decisions in a timely manner.
The customer shall ensure that all cooperation services required for the agreed service are provided in a timely, complete, and cost-free manner to us. All services to be provided by the customer are prerequisites for our contractual performance.
The customer is obligated to provide complete information about the intended general purpose and scope of the IT systems as well as any special requirements and situations that may be relevant as a system environment.
Each Party shall appoint at least one qualified contact person prior to commencement of the service, who will be available to the other Party for information and who can make or procure decisions without delay. Any changes to contact details must be communicated by the Parties without delay.
Contractual IT systems may only be operated by employees who have been adequately trained for their tasks.
During training sessions, the customer shall ensure that the individuals to be trained at least have basic IT knowledge.
When we perform work on the customer’s premises, the customer maintains responsibility and supervision. Work via remote data transmission (e.g., remote maintenance, software updates) shall be supervised by the customer. The customer shall document these activities.
The customer is responsible for backing up its data regularly such that complete restoration is possible without undue delay in the event of data loss or data access issues, unless we are responsible for hosting the relevant data.
The customer is responsible for entering and maintaining the data and information necessary to use our services and must check the data and information for viruses or other harmful components before entering them, using state-of-the-art security programs and access authorization concepts (in particular, user ID/login credentials and passwords that must be kept secret).
In preparation for software updates, the customer shall verify the conformity of their IT system environment, prepare operations for any resulting restrictions (e.g., performance issues, downtime), and in particular make arrangements to guard against system failures and their consequences (e.g., data loss, restrictions on business or production processes, etc.).
Where required, the customer shall ensure our access to its IT systems. For hotline services, remote access is a mandatory requirement. Additionally, the customer shall provide suitable office space and equipment for our service performance if necessary.
The customer must immediately notify us in writing of any changes in location, modifications, or alterations to the contractual IT system and the software installed on it, provided these changes are not carried out by us or by a partner appointed by us.
Immediately after any significant change to the IT system, installation, defect rectification, maintenance, or any other intervention, the customer shall verify that their data backup routines (completeness and restorability) still function properly and record the results in writing.
Even after the end of the contract, the customer remains obligated to keep abreast of the current operational requirements for its software products, including lifecycle or maintenance/support deadlines as well as retention or reactivation periods and conditions, as set forth by the software manufacturer; we cannot assume any responsibility in this regard and are under no obligation to provide clarification or advice without a separate agreement.
If we provide our services electronically, once the customer has been notified, the customer is obliged to download them accordingly.
If the customer does not fulfill their cooperation duties completely, timely, or correctly in any other way, our performance obligations are suspended until such cooperation duties are fulfilled. In such cases, we may also request an appropriate adjustment of the contractual terms affected by the failure to cooperate, including the allocation of resources (e.g., rescheduling the resources provided), expenses (e.g., due to unutilized resources), and prices. Further claims remain unaffected.

§ 5 Prices, Payment Terms, Default, Legal Consequences, Retention of Title, Assignment

All prices are quoted in euros plus any shipping and transport costs and plus statutory value-added tax at the time of performance.
Unless otherwise stated in the contract, invoices are payable immediately without deduction.
Unless agreed otherwise, payment dates for the delivery of software and hardware shall be determined by the delivery progress. Software licenses are deemed delivered upon activation/release/authorization on behalf of the customer.
Where software customization and other services are provided, the remuneration will, in case of doubt, be calculated based on the time spent. We will invoice the incurred time upon completion of the service, on the basis of the service order or an internal performance record. Neither acceptance, approval, nor handover is a condition for the invoice becoming due.
We may request an installment payment amounting to the value of the services we have rendered in accordance with the agreement. Except where required by law, we are not obliged to issue a final or closing invoice if and insofar as our services have each been duly invoiced.
If no payment date is agreed, default arises under the statutory provisions.
Additionally, the customer will be in default without further notice 20 days after performance of the service and receipt of an invoice or a corresponding statement of account if it has not been settled by then.
In the event of default, the default interest rate is 9% above the respective base interest rate of the European Central Bank (ECB). This does not preclude the assertion of further damages or a higher rate of interest on other legal grounds. Damage caused by default includes any costs we incur as a result of having to transfer or assist in transferring licenses; we may charge such costs to the customer based on time and materials.
For wire transfers, payment is deemed timely only when funds are available to us. Checks will only be deemed payment upon their redemption in the amount actually received, minus any fees.
Even if the customer designates a specific debt for payment, we are entitled to apply payments to the oldest due invoice.
We retain title to any sold software until the agreed purchase price has been paid in full. This also applies to any resale of the software by a customer or a reseller to third parties. The reseller is obligated to notify the third-party buyer of our retention of title.
The assignment of claims against us is excluded. This does not apply within the scope of Section 354a of the German Commercial Code (Handelsgesetzbuch, HGB).

§ 6 Acceptance

If we render work performance (Werksleistungen), acceptance shall take place as follows:
1. After installing goods, particularly software, and testing them, we will inform the customer in writing that they are functional and request acceptance.
2. The customer shall test the software’s functionality.
3. If the software is ready for acceptance, the customer shall declare acceptance immediately, but no later than within 14 calendar days, in writing.
4. Acceptance cannot be refused due to minor defects.
Acceptance is performed by the customer signing an acceptance protocol. If the customer fails to sign such an acceptance protocol or if the acceptance period has lapsed, acceptance is deemed to have occurred, at the latest in the following cases:
1. if the customer uses the deliverable productively, unless such use serves solely to test acceptance; or
2. if the customer does not refuse acceptance in writing within 14 calendar days of the software’s availability for acceptance testing because of more than minor defects, or has not stated justified reservations regarding the software’s readiness for acceptance; or
3. if the customer pays the invoiced fees without written objection.
Acceptance is likewise deemed to have occurred if the customer fails to notify us within the period stated in paragraph (1) of any substantial defects that would hinder acceptance, or if the customer does not report disadvantageous deviations discovered during testing or through gross negligence, or if the customer fails entirely or partially to cooperate with acceptance testing, unless there are deviations that would have been discoverable had the customer cooperated diligently. We may inform the customer in the notice of readiness for acceptance of the significance of the customer’s conduct in these respects.
The aforementioned periods commence upon receipt of the notice of readiness for acceptance (email is sufficient).
If there are clearly delimited parts of performance that can be used independently or upon which further services are based, we may require partial acceptance. Such acceptance is permissible provided these parts are independently testable by the customer. If all parts of the service are accepted, then the final partial acceptance shall also constitute overall acceptance.
The customer has no right to commence live operations without our consent. Any commencement of live operations without our prior consent constitutes acceptance.
Any defect that would prevent acceptance must be described in detail, including how and under which circumstances the defect occurs, ideally accompanied by a log of reported errors. The defect must be reproducible unless we are able to observe it ourselves.
Where acceptance of performance does not apply (e.g., under a contract exclusively for services, such as training, where a specific outcome is not owed), Aident shall receive a written approval or a substantiated objection from the customer within 14 calendar days after presentation of the activity report. In this case, the Parties will work together to seek a solution.

§ 7 Warranty, Warranty Period

Except in the case of purely service-based agreements (Dienstverträge), we warrant that the performance is free from defects. The performance is free from defects if it does not have any flaws that nullify or reduce its value or suitability for the usual or contractually required use. The relevant point in time is the transfer of risk, i.e., upon our delivery or upon acceptance by the customer. The warranty for used products is excluded.
For third-party software products not manufactured by us (third-party products) that we merely convey to the customer, without having been separately contracted for selection or consulting, we assume no performance or warranty obligations or other contractual responsibilities or liabilities. The same applies if the customer incorporates third-party products (i.e., those not tested or explicitly approved by us) into any part or the entirety of our delivered services and solutions.
The software has been developed for use in conjunction with Microsoft products. To the extent that errors or defects in Microsoft software, or its improper configuration by the customer, impair the software’s functionality, this does not constitute a defect of our software. Before installing a new operating system (by Microsoft or any other manufacturer), the customer should inquire with us as to whether it is compatible with our software.
In the event of legal defects for which we are responsible, we are entitled at our discretion to eliminate or avert the third-party rights that impair the contractual use of the deliverables or to modify or replace them so that they no longer infringe the rights of such third parties, provided this does not materially impair the agreed functionality. If this is not possible on reasonable economic or practical terms, the customer is entitled to withdraw from the contract. Under these conditions, we may also withdraw from the contract.
The customer must immediately inform us of any assertion of third-party rights and grant us and, if applicable, a third-party manufacturer, all powers and authority necessary to defend the deliverable against such claims. If we are responsible for the legal defect, we shall reimburse the necessary statutory costs of legal proceedings incurred by the customer.
We are not liable for any damage arising from the customer’s failure to promptly inform us of third-party claims or from the customer acknowledging an alleged infringement or from the customer not leaving any disputes (including extrajudicial settlements) to us or not conducting them only in agreement with us. Otherwise, the provisions on defects in goods apply correspondingly.
Unless an acceptance test is already required (§ 6(2)), the customer must examine the performance for defects immediately upon transfer of risk and report them in writing within 14 calendar days. If the customer fails to provide timely notice, the performance is deemed to be approved, unless the defect was not discoverable upon the inspection. If such a defect is discovered later, the customer must notify us without delay after discovery; otherwise, the performance will be considered approved in this respect as well.
We shall promptly remedy any timely reported or documented defects from the acceptance protocol (§ 6(2)) to the extent technically possible. We shall decide the manner of rectification (e.g., subsequent performance in the form of repair or replacement, software modifications including updates, service packs, hotfixes, etc.). Until the defect is remedied, we may provide an interim functional solution.
The customer shall assist us in identifying and remedying the defect by providing all necessary information and data fully and accurately. We are not obliged to undertake fact-finding. Where necessary, the customer shall temporarily provide us with suitable tools and grant us access to its systems. We are entitled to perform defect analyses and fixes on the customer’s computers via data transmission (remote access).
Every notice of defects must include a detailed description explaining when and under which circumstances the defect occurs, ideally including an error log, in a reproducible form.
The warranty period is one (1) year, beginning at the transfer of risk.
If we perform work to locate or fix a defect for which we are not responsible, we reserve the right to invoice the customer for the incurred costs. This is particularly the case if a defect is not verifiable, not reproducible, or not attributable to us.
The warranty for our performance lapses if the customer specified an environment for the software or other contractual services but subsequently uses the solution in an environment not fully compliant with these specifications. The customer must indemnify us for any loss or damage (including third-party claims and related legal costs) arising from such deviations.
The warranty for our performance further lapses if the customer or a third party modifies the software without our consent, unless the customer can prove that the defect is not related to those modifications or uses and that they did not make it more difficult to identify or fix the defect.
The repair is deemed to have failed after the third unsuccessful attempt, unless the nature of the item or defect or other circumstances indicate otherwise. When determining a reasonable time limit and opportunity for rectification, account must be taken of the need for possible coordination with the manufacturers, required approvals from such manufacturers, or the possibility that such manufacturers must perform the corrections themselves. If the value or suitability of our performance is only slightly affected, rescission is excluded, even if the customer is in default of acceptance or is substantially responsible for the defect.
If the customer intends to claim damages in lieu of performance, the customer must first set us a four-week deadline with a declaration that performance will be refused after expiry of that deadline.
In the event of rescission, the customer must pay adequate compensation for the benefits received. This compensation shall be calculated proportionally to the purchase price and the period of actual use in relation to the expected total period of use (the tax-related depreciation period), minus an appropriate deduction for impairment caused by the defect leading to rescission. It is presumed that the software’s usage period is four (4) years.
Provisions regarding contributory negligence apply correspondingly.

§ 8 Liability, Limitation of Liability, Indemnification in the Event of Third-Party Claims

We are liable for damages arising from breaches of contractual obligations only if we are at fault.
Our liability for simple negligence is limited to damages that were typically foreseeable for us at the time of the breach, and is capped at EUR 10,000 per loss event.
Extracontractual liability remains unaffected.
We maintain adequate insurance cover at all times to fulfill the liability in accordance with paragraphs (1) to (3) and can provide evidence of this at the customer’s request.
Our liability is excluded:
1. insofar as the customer is itself responsible for the damage (Section 254 BGB), particularly where the customer:
  - has not or not sufficiently fulfilled its cooperation obligations,
  - has used our services in a manner contrary to the contract (e.g., user error, use of hardware or software that does not meet the specifications),
  - has made unauthorized modifications to the subject matter of performance, or
  - has disregarded legal or contractual provisions to mitigate damages;
2. for loss of profit;
3. for cyber damage, i.e., data loss or data corruption arising from network security breaches (e.g., hacker attacks, malware, denial-of-service), infringements of data protection laws, and cyber-extortion by third parties.
In the event of data loss, we are liable under the provisions above only if such loss could not have been avoided by appropriate data backup measures by the customer. In particular, data backup is inadequate if the customer failed to take appropriate measures, in accordance with the state of the art, to protect against internal disruptions and external interventions that endanger individual data or entire sets of data. We are liable only for the costs of restoring data up to the last backup available or necessary.
Liability for interruptions, disruptions, or other damage-causing events arising from telecommunications services we or Third Parties for whom we are liable provide is limited to the extent we can seek recourse against the respective telecommunications service provider. We are not liable for the functionality of communication equipment to contractual servers, for power outages, or server failures that lie outside our sphere of influence.
The aforementioned regulations do not imply a shift in the burden of proof to the customer’s detriment.
The limitation period for non-substantial contractual breaches is two (2) years.
Our liability for any open-source software provided free of charge is excluded.
We assume no liability for the content of the customer’s data backups.
In the event of a warranty or liability claim against us, any contributory negligence on the part of the customer must be taken into account, particularly in cases of inadequate defect reporting or insufficient data backup.
We expressly do not assume any liability for third-party products.
The aforementioned exclusions and limitations of liability do not apply in cases of fraudulent concealment of defects, an assumption of a guarantee of quality, claims by the customer under the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG), or for personal injury (including health or life).
In principle, we provide the software free of third-party rights that would significantly restrict or exclude its use by the customer under the terms of this contract. If the customer’s use of the software under the terms of this contract is impaired by third-party rights, we have the right, insofar as reasonable for the customer, either to modify the software so that it falls outside the scope of such third-party rights, or to obtain authorization so that the software can be used in full and without additional costs for the customer, or to withdraw from the contract.
If such third-party claims are asserted as described in § 8(15), we will indemnify the customer from court-ordered costs and damages. This indemnity is subject to the following conditions:
1. We are notified by the customer in writing or in text form (e.g., email) without delay of the third party’s assertion of claims,
2. the customer leaves us in sole control of the defense and all related actions, and
3. the customer provides the necessary support, information, and authority to carry out the aforementioned actions.
No indemnity applies to any modification of the software not carried out by us, where no infringement would have arisen without such modification, any use of the software combined with applications or services not supplied by us, where no infringement would have arisen otherwise, third-party applications, or any use of the software by the customer that does not conform with the contract, where no infringement would have arisen otherwise.
Where our liability is excluded or limited pursuant to the above provisions, this also applies to personal liability of our legal representatives, employees, and vicarious agents.

§ 9 Data Protection, Treatment of Data at End of Contract

Insofar as we collect, process, or use personal data in the performance of our services, we do so exclusively on behalf of and in accordance with the individual instructions and the technical, organizational, security, and procedural requirements specified by the customer; details are set out in a separate data processing agreement according to Article 28(3) of the General Data Protection Regulation (GDPR).
As the controller under data protection law, the customer must give us instructions on the handling of its data (including their retention) in good time before the end of the contract. Where there is no data processing agreement, at the end of the contract we will discontinue all processing services and, at the customer’s option and instruction, either delete or return any personal data of the customer then in existence, unless there is a legal obligation to retain such data. Where a data processing agreement is in place, we will migrate the data against payment in accordance with the customer’s instructions unless we have a statutory duty to store them. Data will be provided or migrated in a technically suitable manner (chosen by us, giving reasonable consideration to the customer’s preferences) on or via state-of-the-art media (including data transmission) in the data format in which they are stored on the data server. The customer is obliged to accept delivery. The customer is not entitled to obtain the software required to use the data. Unless otherwise instructed, we will delete the customer’s stored data 14 (fourteen) days after their release or migration in connection with the termination of the contract, provided the customer does not notify us within this period that the data are incomplete or unreadable. Failure to notify us will be deemed consent to the deletion of the data. We will specifically draw the customer’s attention to the significance of its conduct upon release or migration.

§ 10 Confidentiality and Contractual Penalty

The customer is obliged to treat Confidential Information confidentially and to protect it from being accessed by unauthorized third parties. “Confidential Information” includes all of Aident’s business and trade secrets as well as all other information or data that we disclose to the customer verbally, in writing, or in any other form in connection with fulfilling the contract, which we have labeled or designated as confidential or whose confidentiality is otherwise evident, including offers, project descriptions, etc.
The customer may only use disclosed Confidential Information to fulfill the contractual purposes or due to a mandatory legal obligation. Disclosure of Confidential Information is permissible only if
1. it is made to the customer’s employees requiring such information to fulfill the contractual purposes, provided they are obliged to confidentiality at least to the same extent as the customer;
2. it is made to the customer’s advisors, provided they are under a statutory obligation of secrecy with respect to the disclosed Confidential Information;
3. disclosure is required by a mandatory statutory obligation; or
4. we have expressly consented in writing or in text form (e.g., email) to such disclosure.
The obligation to maintain confidentiality does not apply if and to the extent that the customer is legally or by order of a governmental authority or competent court required to disclose the Confidential Information. The customer shall inform us of this in writing or in text form (e.g., email) without delay and shall take our interest in confidentiality into account in making the disclosure.
The confidentiality obligation does not apply if the Confidential Information
1. was already publicly known or becomes publicly known after disclosure without any confidentiality breach having contributed thereto;
2. was disclosed explicitly on a non-confidential basis;
3. was already lawfully in the customer’s possession before disclosure; or
4. is subsequently disclosed to the customer by a third party without breach of a confidentiality obligation.
The customer bears the burden of proof for the existence of any exemption.
The duty of confidentiality continues to apply for five (5) years following termination of the contractual relationship with us.
The aforementioned provisions do not affect our statutory rights, especially under the German Trade Secrets Protection Act (GeschGehG).
The customer acknowledges that the unauthorized disclosure or use of Confidential Information may lead to substantial, irreparable harm that may be difficult to measure. The customer therefore agrees that, in the event of unauthorized disclosure of Confidential Information, Aident is entitled to seek injunctive relief to enforce these obligations, without having to prove actual damage.
In the event the customer, its employees, advisors, subcontractors, or any other third parties engaged by it culpably breach these obligations, Aident shall be entitled to demand payment of a reasonable contractual penalty, whose amount shall be determined at Aident’s reasonable discretion, subject to review by the competent court at the request of the customer. Payment of the contractual penalty does not preclude assertion of further damages by Aident. Any contractual penalty paid shall be credited against possible damages claims, with the penalty constituting a minimum amount of damages.

§ 11 Final Provisions, Governing Law, Use of a Qualified Electronic Signature, Place of Performance, Jurisdiction, Severability

German law applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The contracting Parties agree that the written form required under the contract is also deemed satisfied if the respective declarations are made using a qualified electronic signature; the Parties expressly acknowledge advanced electronic signatures as valid, legally binding, and as fulfilling the written-form requirement under the contract and these GTC.
If the customer is a merchant (Kaufmann), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for both Parties for all current and future claims arising from the business relationship is either our place of business or—at our choice—the place of business of the branch office that concluded the contract.
We reserve the right to amend these GTC with effect for the future if this is necessary to remedy subsequently arising disruptions of equivalence or to adapt to changed legal or technical conditions. The customer will be informed in writing of any changes to key components of these GTC. The changes will become part of the contract and be deemed approved if the customer does not object to them in writing. This consequence will be specifically pointed out in the notification letter. The objection must be received within six weeks of receiving the notification. If the customer objects to an amendment, we reserve the right not to continue the contractual relationship.
Should individual provisions of these GTC be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. Instead, the Parties will replace the invalid or unenforceable provision with a provision that, in a legally permissible manner, most closely approximates the intended economic and legal purpose. The same applies if a gap needing completion becomes evident.

B. Scope of Services and Customer Cooperation Duties for Delivery of Standard Software, Usage Rights

The following provisions apply in addition to the General Provisions in Section A. In the event of inconsistencies, these Special Provisions take precedence over the General Provisions.

§ 1 Scope of Performance in the Acquisition of Standard Software

Unless otherwise agreed in writing, the software subject to the contract is exclusively standard software, which has not been individually developed/manufactured for the customer’s needs. The customer is aware that, according to the state of the art, it is impossible to develop standard software that is error-free for all application conditions.
If we are obliged to deliver standard software and provide the object code, this shall be delivered by providing the customer with access to a download link. Under no circumstances is there a right to the source code or its disclosure.
Depending on the manufacturer, the customer may receive online help within the IT system as program documentation and an aid for working with the standard software.

§ 2 Commissioning and Installation of the Software by the Customer and Any System Requirements

Unless contractually agreed otherwise, the customer shall install the software itself and put it into operation.
In the case of standard software, it is the customer’s responsibility to test its usage under their own operating conditions. System requirements for the standard software shall be provided to the customer by us if so agreed in the contract. The system requirements provided are the current system requirements of the standard software at the time of provision. The customer acknowledges that system requirements may change over time due to the evolving nature of the system environment (e.g., changes to or discontinuation of support for the operating system, etc.).

§ 3 Commissioning and Installation of the Software by Aident and Related System Requirements, Customer Cooperation Duties in the Commissioning and Installation of the Software by Aident, Acceptance

If we are obliged to deliver and install standard software, the customer shall ensure that the known or communicated requirements for the IT system environment are met prior to installation or updates of the software, especially compatibility and interoperability. During any test operations and during installation, the customer shall ensure the presence of an adequate number of qualified and trained employees and, if necessary, suspend other activities on the affected IT systems. Prior to every installation, the customer is responsible for data backup.
For software implementations by us: immediately after transferring the original data, the customer shall carry out a data backup under their responsibility covering all programs, master data, transaction data, and parameters. This backup documents our performance. If the customer does not perform this backup, it shall be rebuttably presumed that our performance was faultless at that time. Data backups must be kept in compliance with data protection law (ensuring confidentiality, security, integrity, authenticity, availability).
If Aident is to install the software, this is carried out, depending on the agreed arrangement:
1. on the customer’s premises (on-premise), or
2. on an external cloud provider’s cloud solution.
On-premise installation by us generally takes place by means of remote data transmission (remote control software, e.g., TeamViewer). The customer shall provide and maintain the required infrastructure and provide us with the necessary system access. If an easy remote connection via telecommunications and remote-control software is not feasible or allowed, the customer bears all resulting disadvantages, e.g., the additional costs incurred on our side or, in exceptional cases, the costs of dispatching a member of our staff or vicarious agents. Dispatching such staff only occurs in consultation with the customer and will be billed at the rates in our then-current price list. Where we install on an external cloud provider’s solution, we do so in cooperation with that external cloud provider. The system requirements of the software are coordinated between the Parties prior to installation via a checklist.
Each installation by us shall occur on the installation date agreed with the customer.
The customer shall reasonably support us in installing the software. In particular, installation by us requires the timely clarification of all technical issues with the customer and, if applicable, the external cloud provider. The customer must:
1. Provide Aident at least 14 calendar days prior to the agreed installation date with all technical and/or organizational information relevant to the software installation,
2. Ensure that competent personnel from the customer are present or accessible on the agreed installation date,
3. Appoint a responsible contact person.
Where Aident installs the software on an external cloud provider’s solution, in addition to points (a) through (c), the customer shall ensure that qualified personnel from the external cloud provider are also present on the agreed installation date, as such installation can only take place jointly with the external cloud provider. Any costs incurred by the external cloud provider for its participation or support are to be borne by the customer.
If the customer fails to perform its obligations under paragraph (6) in a timely and correct manner, installation by us on the agreed date cannot take place. In such an event, we expressly reserve the right to cancel the installation appointment and to assert any legal claims to which we are entitled if the customer is in default of its cooperation obligations.
The customer is obliged to accept the software after installation unless, in light of the user documentation (for standard software) or the performance specification (for individualized software), there are material defects that prevent or significantly impair the use of the software. Acceptance may not be refused due to minor defects.
Acceptance is declared by the customer signing the acceptance protocol. If the customer does not sign an acceptance protocol, acceptance is deemed to have occurred at the latest if:
1. the software is put into productive operation, or
2. Aident offers the customer acceptance in text form (email is sufficient), and four (4) weeks have elapsed since that offer, and Aident has explicitly pointed out to the customer the consequences of this in the acceptance offer.

§ 4 Usage Rights for Standard Software

Where software is provided for use only, we remain the sole owner or rights holder.
Unless otherwise agreed and once the agreed remuneration has been paid in full, we grant the customer a non-exclusive, perpetual, irrevocable, and non-transferable right to use the software on its IT system to the extent agreed.
If the subject matter of the contract includes software from a third-party manufacturer (e.g., Microsoft), the manufacturer’s terms of use apply; we merely act as an intermediary for the license contract, which is concluded directly between the manufacturer and the customer. These terms of use will be provided to the customer on request—if desired, even prior to the conclusion of the contract.
In the event of a hardware change, the contractual software must be completely deleted from the previously used hardware.
In all cases, the customer must take suitable measures to prevent any unauthorized use by third parties. Depending on the relevant terms of use, “third parties” may also include the customer’s branch offices, affiliated companies (e.g., if the customer is licensee), shareholders, or any spatially or organizationally separate units of the same organization.
Where we modify third-party software products, the license terms of the third party apply. In such cases, the customer is granted a non-exclusive, perpetual, and non-transferable right to use them for its own internal business purposes, unless agreed otherwise. This right includes other contractual deliverables—e.g., partial or interim results (e.g., functionally distinct apps) or training materials and tools.
If we provide the customer with an industry solution based on Microsoft standard software, the number of Microsoft licenses must always match the number of licenses for our industry solution. The customer must ensure that any additional licenses are acquired to align with the respective number of licenses.
Where open-source software is delivered with the IT system, all customer rights to such software are governed by the respective provisions of the rights holder or distributor. We will notify the customer before delivery of any IT system that contains software subject to the GNU General Public License (GPL) of any version or other “copyleft” licenses.
Unless otherwise agreed in writing or required by law, the customer, as licensee, has no right to modify or edit the software, or the code or documentation, nor to copy or reproduce it. Any existing copyright notices or registration marks, such as registration numbers in the software, may not be removed or modified.
Where the customer has been granted development rights in third-party standard software under § 3(2), the customer shall inform us in advance of the nature and content of any planned developments prior to license delivery or, if the developments are planned at a later date (i.e., before or during live operation under an existing project or support agreement with us), and, if we deem it necessary, conclude a separate delimitation agreement with us. The customer is responsible for informing themselves about any development restrictions imposed by third-party manufacturers (e.g., Microsoft Universal Code).
Unless these license terms provide otherwise, the resale, rental for purposes other than acquisition, or lending of the software, or any other independent granting of usage rights, is permissible under statutory limits and only if the original storage media are handed over to the purchaser or user, we are informed in writing of the purchaser’s or user’s name and address, the purchaser consents to our delivery and performance conditions as well as the license terms of any third-party manufacturer whose standard software is included, and the customer deletes or destroys all copies or components of the software from its system and all external data carriers, including backup copies, so that no further possibility of use remains and can confirm such deletion or destruction to us upon request.
Any transfer of licenses requires our explicit consent; any costs incurred thereby are to be borne by the customer.
The transfer of the respective usage right is, in case of doubt, subject to the condition precedent of full payment. Any prior usage is therefore subject to a time limit.
The above license terms apply to all forms of use, whether currently known or unknown, including online distribution.

C. Scope of Services in the Delivery of Customized (Individual) Software, Changes in Performance, Usage Rights

The following provisions apply in addition to Section A (General Provisions). In the event of inconsistencies, these Special Provisions take precedence over the General Provisions.

§ 1 Scope of Performance in the Acquisition of Customized Software

If the customer intends to have software newly developed by us for its operational needs or to acquire certain specified standard software and adapt it to the requirements of its business, we shall supply the adapted software to the customer, train the customer’s employees on request (for a fee), and possibly provide further training services.
The customer shall inform us fully and in detail of its technical and functional requirements for the software and shall promptly provide all documents, information, and data necessary for the software’s creation. This also includes describing realistic and appropriate test cases and test data to verify the software’s properties.
The performance description reflects the final and complete specification of the software’s properties. Changes to the performance description shall only be made in accordance with § 2. Any analysis, planning, or advisory services we provide in conjunction with the performance description require a separate contract and separate remuneration.
The scope of services for the permanent delivery of customized software is limited to analyzing the customer’s system in advance, creating a performance description that specifies the key features of the customized software, developing/programming it based on that description, and carrying out a subsequent functional test, unless otherwise agreed by the Parties.
Unless otherwise contractually agreed, the following are not included in the scope of services for customized software:
1. installation of the software,
2. instruction or training in operating and handling the software,
3. provision or escrow of the software’s source code, and
4. user documentation.
If we are obliged to create user documentation, there is no entitlement to updated documentation with every change in the software; only major changes that make new documentation or instruction strictly necessary will give rise to such a claim.
If we are required to provide the object code, we will do so by notifying the customer of a download link. If we are required to install the software, the customer shall ensure that the known or communicated requirements for the IT system environment (compatibility, interoperability) are fulfilled before installation or updates.

§ 2 Procedure for Changes in Performance

Either Party may propose changes to the performance description (§ 1(2)) and to the performance of the contract, according to the following procedure:

If the customer makes a proposal for change, we will review it.
If a detailed review of the proposed change is required, we shall inform the customer of the anticipated time and cost effort for that review. The customer must inform us within five (5) calendar days whether they place a binding order for the review or reject it.
If no detailed review of the proposed change is required or once the review has been completed, we shall either submit a written change offer (Änderungsangebot) or, if we are fundamentally unable or unwilling for any reason to implement the proposed change, we shall inform the customer of this. The change offer shall set out the proposed modifications to the existing performance description and indicate any effects on previously agreed schedules or on remuneration.
The customer shall accept or reject the change offer in writing within the specified period. Any rejection must be communicated to us in good time.
The customer and we may agree to suspend any performance that would be affected by the proposed change until the review is concluded or until the binding period of the change offer expires.
Until the customer has accepted the change offer, the work will continue under the existing contractual terms. The performance periods will be extended by the number of calendar days during which the work was suspended due to the proposed change or its review. We may charge reasonable remuneration for the duration of such suspension unless we are able to or have maliciously refrained from deploying the affected employees elsewhere.
Unless otherwise agreed, the change procedure must be documented in writing or text form. Any changes to the performance description must be agreed in writing or another form agreed by the Parties.

§ 3 Commissioning and Installation of the Software by Aident, System Requirements, Customer Cooperation Duties for Commissioning and Installation, Acceptance

For installation and commissioning, the provisions of Section B, § 2 apply correspondingly.

§ 4 Usage Rights for Customized Software

Where software is provided for use only, we remain the sole owner or rights holder.
Unless otherwise agreed and provided the agreed fee has been paid in full, we grant the customer a non-exclusive, perpetual, irrevocable, and non-transferable right to use the software on its IT system to the agreed extent.
If the subject matter of the contract includes software from a third-party manufacturer (e.g., Microsoft), the manufacturer’s terms of use apply; we merely act as an intermediary for the license, which is concluded directly between the manufacturer and the customer. We will provide these terms upon request—if desired, even before the contract is concluded.
If hardware is replaced, the contractual software must be fully removed from the former hardware.
In all cases, the customer must ensure that no unauthorized use by third parties occurs. Depending on the relevant terms of use, “third parties” may include branch offices, affiliated companies of the customer (e.g., as licensees), shareholders, or spatially or organizationally separate units of the same organization.
Where we modify third-party software products, the terms of the third party apply. In this case, the customer is granted a non-exclusive, perpetual, and non-transferable right to use them for its own internal business purposes, unless agreed otherwise. This right covers the contractual deliverables, including partial or interim results (e.g., functionally distinct apps), training materials, and resources.
If we provide the customer with an industry solution based on Microsoft standard software, the number of Microsoft licenses must always match the number of licenses for our industry solution. The customer shall ensure that any shortfall in the respective number of licenses is promptly rectified by purchasing additional licenses.
If open-source software is delivered along with the IT system, the customer’s rights to such software are determined by the respective terms of the rights holder or distributor. We will inform the customer in advance if any delivered IT systems contain software under the GNU General Public License (GPL) of any version or other “copyleft” licenses.
Unless otherwise agreed in writing or required by law, the customer, as licensee, has no authority to modify or edit the software or the materials provided (code, documentation), nor to copy or reproduce them. Copyright or registration marks, especially registration numbers in the software, may not be removed or altered.
Where the customer is granted development rights in third-party standard software according to § 3(2), the customer shall inform us of the nature and content of planned developments prior to license delivery or—if planned later (i.e., before or during live operation, within an existing project or support relationship)—and, if we deem it necessary, conclude a separate agreement delineating such developments. The customer is obliged to inform itself about any development restrictions set by third-party manufacturers (e.g., Microsoft Universal Code).
Unless otherwise stated in the foregoing license terms, resale, rental for purposes other than acquisition, or lending of the software or any other independent granting of usage rights is permitted only within the legal constraints and only if the original media is transferred to the purchaser or user, we are informed in writing of the purchaser’s or user’s name and address, the purchaser or user agrees to our delivery and performance terms as well as the license terms of any third-party manufacturer whose standard software is included in the software, and the customer deletes or destroys all remaining copies or components of the software from its system and all external data carriers, including backups, leaving no possibility of further use. We may request proof of this deletion or destruction.
Any transfer of licenses requires our express consent; any associated costs shall be borne by the customer.
The transfer of each usage right is, in case of doubt, subject to full payment of the relevant invoice. Any prior use is thereby limited in time.
The above license provisions apply to all modes of usage, whether currently known or unknown, including online distribution.

D. Special Provisions for Services Under Service Contracts and Leasing (Cloud, SaaS), as well as App Acquisition

§ 1 General

We provide documentation and service (especially maintenance, updates, support) and implementation support (e.g., training) solely on a service-contract basis. The services described in Section D are provided exclusively on a service-contract basis.

§ 2 Maintenance and Support Services, Support Services

Where the contractual scope includes maintenance/support services or updates, the special conditions of the respective provider or subcontractor apply to any services provided by us through mediation or subcontracting.
Unless agreed otherwise, software maintenance and support services include support to maintain operability and ensure safe operation, checking critical software functionality, providing and installing software updates (patches, releases, updates), supporting and maintaining them, restoring or repairing the relevant software (particularly fixes or patches), and correcting reproducible software errors.
The aforementioned services are normally provided via remote maintenance using data transmission initiated and monitored by the customer.
Unless otherwise agreed in the contract, we are not obliged to provide new program versions that largely constitute new programming or new products or major further developments, to modify source or object codes, to restore or repair an IT system damaged or changed by the customer’s own programming, or to restore operational readiness following relocation of the system or to remedy the effects of user errors or improper use.
Any agreed service days and service packages (including updates and support) can be utilized within our support team’s usual business hours.

§ 3 Provision of “Cloud Services” (Including “Software as a Service”/SaaS), SaaS Operation and Use of Microsoft Online Software Products by Subscription (“Subscription”), Modern Lifecycle Policy

If we are contractually obliged to provide so-called “Cloud Services,” we shall be responsible for providing the agreed cloud-based software and storage space on our servers or the servers of third-party providers, and for support—or for providing software-based functionalities billed according to usage.
The scope of services is determined by the product terms and/or service descriptions for the relevant product—for example, under the Microsoft Cloud Solution Provider (CSP) program for Microsoft Online Services in its currently valid version. The respective service level agreements regarding availability apply.
The customer is granted a non-exclusive and non-transferable right to use the service for the contractually agreed purpose. The respective cloud provider will take suitable measures to prevent data loss and to protect the customer’s data from unauthorized third-party access, including performing regular backups, scanning for malicious software, and employing up-to-date firewall systems. Detailed terms are set out in the cloud provider’s usage conditions and service descriptions (for example, Microsoft’s Cloud Solution Provider (CSP) program). Aident is not liable for the security or availability of the cloud-based services if these aspects lie outside our sphere of influence.
If the customer uses Microsoft Online services in SaaS mode and obtains software products by subscription, the Microsoft Modern Lifecycle Policy applies, requiring that all updates be integrated into the latest major release so the user can obtain the full range of support. The customer must operate its software products on the currently released major release.

§ 4 Application Software Programs (App)

The customer can acquire application software (apps) as part of service packages or by obtaining software licenses from us and/or from AppSource (and potentially other online marketplaces) for its own cloud-based use within its own business operations, and can purchase any required service packages or software licenses to supplement them. The customer remains responsible for the professional information, evaluation, implementation, and introduction of such services or software.
For third-party products that we merely mediate to the customer without having been contractually mandated to provide selection or application consulting, Aident has no service, warranty, or other contractual obligations or liabilities and is not required to assume them. The same applies to readiness or capacity for maintenance by the manufacturer itself or a third party. Maintenance, service, and support by us are excluded for these software products. Similarly, if the customer integrates such third-party products into some or all of our provided services and solutions without our review and explicit approval, we assume no responsibility.

§ 5 Customer’s Liability, Indemnification of Aident

The customer is not entitled to permit partial or full use of the services specified in Section D by any third party, whether paid or free of charge. If a third party uses the customer’s login data to access these services without authorization, the customer shall be liable for any fees incurred until the customer notifies us of the need to change access data or reports loss or theft, provided that the customer was at fault for such unauthorized access.
The customer shall indemnify us against all third-party claims arising from data stored by the customer, and shall reimburse us for any necessary expenses we may incur due to potential legal infringements.
We are entitled to immediately block the customer’s access to the data storage area if there is reasonable suspicion that stored data is illegal or infringes upon the rights of third parties, particularly if courts, authorities, or other third parties inform us of this. We will notify the customer without delay of any block and the reasons for it, and will lift the block as soon as the suspicion is refuted.

§ 6 General Features of Services under § 2–§ 4

We use specifically described IT systems and services for the individual services referred to in § 2–§ 4; we reserve the right to make changes—also short-notice changes—to remain in line with the state of the art.
We reserve the right to meet the agreed service objectives by other or additional measures.
We may freely choose the systems, storage location and media, and any related software for fulfilling these services.
If the technical or legal requirements for the services referred to in § 2–§ 4 change, we will apply the change request procedure in Section C, § 2.