General Terms and Conditions

General

These general terms and conditions apply to all supply relationships between ENKO Software GmbH & Co. KG, hereinafter referred to as “ENKO”, as service provider and supplier, and the customer/purchaser of software and specific customizations, hereinafter referred to as the “customer”. ENKO offers its services exclusively in the business sector and concludes contracts only on the basis of its own general terms and conditions. Deviating or additional terms of the customer do not become part of the contract, even if ENKO does not expressly object to them. Where these terms and conditions contain no provisions, the statutory provisions apply, not the customer’s general terms and conditions. Contractual provisions individually agreed between the parties, and their annexes, take precedence over these general terms and conditions, which nevertheless apply in addition.

Quotation and conclusion of contract

ENKO’s quotations are always non-binding; changes and errors excepted. A contract is concluded only upon written order confirmation by ENKO, upon signature of an order, or at the latest upon acceptance of delivery or installation by the customer or by ENKO. Orders placed without a prior quotation pursuant to point 2 become binding on ENKO only upon order confirmation. The same applies if the customer modifies a quotation from ENKO.

ENKO employees and subcontractors

Work is carried out on site at the customer’s premises only where necessary. Services that ENKO employees do not perform at ENKO’s place of business are invoiced separately on a time and material basis, including travel time, travel costs, expenses and, where applicable, overnight accommodation costs. Even where ENKO employees are deployed at the customer’s operating sites, the unrestricted right to issue instructions and directions remains with ENKO. Working hours are governed by the working-time rules of ENKO applicable from time to time. ENKO is entitled to engage third parties in order to fulfill its performance obligations. The parties undertake, during the term of this contract and for one year thereafter, not to solicit or otherwise employ any employees or freelancers of the respective other party. The customer undertakes to support ENKO to the extent required and to create, within its own area of operations, all the conditions necessary for the proper execution of the order. At ENKO’s written request, the customer confirms the completeness and accuracy of the documents and information it has submitted.

Prices and payment terms

Services are generally invoiced on a time and material basis. The nature and duration of the employee’s activity are recorded in a list, which is submitted to the customer together with the invoice. Cost calculations submitted by ENKO are non-binding estimates of effort. If the actual implementation effort deviates by more than 10 % from the estimate provided, ENKO will inform the customer of this without delay. ENKO’s remuneration is governed by the attached price list, which sets out the hourly rate, the increased hourly rate and the incidental project costs. The services price list ceases to be valid upon completion of the respective order. Where a fixed price is agreed for individual services or for the order as a whole and it subsequently emerges that the estimates on which ENKO based the price were incorrect due to false assumptions that are not within ENKO’s sphere of responsibility, ENKO is entitled to demand an adjustment of the fixed price. ENKO is entitled to demand payments on account. Invoices are due for payment without deduction within 14 days of the invoice date. If the customer is in default of payment, ENKO is entitled to demand default interest at a rate of 9 percentage points above the base rate. ENKO reserves the right, if the customer is in default of payment, to suspend further execution of the order until payment is made and to demand payment in advance for continued work. ENKO is entitled to withhold the release of work results until payment has been made in full.

Delivery and delivery time

Unless otherwise agreed, delivery is ex works. Delivery dates or periods, which may be agreed as binding or non-binding, must be in writing. ENKO is entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the customer. ENKO is not responsible for delays in delivery and performance due to force majeure or due to events that substantially impede or render impossible delivery by ENKO – this includes in particular strikes, lock-outs, official orders and the like, even where these occur at ENKO’s suppliers or their sub-suppliers –, including where periods and dates have been agreed as binding. Such events entitle ENKO to postpone the delivery or service for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part in respect of the part not yet performed. If the impediment lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract in respect of the part not yet performed. If the delivery time is extended or if ENKO is released from its obligation, the customer may not derive any claims for damages from this. ENKO may invoke the aforementioned circumstances only if it notifies the customer without delay.

Warranty and liability

ENKO warrants that the software supplied and the services rendered substantially correspond to the description agreed in the contract. ENKO gives no warranty as to the suitability of the software or service for a particular purpose, unless this has been expressly agreed in writing. The warranty period is 12 months from delivery or acceptance. In the event of defects, the customer must grant ENKO a reasonable period for subsequent performance. If subsequent performance fails, the customer may, at its option, demand a reduction in the remuneration or rescission of the contract. ENKO’s liability for damage not occurring to the delivered item itself is excluded – on whatever legal grounds. This does not apply where liability is mandatory in cases of intent, gross negligence or injury to life, body or health. ENKO is not liable for loss of profit or other financial loss suffered by the customer. Insofar as ENKO’s liability is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents.

Retention of title

ENKO retains title to the goods delivered until all claims arising from the business relationship with the customer have been paid in full. In the event of conduct by the customer in breach of contract, in particular default of payment, ENKO is entitled to take back the goods. Neither taking back the goods nor seizing the goods subject to retention of title constitutes withdrawal from the contract.

Use of software

ENKO grants the customer the non-exclusive right to use the software supplied. The customer may install and use the software on the machines required for using the software. The customer may not rent out, lease or otherwise sublicense the software, or make the software publicly accessible. The customer may not reverse-engineer, decompile or disassemble the software unless this is expressly permitted by law. The customer may not modify, adapt or otherwise alter the software. The customer may make only the number of copies of the software or the documentation that is necessary for archiving purposes, for replacing lost or damaged software or documentation and for training purposes. The customer may use the software only to the extent specified in the contract. Any use beyond this requires ENKO’s written consent.

Final provisions

The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is ENKO’s place of business, unless otherwise stated in the order confirmation. Amendments and additions to this contract must be made in writing. This also applies to the waiver of this written-form requirement. Should individual provisions of this contract be or become invalid, or should it contain a gap, the validity of the remaining provisions remains unaffected.