1.1. Subject of the following general terms and conditions (GTC) are all deliveries and services from Kenner Soft Service GmbH.
1.2. Detailed descriptions of the services to be provided can be found in the tender documents, project contracts, their attachments and service descriptions from Kenner Soft Service GmbH.
2.1. Kenner Soft Service GmbH (hereinafter referred to as Kenner Soft) provides its services for clients (hereinafter referred to as customer) exclusively on the basis of these terms and conditions, unless otherwise regulated in the contract between the contracting parties and provided that the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) or a legal person under public law.
2.2. These terms and conditions also apply to all future business relationships between the contractual partners without the need for a separate agreement.
2.3. General terms and conditions of the customer or third parties only apply to the extent that Kenner Soft has expressly agreed to them in writing.
2.4. By placing an order, the customer expressly accepts these terms and conditions.
3.1. The contract is concluded through written or electronic confirmation of the offer by the customer, written or electronic order confirmation by Kenner Soft or the conclusion of a contract between the contracting parties.
3.2. Kenner Soft’s offers lose their validity after two weeks from the issue date.
3.3. The offer made by Kenner Soft to the customer may not be made available to third parties either in whole or in part without the prior written consent of Kenner Soft.
3.4. All works and services provided to the customer prior to the contract remain the property of Kenner Soft and may not be made available to third parties without the prior written consent of Kenner Soft.
3.5. Every written, oral or implied instruction by the customer or his authorized representative to perform by Kenner Soft is deemed to be the placing of an order.
4.1. The scope of the services to be provided by Kenner Soft for the customer can be found in the service description of the respective offer. This also includes all additional requirements and service descriptions that supplement or specify the services mentioned in the offer.
4.2. All requirements and service descriptions are passed on to Kenner Soft in written or electronic form or are created and coordinated together with the customer, separated from one another and recorded in the form required by Kenner Soft (e.g. as a “User Story”). All associated activities of Kenner Soft are part of the remunerated services and are billed at the usual hourly rate. This also includes the subsequent specification, adjustments and extensions of the descriptions of customer requirements recorded up to then.
4.3. Based on the specifications recorded as a result of a requirements analysis, Kenner Soft can create a description of the possible solutions for realizing customer requirements and coordinate it with the customer. All associated activities are also part of the remunerated services and are billed at the usual hourly rate.
4.4. Kenner Soft is entitled to use the help of qualified vicarious agents (subcontractors) for the implementation of the contract and to transfer the associated rights and obligations to them as vicarious agents.
If services by such third parties are not provided on time or properly, Kenner Soft can only provide the services with delays or withdraw from the contract. The customer is to be informed immediately, as far as possible or reasonable. The selection and monitoring of these third parties is the responsibility of Kenner Soft.
4.5. Services not expressly mentioned in the offer are not part of the contract and are not owed by Kenner Soft unless these have also been agreed in writing or electronically.
4.6. Kenner Soft undertakes to deliver sufficiently tested software. If the installation is carried out by the customer himself, a data backup must be carried out by the customer beforehand. Kenner Soft is not liable for the damage caused by incorrect installation or insufficient data backup.
4.7. Kenner Soft is not obliged to provide intermediate results such as Drafts, Layouts, Source files etc.
4.8. Kenner Soft reserves the right to make minor and/or technical deviations from the content of the contract, provided that this does not result in any economic or technical disadvantages for the customer.
4.9. As far as necessary, Kenner Soft is entitled to demand the mutual use of issue tracking and project management software by the contracting parties.
4.11. Cost estimates by Kenner Soft are made to the best of its knowledge and belief on the basis of the information available at the time of the estimate, which is often incomplete and is non-binding.
4.12. Kenner Soft delivers the contractual software in executable form (object code). The source code is not part of the contract and is only delivered if it has been agreed in writing or in electronic form. The release of source code for software from third parties is not required. Documentation of the source code is not required as long as it has not been agreed in writing.
4.13. Kenner Soft takes over the configuration of the tax calculations only at the explicit request of the customer, the correctness of the tax calculations is not guaranteed. The customer must ensure that the tax calculations are correct.
5.1. All changes or additions to the contract must be made in writing or electronic form in order to be legally effective. Oral orders or changes are only binding if they are confirmed by Kenner Soft in writing or electronically within one week and the customer does not object in writing or electronically within one week of receipt of this confirmation.
5.2. Kenner Soft will examine the customer’s change request and its effects on the existing agreement. The examination is to be paid for at the usual hourly rate. Kenner Soft notifies the customer of the result of the test. In doing so, Kenner Soft will either submit a detailed proposal for implementing the change request or explain why the change request cannot be implemented.
5.3. If the change can be carried out according to the result of the examination, the contracting parties will coordinate the content of the proposal for the implementation of the change request. If an agreement is reached, the contract will be amended to that extent. If no agreement can be reached, the original scope of services remains.
5.4. Agreed dates will be postponed, if and to the extent that they are affected by the change required by the customer, taking into account the duration of the examination, the decision on the change proposal and, if applicable, the time for change requests to be carried out plus an appropriate preparation period. Kenner Soft will notify the customer of the new dates.
5.5. The customer must bear all additional costs incurred with the changes or additions, including costs for the services already provided or for partial services that are no longer required. The usual hourly rate applies.
5.6. If the ongoing work reveals that the effort associated with the implementation will significantly exceed the expected effort and if the cause can be seen in an inappropriate or incomplete description of the task, due to which the effort could not be specifically estimated, then any additional effort / additional costs will be assessed after examination of the feasibility and the resulting additional costs are communicated to the customer and must be borne by him. The customer can also decide not to have the further work carried out. The remuneration is then based on the effort made up to this point in time.
6.1. All payments are to be made without any deduction within seven days of receipt of the invoice from Kenner Soft. The date of receipt of the payment by Kenner Soft is decisive. Offsetting against counterclaims is only permitted if the claims are undisputed.
6.2. If the advance payments, security deposits or other payments are not made after a reasonable grace period of two weeks, Kenner Soft can terminate the contract without notice. The assertion of further rights is reserved, all claims by Kenner Soft are due immediately in one amount.
6.3. Kenner Soft reserves the right to collect down payments of 30% of the agreed or estimated contract amount immediately after placing the order. Contracts with an order value of less than 1,000.00 EUR are only concluded with at least 50% prepayment.
6.4. If the customer does not pay the invoice amount agreed on the invoice, Kenner Soft is entitled to charge a default interest of 8% above the base rate.
6.5. Kenner Soft is entitled to assign open claims to third parties without the customer’s consent. If a deterioration in the customer’s financial situation is suspected, Kenner Soft is entitled to demand advance payment, bank guarantees or other security.
6.6. The customer must submit any objections to invoices from Kenner Soft in writing to Kenner Soft within four weeks of receipt of the invoice. After the deadline, objections can only be asserted if the customer was prevented from observing the deadline through no fault of his own.
6.7. A proper invoice is generally sent by email, provided that nothing else is agreed in the contract. If the customer requests an extraordinary invoice by post, Kenner Soft will charge an additional fee in the amount of EUR 5 billed to the customer.
6.8. Due to a defect, the customer can only withhold payments in the proportion of the defect.
7.1. The services rendered are paid in euros. The prices do not include the statutory sales tax and are specified in the contract, in writing or in electronic form.
7.2. If remuneration is agreed based on the time spent, it is settled on the basis of the activity reports on the basis of the actual time spent, which is corrected according to the qualifications of the employee deployed based on internal experience (to indirectly correct the hourly rate for the employment of the less qualified specialists accordingly).
7.2.1. If it is foreseeable that the actual costs will exceed those estimated in writing by Kenner Soft by more than twenty (20) percent, Kenner Soft will immediately inform the customer of the higher costs.
7.2.2. Travel times are calculated as 50%, on weekends and on public holidays 100% as working hours.
7.2.3. At the request of the customer, the remuneration for the services of Kenner Soft can have a maximum limit. In this case, the customer is aware that the services cannot be provided in full, in the desired form or level of detail.
7.2.4. Kenner Soft adjusts the prices every six months to the general cost development. If no agreement can be reached, both contracting parties can extraordinarily terminate the contract with effect from the time of the price increase.
7.3. If a fixed remuneration has been agreed, Kenner Soft is entitled to advance payment and an appropriate minimum payment on account – at the start of the contract 30%, for the first partial delivery 20%, for the second partial delivery 20% and the remaining 30% for the complete delivery of the service, if not otherwise contractually agreed.
7.3.1. In the case of fixed remuneration, Kenner Soft is entitled to a reasonable increase in the originally agreed remuneration if, due to incomplete or incorrect information or improper cooperation by the customer, the workload to be performed is significantly higher than the estimates that Kenner Soft used when the contract was concluded.
7.4. Unless otherwise agreed with the customer, all expenses, as well as Travel expenses, incurred by Kenner Soft as part of the order are to be borne by the customer and will be passed on at cost price.
7.5. If the service is provided at the customer’s request outside of Kenner Soft’s business hours (Monday-Friday, 8:00 a.m. – 5:00 p.m. CET, except public holidays), the services will be billed at double the hourly rate.
8.1. The customer is obliged to support Kenner Soft to the best of his ability in the fulfilment of its contractually owed services in a timely manner and free of charge for Kenner Soft, insofar as this is necessary, in particular in obtaining the necessary permits and information, in providing the necessary access data, the means of communication and connections as well as the hardware and software, when setting up secure remote access and making the necessary infrastructure and premises accessible.
8.2. The customer supports Kenner Soft if any questions arise in the course of the project, in determining the requirements and service descriptions (specifications), in providing the required information, images, texts and documents. The customer checks the completeness of the task, which must be recorded in writing after all the details have been discussed before they are carried out. The customer supports Kenner Soft in carrying out reviews and quality assurance of the services.
8.3. Content to be provided by the customer must be made available in a common, immediately usable, digital standard format. If the content needs to be converted, optimized or further processed into a different format or display, the customer will assume the costs incurred for this at the usual hourly rate of Kenner Soft.
8.4. For proper error detection and error correction it is assumed that the customer has not interfered with the application, the infrastructure or its configurations or has not changed them, as well as that they are operated properly. In particular, it is necessary that the error is sufficiently described by the customer (including an indication of the error message) and, as far as possible, is proven with screenshots. All recognisable defects and damage must be reported immediately.
8.5. Cooperation services of the customer are always the main service obligations and must be carried out by the customer at his own expense. If the customer does not provide the necessary cooperation, not in time or not in the agreed manner, the resulting consequences, such as delays or additional work to be borne by the customer.
8.6. The customer is responsible for the safe and secure storage of all confidential information, user IDs, passwords or access codes.
8.7. The customer is not entitled to hand over the user IDs, passwords or access codes provided to Kenner Soft to third parties.
8.8. The facilities, documents, systems, infrastructures and other materials made available to the customer by Kenner Soft during the project remain the property of Kenner Soft.
8.9. In connection with a commissioned project, the customer will only place orders with other agencies or service providers after consultation and in agreement with Kenner Soft.
8.10. If Kenner Soft deems this necessary, the customer provides a test environment that enables Kenner Soft to provide quality services.
8.11. Use of the Kenner Soft services by third parties requires a separate written agreement. The customer has no claim that Kenner Soft permits use by third parties.
8.12. After the service has been performed, Kenner Soft is entitled to destroy the documents received from the customer. At the customer’s request, Kenner Soft will return the documents.
9.1. The contracting parties shall each nominate one and only one project manager within one week of the order being placed, who will be responsible and expert for the fulfilment of the contractual obligations for the named contracting party.
9.2. The contracting parties must inform each other immediately of any changes in the named persons. The resulting additional effort must be borne by each responsible contracting party at their own expense (e.g. the customer or the contractor bear the costs for the instruction of the new project manager themselves, the customer also bears the costs for new requirements, different perspectives or clarification of the old requirements, represented by the new project manager).
9.3. The project managers agree on progress, problems and obstacles in the execution of the contract at regular intervals in order to be able to intervene if necessary.
9.4. If necessary, the contact person on the customer side can involve additional qualified employees for the purpose of obtaining information, but is solely responsible for making decisions on the customer side. If the customer does not provide a contact person or does not do so sufficiently, the corresponding tasks will be carried out by a separate employee of Kenner Soft. The cost for associated additional work must be borne by the customer.
9.5. The project managers from both sides are responsible for the quality assurance of the services and works owed. If required, the customer’s project manager can involve additional qualified staff for these purposes.
9.6. Quality assurance on the part of Kenner Soft is carried out by qualified testers who are determined internally from the beginning of the project. If necessary, they can take part in the meetings with customers.
9.7. The activities in the areas of project management and quality assurance are always part of the services and are billed at the usual hourly rate.
10.1. Kenner Soft is entitled to partial deliveries or partial services. If necessary, these will be presented for acceptance. These include: self-contained project phases to fulfil the specific services (e.g. conception, design, programming, quality assurance, introduction), self-contained and thus functional parts (e.g. programming of the individual modules or functions with software that is already in use or planned to be used), self-contained documents or parts of documents (e.g. preparation of evaluations, studies, presentations).
10.2. The customer will immediately carry out any acceptance or partial acceptance of the services provided by Kenner Soft. Kenner Soft is entitled to participate in every acceptance.
10.3. At the request of Kenner Soft, the customer is also obliged to accept drafts and interim results, provided that these can be judged sensibly on their own. The acceptance must be carried out within a period of one week. The customer is not entitled to refuse acceptance due to minor defects.
10.4. If the result is not accepted, the customer shall provide Kenner Soft with a list of all defects hindering acceptance in written or electronic form. After a reasonable period of time, Kenner Soft has to provide a defect-free and acceptable version of the service.
10.5. If the customer does not reject or otherwise react to the acceptance within a period of two weeks after receipt of the notification of readiness for acceptance, the performance shall be deemed to have been accepted.
10.6. The acceptance is deemed to have taken place as soon as the customer has started using the services and deliveries from Kenner Soft.
10.7. Complaints on the part of the customer during acceptance must be recorded in writing and signed by both contracting parties.
10.8. If the customer refuses acceptance, he will be in default of acceptance. In the event of a delay in acceptance, Kenner Soft has the right to either demand acceptance of all or part of the contract or withdrawal from the contract or demand compensation for non-performance.
10.9. Requests for changes after approval represent a change in service and deemed as a new requirement.
11.1 In cases of gross negligence and simple negligence in the violation of essential contractual obligations as well as in the assertion of damages instead of performance, Kenner Soft is liable for the typically occurring, foreseeable damages. Otherwise, liability for slight negligence is excluded.
12.2 The liability arising from the assumption of a guarantee or a procurement risk, from default, due to damage to life, body and health, according to the Product Liability Act and mandatory statutory provisions remains unaffected.
11.3 The liability of Kenner Soft is limited to the amount of the order value (own contribution excluding advance work and material).
11.4 The above regulations also apply to the personal liability of employees, representatives and vicarious agents.
11.5 Kenner Soft is not responsible for materials and content provided by the customer. Kenner Soft is not obliged to check the materials and content for possible legal violations but will inform the customer in good time of any significant risks that it consider to be easily recognizable.
11.6 In the event that rights of third parties, in particular copyrights and/or trademark rights, are infringed by the materials and content provided by the customer, the customer alone is liable. The customer releases Kenner Soft from all claims by third parties due to such legal violations.
11.7 The customer is advised that email is an open medium. Kenner Soft assumes no liability for the confidentiality of emails. At the customer’s request, communication can be carried out using other media.
11.8. The customer is responsible for backing up his data (backup) unless it is expressly agreed to be a part of the service of Kenner Soft. This includes, in particular, the backup of its databases to be maintained by Kenner Soft. Insofar as Kenner Soft creates a backup of the data for its own protection, this does not result in a guarantee declaration or a legal claim of the customer to proper execution. Such a self-created backup will be deleted immediately after the completion of the work.
11.9. In the event of a loss of data for which Kenner Soft is responsible, Kenner Soft is only liable for the reproduction and restoration costs that would have been incurred if the data had been properly backed up. Kenner Soft is not liable for the loss of data if the damage is due to the fact that the customer has failed to carry out regular data backups and thereby ensure that lost data can be restored with reasonable effort.
11.10 Liability for lost profit is excluded.
11.11 Liability under the Product Liability Act remains unaffected.
11.12 Kenner Soft is not liable for errors and malfunctions in open source systems and third-party programming used by customers, even in cases where these impair the services of Kenner Soft. Nor for any requirements expected by the customer, which Kenner Soft has not expressly confirmed.
11.13. If Kenner Soft assumes a guarantee for certain properties of the contractually owed service, such a guarantee is only binding for Kenner Soft if it has been declared in writing.
11.14. The limitation or exclusion of liability under these terms and conditions also applies to the personal liability of the institutions of Kenner Soft, employees and other representatives and vicarious agents of Kenner Soft.
11.15. All claims for damages expire twelve months from the start of the statutory limitation period.
12.1. After full payment of the total remuneration, Kenner Soft grants the customer a non-exclusive, non-transferable, non-sublicensable, temporally and spatially unlimited right of use to the copyrighted works, unless otherwise agreed electronically or in writing. The work created by Kenner Soft may only be used for the type of use agreed upon in the order and the agreed purpose to the agreed extent. Other or more extensive uses are only permitted with the express consent and may involve additional work (e.g. different framework conditions for software can set new, stricter requirements).
12.2. The resulting copyrighted works can be further processed without the consent of Kenner Soft.
12.3. Since the copyright is not transferable, the copyright of the resulting works remains with Kenner Soft. Kenner Soft is entitled to include references to the authorship in suitable places on the works created by Kenner Soft, which may not be removed without the consent of Kenner Soft.
12.4. Without a separate written agreement, Kenner Soft is not obliged to publish intermediate results, drafts, layouts, source files, etc. leading to contractual project services.
12.5. Insofar as the service of Kenner Soft contains open source components, the transfer of rights takes place only to the extent and in accordance with the respective open source license. Kenner Soft expressly points out that the open-source components may only be used, processed and subject to disposal within the framework of the respective license.
12.6. Suggestions by the customer and his other cooperation have no influence on the amount of the remuneration and do not create any co-copyrights.
13 Dates and Deadlines
13.1 Force majeure, industrial disputes, government actions and other unforeseen circumstances outside of the control of Kenner Soft allow for an extension of the deadlines and change of service dates for the duration of the condition and to the extent of their effect on the performance obligations.
13.2. Kenner Soft is not responsible for delays in performance due to circumstances in the customer’s area of responsibility, breach of his duty to cooperate and force majeure. They entitle Kenner Soft to postpone the provision of the relevant services for the duration of such circumstances plus a reasonable start-up time.
13.3. All specified performance dates and/or deadlines are guidelines and are only binding if they have been designated as binding in writing by both contracting parties.
13.4. If Kenner Soft culpably falls behind with a binding delivery or service date by more than two weeks, the customer may for the period of delay deduct compensation of 0.8% of the value of the delivery or service per complete week of delay, but no more than 8% of total Value, as lump-sum compensation, unless lesser damage can be proven. This means that all claims for damages due to delay are settled. Any further liability in the event of default is excluded.
14.1. Defects are to be reported in writing or electronically in a form specified by Kenner Soft by a comprehensible description of the error symptoms, as far as possible, proven by written or electronic recordings, video recordings, screenshots or other illustrative documents. The notification of defects is intended to enable the error to be reproduced.
14.2. If there is a defect in the service, Kenner Soft is entitled to provide supplementary performance within a reasonable period of time, either by repairing it or by making a new delivery.
14.3. Kenner Soft is entitled to at least two attempts at improvement.
14.4. If the supplementary performance fails, the customer can choose to reduce the price of this service or part thereof or withdraw the award of the contract with regard to defective service or part thereof. This also applies if Kenner Soft refuses supplementary performance or the supplementary performance is unreasonable for the customer. The other services are not covered by this withdrawal as long as these or their parts can be used independently by the customer.
14.5. Further claims by the customer, in particular for consequential damage caused by defects, are fundamentally excluded. This does not apply in the event of intent, breach of essential contractual obligations by Kenner Soft and gross negligence. This also does not apply in the case of injury to life, body or health.
14.6. Claims for defects with regard to the created or adapted software do not apply if the customer has made changes himself or has had them made by third parties unless these changes did not affect the origin of the defect.
14.7. If Kenner Soft has determined after reporting a defect that there is no defect, all costs incurred as a result are to be borne in full by the customer. The cost calculation is based on the usual hourly rate.
14.8. The deficiencies resulting from slight or gross negligence on the part of Kenner Soft will be completely remedied at the expense of Kenner Soft. Defects or errors that arose on the basis of gaps in the specification or incomplete information will be corrected entirely at the customer’s expense. Defects caused by the use of third-party programming, conflicts with the existing third-party programming or as a result of integration with third-party software must be remedied entirely at the customer’s expense. All other defects are billed at an hourly rate reduced by fifty (50%) percent.
14.9. The limitation period for claims for defects is twelve months from acceptance.
15.1. The customer is responsible for the content of his Internet pages, online shops, web applications and other software as well as for the content provided by the customer. In this respect, the customer exempts Kenner Soft from all costs and damages when asserting third party claims. In the event of a legal dispute, the customer bears all related costs. Kenner Soft is not obliged to check the content for possible legal violations.
15.2. The software supplied or made available by Kenner Soft is free of third-party rights that prevent use in accordance with the contract. If there are legal defects, Kenner Soft is entitled to take legal measures to remedy the violation of the rights of third parties or to change or replace the services in such a way that third-party rights are no longer violated. This assumes that the owed functionality of the services is not significantly impaired.
16.1. Provided that the requirements for data protection and confidentiality have been met, Kenner Soft is entitled to name the service provision on which the contract is based as a reference project, naming the customer. Furthermore, Kenner Soft has the right to use the brand names, names, logo and slogans of the customer in connection with the reference project at all types of events and in all types of publications and media.
17.1. The contracting parties undertake to treat as strictly confidential all knowledge of business and trade secrets of the other contracting party that they gain knowledge of in connection with this agreement and not to make them available to unauthorized third parties.
17.2. This obligation continues for a period of two years after the termination of this contract. The obligation to protect personal data is unlimited in time.
17.3. The transfer to third parties, who are subject to a legal obligation of confidentiality, does not require consent. The transfer to employees or vicarious agents who need the information for their work in the performance of contractual services does not require consent. However, the contracting parties ensure that they are bound by corresponding confidentiality obligations.
17.4. The prohibition of disclosure does not apply if the contracting parties are obliged to disclose the information by law or by judicial or official orders. The other contracting party must be informed in advance of such an incident.
17.5. Kenner Soft operates an electronic customer area that the customer can access. The customer receives an individual password with which access to the customer area is possible. The customer may not reveal the password to third parties and must keep it carefully to prevent misuse. The customer is obliged to inform Kenner Soft immediately if the password has been lost or if he becomes aware that unauthorized third parties have gained knowledge of the password.
18.1. The customer may only transfer rights and obligations from this contract to third parties with the prior written consent of Kenner Soft. Consent may only be refused for an important reason.
19.1. Both contracting parties undertake not to hire or otherwise employ employees of the other contracting party or its subcontractors or other vicarious agents for the duration of the cooperation between the contracting parties and for a period of one year after the end of the cooperation.
20.1. If the customer unjustifiably withdraws from an order placed, all costs associated with the fulfilment of the order and actually incurred are to be paid in full regardless of the degree of completion of the required services.
21.1. Individual software is specifically developed for use by a customer or company. These conditions also apply to all deliveries and services in connection with the creation and provision of individual software by Kenner Soft.
21.2. The scope of services is described in detail in the contract. The place of performance is the location of Kenner Soft unless otherwise agreed. The customer will confirm the delivery of the service in writing. The software is provided electronically.
21.3. Application documentation (user manual) is only created and provided if it has been agreed in writing in the contract. Online help is made available to the customer if this has been agreed in writing in the contract.
21.4. The source code is only made available to the customer if it has been agreed in writing or electronically.
21.5. The customer is responsible for the implementation unless otherwise specified in the contract. Kenner Soft is ready to support the customer with the implementation or to carry it out completely. All services rendered in this context are remunerated according to the time spent unless otherwise agreed. In this case, the acceptance of the implementation must be confirmed in writing by the customer. Complaints on the part of the customer regarding the implementation must be recorded in writing.
22.1. Standard software is understood to be software systems that cover a clearly defined area of application and can be purchased as prefabricated products. These were developed for the needs of a majority of customers in the market and not specifically by the contractor for the client. Kenner Soft online offer is aimed exclusively at commercial customers.
22.2. Kenner Soft creates free and proprietary standard software, the licenses are included with the respective products. A uniform End User License Agreement (EULA) applies to proprietary standard software from Kenner Soft.
If the provisions of these terms and conditions overlap with the license provisions, the license provisions take precedence. Service descriptions can be found in the corresponding software descriptions.
22.3. The liability of Kenner Soft when using free and proprietary software from Kenner Soft is limited to intent and gross negligence.
22.4. Proprietary software, e.g. Software extensions, modules, plug-ins etc. are made available to the customer for a fee and are protected by copyright.
22.5. Proprietary software may include third party open-source software. For such software, the customer receives exclusively the rights of use that result from the license conditions that apply to this open-source software.
23.1. Kenner Soft maintains a complex IT infrastructure, support workstations, development environments, a ticket system, a versioning system, remote maintenance software and other IT automation solutions in order to ensure continuous and high-quality customer support.
23.2. A Software Maintenance and Support Agreement (SMSA) must be concluded in writing for the provision of all deliveries and services in connection with the maintenance and support of software by Kenner Soft.
23.3. Without a written SMSA, Kenner Soft does not provide or owe any maintenance or support services.
23.4. Kenner Soft’s business hours are Monday through Friday, 8 a.m. to 5 p.m. (CET). No business hours on Saturday, Sunday, Germany-wide public holidays, Christmas Eve and New Year’s Eve.
23.5. Provided that a Software Maintenance and Support Agreement has been concluded in writing, Kenner Soft is obliged to respond to a customer support request within the contractually agreed response time, by email or by telephone. The scope of the service to be provided by Kenner Soft is specified in the concluded SMSA.
24.1. All agreements between the contracting parties are contained in the offer, these terms and conditions and any attached annexes in written or electronic form. There are no further agreements, in particular no verbal side agreements have been made that have not been confirmed in writing or in electronic form.
24.2. Changes and additions to the agreement must always be made in writing to be effective.
This also applies to the change or cancellation of the written form clause itself.
24.3. German law applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
24.4. Exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the location of the main office of Kenner Soft, provided the customer is a merchant or a legal entity under public law.
24.5. Unless otherwise agreed, the place of performance is the headquarters of Kenner Soft.
24.6. Should a provision be wholly or partially ineffective or lose its legal validity later, this shall not affect the validity of the remaining provisions. The same applies if a regulatory loophole should emerge.
24.7. Instead of the ineffective or unenforceable provisions, an appropriate provision should apply, which would come as close as possible to the will of the contracting parties and the meaning and purpose of the contract.