GENERAL CONDITIONS GRAFI OFFSHORE B.V.
The general conditions consist of a general part and a part with specific conditions for IT activities (software development and the use and maintenance of software).
Article 1: General
1.1 These general conditions apply to the conclusion, content, and performance of all agreements between a natural or legal person (hereinafter referred to as the client) and Grafi Offshore B.V. (hereinafter referred to as the supplier).
1.2 General (purchasing) conditions of the client shall only apply if it is expressly and in writing agreed that they will apply to the agreement between the parties, excluding these general conditions.
1.3 If any provision of the general conditions is or becomes invalid, the other provisions of these general conditions shall remain in full force.
Article 2: Quotations, Offers
2.1 Submitting a price quote, budget, pre-calculation, or similar communication, with or without a quotation, does not oblige the supplier to conclude an agreement with the client.
2.2 Offers from the supplier are always non-binding and can only be accepted without deviation. An offer is considered rejected if not accepted within one month.
Article 3: Cancellation and Termination of the Agreement
3.1 The client is entitled to cancel an agreement before the supplier commences the execution of the agreement, provided that the client compensates the supplier for any damage caused by this cancellation. This damage includes the supplier’s losses, lost profits, and the costs already incurred by the supplier for preparation.
3.2 Each party is only entitled to terminate the agreement if the other party (always following a proper and as detailed as possible written notice of default setting a reasonable period for the cure of the breach) culpably fails to meet essential obligations arising from the agreement.
3.3 If an agreement that, by its nature and content, does not end by completion, has been entered into for an indefinite period, either party can terminate it after proper consultation and by providing reasons in writing. If no specific notice period has been agreed upon, a reasonable period should be observed. Termination shall never entitle the parties to any compensation.
3.4 Each party can terminate the agreement in writing, either in whole or in part, without prior notice, if the other party is granted a (temporary) suspension of payments, if a bankruptcy is requested with respect to the other party, or if the other party’s business is liquidated or terminated for any purpose other than the merger or reconstruction of businesses. The supplier is never obligated to reimburse any funds already received, nor is the supplier obligated to pay damages due to this termination. In the event of the client’s bankruptcy, the right to use the software provided to the client will expire by operation of law.
3.5 If, at the time of termination as referred to in Article 3.2, the client has already received performances in execution of the agreement, these performances and the related payment obligations will not be subject to rescission unless the client proves that the supplier is in default with regard to those performances. Amounts billed by the supplier prior to termination in connection with what the supplier properly executed or delivered under the agreement will continue to be due and payable, taking into account the preceding sentence.
Article 4: Price
4.1 All prices specified are exclusive of Value Added Tax (VAT) and other government-imposed levies.
4.2 The price quoted by the supplier for the service to be provided applies only to the service in accordance with the agreed specifications.
4.3 In the case of a periodic payment obligation by the client, the supplier is entitled to adjust the applicable prices and rates in writing with at least three months’ notice. If the client does not agree to such an adjustment, the client is entitled to terminate the agreement within 30 days of being notified of the adjustment.
4.4 In the case of composite offers, there is no obligation to deliver a part of the total performance at the price stated for that part in the offer, or a proportionate part of the overall price.
4.5 Notwithstanding the provisions in the preceding paragraphs of this Article, the prices and rates of the supplier are automatically adjusted annually in January based on the inflation correction figure as determined by the CBS for the previous year.
Article 5: Confidential Data and Privacy
5.1 The client and the supplier both guarantee that any data received from the other party, and which is known or should be known to be of a confidential nature, will remain confidential unless there is a legal obligation to disclose that data. The party receiving the confidential data will only use it for the purpose for which it was provided. Data will in any case be considered confidential if it is marked as such by one of the parties.
5.2 The client indemnifies the supplier against any claims from individuals whose personal data is recorded or processed in the context of a personal registration held by the client or for which the client is otherwise legally responsible, unless the client can prove that the facts underlying the claim are exclusively attributable to the supplier.
Article 6: Payment Term
6.1 Unless otherwise agreed, the client must pay the price and other amounts payable under the agreement within 14 days from the invoice date, without any discount, setoff, or suspension being permitted. The client is in default without any notice from the supplier being required if payment is not made on time.
6.2 After delivering the first part, the supplier is entitled to request payment of the costs for the entire delivery, alongside the payment for this first part, if the agreement provides for the delivery in parts.
6.3 Regardless of the agreed payment terms, the client is at all times obliged to provide security for the payment of the amounts payable to the supplier under the agreement at the supplier’s first request. The offered security must be such that the claim, including any interest and costs, is adequately secured, and that the supplier can recover without difficulty. If the provided security is insufficient at any later date, the security must be supplemented at the first request of the supplier.
6.4 If the client does not pay on time as referred to in paragraph 1 of this Article, the client will, without the need for a reminder or notice of default by the supplier, be liable for the statutory commercial interest, or if applicable, the statutory interest, on the amount due, starting from the invoice date.
6.5 In addition to the amount due and the interest accrued thereon, in case of late payment as referred to in paragraph 1 of this Article, the client will be liable for full compensation for both extrajudicial and judicial costs.
Article 7: Retention of Title and Rights, Right of Retention
7.1 All items delivered by the supplier to the client remain the property of the supplier until all amounts due from the client for the items delivered or to be delivered under the agreement, as well as all other amounts due to the client due to failure to meet the payment obligation, are fully paid to the supplier.
7.2 Any rights are only granted or transferred to the client, as the case may be, on the condition that the client pays the agreed fees on time and in full.
7.3 The supplier may retain items, products, intellectual property rights, data, documents, data files, and (intermediate) results of the services provided by the supplier under the agreement, notwithstanding any obligation to transfer the same, until the client has paid all amounts due to the supplier.
Article 8: Risk
The risk of loss, theft, or damage to items, products, software, or data that are the subject of the agreement shall pass to the client when they are placed in the actual control of the client or a helper of the client.
Article 9: Delivery Period
9.1 A delivery term specified by the supplier has, unless expressly and in writing stated that it is an ultimate term, only an indicative nature. The supplier will only be in default after the client has declared the supplier in default.
9.2 The supplier’s commitment to an agreed or ultimate delivery term is canceled if the client requests a change in the work specifications.
9.3 In executing the agreement, the client is required to do everything that is reasonably necessary or desirable to ensure a timely delivery by the supplier.
9.4 If the client does not comply with the previous provisions of this Article or the provisions of Section 6.3, an agreed ultimate delivery term is no longer binding, and the client is in default without any written notice of default from the supplier being required. The supplier is then, without prejudice to the rights granted by law, entitled to suspend the execution of the agreement until the client has remedied the default. After that, the supplier will execute the agreement within a reasonable period.
Article 10: Content and Modification of the Agreement
The client bears the risk of misunderstandings concerning the content and implementation of the agreement if they are caused by the supplier not, not correctly, not timely, or not completely receiving specifications or other communications made orally by or on behalf of the client, or through any technical means such as the telephone, the computer, and similar transmission media.
Article 11: Intellectual or Industrial Property Rights
11.1 All intellectual and industrial property rights in software, data files, equipment, or other materials developed or made available by the supplier pursuant to the agreement, as well as preparatory material thereof, shall solely remain vested in the supplier, its licensors, or its suppliers. The client is granted only the user rights explicitly granted in these terms and conditions and by law. Any other or broader right of the client to reproduce software, websites, data files, or other materials is excluded. The client’s right to use is non-exclusive and non-transferable to third parties.
11.2 If, contrary to the previous paragraph, the supplier is willing to transfer intellectual or industrial property rights, such commitment can only be made in writing and explicitly. If parties expressly agree in writing that intellectual or industrial property rights in specific software, data files, equipment, or other materials developed for the client will transfer to the client, it will not affect the supplier’s right to use and exploit the elements, designs, documentation, works, programming languages, and the like that underlie that development, without any limitation, either for itself or for third parties. The transfer of intellectual or industrial property rights shall only apply if it is expressly agreed in writing.
11.3 The client is not allowed to remove or change any indication of confidentiality or intellectual or industrial property rights from software, websites, data files, equipment, or materials.
11.4 The supplier is allowed to take technical measures to protect software or in connection with the agreed limitations in the duration of the right to use the software. The client is not allowed to remove or circumvent such a technical measure. If security measures result in the client being unable to make a backup copy of software, the supplier will, upon request, provide a backup copy.
11.5 Unless the supplier provides the client with a backup copy of the software, the client may make a single backup copy of the software, which may only be used to protect against involuntary loss or damage. The installation of the backup copy will only take place after involuntary loss or damage. A backup copy must be provided with the same copyright labels and indications as present on the original copy (see paragraph 3).
11.6 Subject to the other provisions of these general conditions, the client is entitled to correct errors in software provided by the supplier that are necessary for the intended use of the software. When these general conditions refer to “errors,” this means substantial non-compliance with the functional or technical specifications that the supplier has communicated in writing, and, in the case of custom software and websites, the functional or technical specifications that have been expressly agreed upon in writing between the parties. There is only an error if the client can demonstrate it and it is reproducible. The client is obliged to immediately report errors to the supplier.
11.7 The supplier indemnifies the client against any third-party legal action based on the assertion that software, websites, data files, equipment, or other materials developed by the supplier infringe an intellectual or industrial property right in the Netherlands, provided that the client immediately informs the supplier in writing of the existence and content of the legal action and leaves the handling of the case, including the conclusion of any settlements, entirely to the supplier. For this purpose, the client will grant the necessary powers of attorney, information, and cooperation to the supplier. This indemnity obligation expires if the alleged infringement is related to (i) materials provided by the client for use, processing, editing, or incorporation, or (ii) changes made by the client to the software, websites, data files, equipment, or materials or changes made by third parties on behalf of the client. If it is irrevocably established in court that software, websites, data files, equipment, or other materials developed by the supplier infringe any intellectual or industrial property right belonging to a third party, or if, in the opinion of the supplier, there is a reasonable possibility of such infringement, the supplier will, if possible, ensure that the client can continue to use the delivered item or a functionally equivalent alternative item, for example by modifying the infringing parts or by acquiring a right of use for the client. If the supplier believes that this is not possible, or if only possible under conditions that the supplier deems unreasonable, the supplier will take back the delivered item against a credit for the acquisition costs, reduced by a reasonable user fee. The supplier will only make a choice in this context after consultation with the client. Any other or further liability or indemnification obligation of the supplier for infringements of intellectual or industrial property rights of a third party is entirely excluded, including the supplier’s liability and indemnification obligations for infringements caused by the use of the delivered software, websites, data files, equipment, and materials (i) in a non-modified form by the supplier, (ii) in connection with items or software not provided or supplied by the supplier, or (iii) in a manner other than that for which the equipment, software, websites, data files, and other materials are developed or intended.
11.8 The client guarantees that no rights of third parties oppose making equipment, software, materials intended for websites, data files, or other materials available to the supplier with the aim of using, editing, processing, or incorporating (e.g., in a website). The client will indemnify the supplier against any action based on the claim that making such items available, using, editing, processing, installing, or incorporating infringes any right of third parties.
Article 12: Ownership of Production Means, etc.
12.1. All items manufactured by the supplier, such as data carriers, computer software, data files, and peripheral equipment, remain the property of the supplier, even if they are listed as a separate item in the quotation, offer, or invoice.
12.2. The supplier is not obliged to deliver the items referred to in paragraph 1 to the client.
12.3. The supplier is not obliged to store the items referred to in the first paragraph of this article for the client. If the supplier and the client agree that these items will be stored by the supplier, this will be done for a maximum duration of one year, and the supplier does not guarantee their suitability for repeated use.
Article 13: Force Majeure
Failures of the supplier in the performance of the agreement cannot be attributed to the supplier if they are not due to their fault, or do not come under their responsibility as stipulated by law, the agreement, or commonly accepted practices.
Article 14: Supplier’s Liability and Indemnification
14.1 The total liability of the supplier for attributable failures in the performance of the agreement is limited to compensation for direct damages up to a maximum of the amount agreed upon for that agreement (excluding VAT). If the agreement is mainly a long-term agreement with a duration of more than one year, the agreed price for the agreement is set as the total of the fees (excluding VAT) agreed upon for one year.
14.2 The supplier’s liability for indirect damages, consequential damages, lost profits, missed savings, diminished goodwill, damage due to business interruption, damage resulting from claims by the client’s customers, mutilation or loss of data, damage related to the use of items, materials, or third-party software prescribed by the client to the supplier, damage related to the involvement of suppliers prescribed by the client to the supplier, and all other forms of damage not mentioned in paragraph 1, under any circumstances, is excluded.
14.3 The limitations mentioned in the preceding paragraphs of this article are void if and to the extent that the damage is the result of intent or gross negligence of the supplier or its management.
14.4 The supplier’s liability for attributable failures in the performance of an agreement arises in all cases only if the client immediately and properly notifies the supplier in writing of the failure, setting a reasonable period for the rectification of the failure, and the supplier continues to fall short of its obligations even after that period. The notice of default must contain as complete and detailed a description of the failure as possible, allowing the supplier to respond adequately.
14.5 A condition for the emergence of any right to compensation is that the client reports the damage to the supplier in writing as soon as possible after its occurrence. Any claim for compensation against the supplier expires simply by the passage of 12 months after the emergence of the claim.
14.6 The client indemnifies the supplier from all claims by third parties for product liability as a result of a defect in a product or system delivered by the client to a third party, which also included equipment, software, or other materials supplied by the supplier, except if and to the extent the client can prove that the damage was caused by that equipment, software, or other materials.
14.7 The provisions of this article also apply to the benefit of all (legal) persons employed by the supplier in the execution of the agreement.
Article 15: License
By placing/making information and other materials (including the client’s name and logo) on the website or otherwise providing them to the supplier, the client automatically grants an irrevocable license to the supplier. This license applies, among other things, to placing the name and logo of the client on the supplier’s website.
Article 16: Execution
16.1 The supplier will make every effort to provide services with care, as specified in writing between the client and supplier. All supplier services are provided on the basis of a reasonable effort, unless explicitly agreed otherwise in the written agreement between the client and supplier.
16.2 If it is agreed that the services will be provided in phases, the supplier may postpone the start of the services belonging to a phase until the client has approved the results of the preceding phase in writing.
16.3 Only if this is explicitly agreed in writing is the supplier obliged to follow timely and reasonable instructions from the client in the provision of services. The supplier is not obliged to follow instructions that change or supplement the content or scope of the agreed-upon services; however, if such instructions are followed, the corresponding work will be compensated in accordance with Article 17.
16.4 If an agreement for services has been entered into for execution by a specific person, the supplier is always entitled to replace this person with one or more other persons with the same qualifications, after consulting the client.
16.5 In the absence of an explicitly agreed-upon invoicing schedule, all amounts relating to services provided by the supplier are due once per calendar week in arrears.
Article 17: Amendments and Additional Work
17.1 If the supplier, at the request or with the prior consent of the client, has performed work or other services that are outside the scope or extent of the agreed-upon service, these tasks or services will be reimbursed by the client at the supplier’s standard rates. Additional work is also considered to occur when system analysis, design, or specifications are expanded or modified. The supplier is never obligated to comply with such a request and may require a separate written agreement for it.
17.2 The client acknowledges that, due to the work or services mentioned in the first paragraph of this article, the agreed or expected completion time of the service, as well as the mutual responsibilities of the client and the supplier, may be affected. The occurrence of additional work during the execution of the agreement is never a basis for the client to terminate or dissolve the agreement.
17.3 If a fixed price has been agreed upon for the service, the supplier will, upon request, inform the client in writing in advance about the financial consequences of such additional work or services.
Article 18: Applicable Law
The agreement between the supplier and the client is governed by Dutch law. The applicability of the 1980 Vienna Sales Convention is excluded.
DEVELOPMENT OF SOFTWARE
The provisions outlined in this chapter, “Development of Software,” apply in addition to the General Terms and Conditions and the specific provisions from the chapter “Service” whenever the supplier is commissioned by the client to develop software and potentially install it. The chapter “Use and Maintenance of Software” also applies to this software unless otherwise specified in this chapter. The rights and obligations mentioned in this chapter solely pertain to computer software in a form readable by a data processing machine and recorded on material that is readable by such a machine, along with the accompanying documentation. Where this chapter refers to software, it also includes (mobile) websites.
Article 19: Development of Software
19.1 If no specifications or design of the software to be developed are provided to the supplier at the time of entering the agreement, the parties will jointly specify in writing what software will be developed and how it will be done. The supplier will carry out the development of the software with care based on the data provided by the client, for the accuracy, completeness, and consistency of which the client is responsible. If the parties have agreed on a development method that is characterized by prioritization of the design and/or development of parts of the software to be determined during the performance of the agreement, this prioritization will be determined in consultation between the parties.
19.2 The supplier is entitled but not obligated to examine the accuracy, completeness, or consistency of the data, specifications, or designs made available to him, and in case of any shortcomings, to suspend the agreed work until the client remedies these deficiencies.
19.3 Regardless of the provisions in Article 11, the client only obtains the right to use the software within their own company or organization. The client may only use the software on the processing unit and for the number or type of users or connections for which the usage right has been granted, as specified in the agreement. Unless otherwise agreed, the initial processing unit on which the software is first used by the client and the number of connections connected to that processing unit at the time of initial use are considered the processing unit and the number of connections for which the usage right has been granted. In case of a malfunction of the mentioned processing unit, the software can be used on another processing unit during the malfunction. The usage right may apply to multiple processing units if explicitly stated in the agreement. The usage right is non-transferable. The client is not allowed to sell, rent, sublicense, alienate, or in any other way provide limited rights to the software to a third party, either on-site or remotely, without the written consent of the supplier, even if the third party only uses the software on behalf of the client. The source code of the software and the technical documentation produced during the development of the software will not be made available to the client, even if the client is willing to pay a financial fee for such provision. The client acknowledges that the source code is of a confidential nature and contains trade secrets of the supplier.
Article 20: Delivery, Installation, and Acceptance
20.1 The supplier will deliver and install the software and/or files to the client to the greatest extent possible in accordance with the written specifications. Installation will only occur if it has been agreed upon in writing. In the absence of specific agreements, the client will install the software, set it up, configure it, fine-tune it, and make any necessary adjustments to the equipment and operating environment used. Unless expressly agreed otherwise, the supplier is not obliged to perform data conversion.
20.2 If an acceptance test has been agreed upon, the testing period is fourteen days after delivery or, if installation to be performed by the supplier has been agreed upon in writing, after the completion of the installation. During the testing period, the client is not allowed to use the software for productive or operational purposes. The supplier may request, even if not explicitly agreed upon, that the client, with adequately qualified personnel, conducts a proper test of sufficient size and depth on (intermediate) results of the development work and that the test results are reported to the supplier in writing, in a clear and comprehensible manner.
20.3 The software will be deemed accepted between the parties: a. If no acceptance test has been agreed upon, upon delivery, or if installation to be performed by the supplier has been agreed upon in writing, upon the completion of the installation, or b. If an acceptance test has been agreed upon between the parties, on the first day after the testing period, or c. If the supplier receives a test report as referred to in Article 20.5 before the end of the testing period: at the moment when the errors mentioned in that test report, as defined in Article 11.6, are corrected, without prejudice to the presence of imperfections that do not impede acceptance, as stipulated in Article 20.6. However, the software will be deemed fully accepted from the start of such use, if the client uses it for productive or operational purposes before explicit acceptance.
20.4 If the agreed acceptance test reveals that the software contains errors that obstruct the progress of the acceptance test, the client will inform the supplier in detail in writing, in which case the testing period will be interrupted until the software is adjusted to remove the obstruction.
20.5 If the agreed acceptance test reveals that the software contains errors as defined in Article 12.6, the client will inform the supplier in writing and in detail about the errors no later than the last day of the testing period. The supplier will make reasonable efforts to rectify these errors within a reasonable timeframe. The supplier is entitled to implement temporary solutions, program workarounds, or problem-avoiding restrictions in the software.
20.6 Acceptance of the software must not be denied for reasons other than those related to the explicitly agreed-upon specifications between the parties and not because of minor errors, which are errors that do not reasonably obstruct the software’s operational or productive use, without prejudice to the supplier’s obligation to rectify these minor errors under the warranty provisions of Article 23, if applicable. Acceptance should also not be withheld regarding aspects of the software that can only be subjectively evaluated, such as the design of user interfaces.
20.7 If the software is delivered and tested in stages and/or parts, non-acceptance of a specific stage and/or part does not affect a possible acceptance of a previous stage and/or another part.
20.8 Acceptance of the software in one of the ways as mentioned in Article 20.3 signifies that the supplier has been fully discharged from his obligations regarding the development and provision of the software and, if applicable, the installation of the software agreed upon by the supplier. Acceptance of the software does not affect the client’s rights under Article 20.6 regarding minor defects and Article 25 concerning the warranty.
20.9 In the absence of an expressly agreed billing schedule, all amounts related to software development are due upon the delivery of the software or, if installation to be performed by the supplier has been agreed upon in writing, upon the completion of the installation.
USE AND MAINTENANCE OF SOFTWARE
The provisions outlined in this chapter, “Use and Maintenance of Software,” apply in addition to the General Terms and Conditions to all software provided by the supplier. The rights and obligations mentioned in this chapter solely pertain to computer software in a form readable by a data processing machine and recorded on material that is readable by such a machine, along with the accompanying documentation, including any new versions provided by the supplier. Where this chapter refers to software, it also includes websites.
Article 21: Right to Use
21.1 Notwithstanding the provisions in Article 11, the supplier grants the client a non-exclusive right to use the software. The client will strictly adhere to the usage restrictions agreed upon between the parties. The client’s right of use, except as otherwise specified in these general terms and conditions, exclusively includes the right to load and execute the software.
21.2 The client may use the software solely within its own company or organization on a single processing unit and for a specified number or type of users or connections for which the right to use has been granted. Unless agreed otherwise, the client’s first-use processing unit and the number of connections attached to it at the time of initial use are deemed the processing unit and number of connections for which the right to use has been granted. In the event of a malfunction of the specified processing unit, the software may be used on another processing unit for the duration of the malfunction. The right to use can extend to multiple processing units as expressly stated in the agreement.
21.3 The right to use is non-transferable. The client is not allowed to sell, rent, sublicense, transfer, or grant restricted rights to the software or the media on which it is recorded, nor provide it to a third party in any manner or for any purpose, whether on-site or remotely, even if the said third party exclusively uses the software on behalf of the client. The client may not alter the software, except for error correction purposes. The client may not use the software for data processing on behalf of third parties (time-sharing). The source code of the software and the technical documentation produced during the software’s development will not be made available to the client, even if the client is willing to pay a fee for such access. The client acknowledges that the source code is of a confidential nature and contains trade secrets of the supplier.
21.4 Immediately after the end of the right to use the software, the client will return all copies of the software in its possession to the supplier. If the parties have agreed that the client will destroy the respective copies upon the termination of the right to use, the client will promptly inform the supplier of this destruction in writing.
Article 22: Delivery, Installation, and Acceptance
22.1 The supplier will deliver the software to the client on the agreed type and format of data carriers and, if the supplier’s installation is agreed upon in writing, install the software at the client’s location. In the absence of explicit agreements on this matter, the client will install, configure, parameterize, fine-tune, and, if necessary, adjust the equipment and operating environment used for the software. Unless expressly agreed otherwise, the supplier is not obliged to perform data conversion.
22.2 If a written acceptance test has been agreed upon by the parties, the provisions in Articles 20.2 to 20.7 shall apply. If no acceptance test has been agreed upon by the parties, the client accepts the software in the condition it is in at the time of delivery, including all visible and invisible defects and other issues, notwithstanding the supplier’s obligations under the warranty provisions in Article 23. In all cases, Article 20.8 applies without prejudice.
22.3 In the absence of an expressly agreed billing schedule, all amounts relating to the provision of software and the right to use the software are due upon the delivery of the software or, if in the case, the supplier’s installation has been agreed upon in writing, upon the completion of the installation.
Article 23: Warranty
23.1 The supplier will use its best efforts to rectify errors in the software as defined in Article 11.6 within a reasonable time if they have been reported to the supplier in detail in writing within a period of three months after delivery or, if an acceptance test has been agreed upon between the parties, within three months after acceptance. The supplier does not guarantee that the software will work without interruption, errors, or other defects, or that all errors and other defects will be corrected. The rectification will be provided free of charge, unless the software has been developed by the supplier at the client’s request other than for a fixed price, in which case the supplier will charge the client the costs of rectification according to its standard rates. The supplier may charge the client the costs of rectification according to its standard rates in the case of user errors, improper use, or other causes not attributable to the supplier, or if the errors could have been identified during the agreed acceptance test. The warranty does not cover the repair of corrupted or lost data. The warranty obligation is void if the client modifies the software without written permission from the supplier, and this permission will not be unreasonably withheld.
23.2 Error rectification will be carried out at a location determined by the supplier. The supplier is entitled to implement temporary solutions or workarounds or to impose problem-avoiding restrictions in the software.
23.3 The supplier has no obligation to rectify errors reported after the expiration of the warranty period specified in Article 23.1 unless a maintenance agreement has been concluded between the parties, which includes such a rectification obligation.
Article 24: Maintenance
24.1 If a maintenance agreement for the software has been concluded, or if maintenance is included in the software usage fee, the client will report errors in the software in accordance with the supplier’s standard procedures. Upon receiving the report, the supplier will use its best efforts to rectify errors as defined in Article 11.6 and make improvements in later versions of the software. The results will be made available to the client according to the urgency and timeframes determined by the supplier. The supplier is entitled to implement temporary solutions, workarounds, or problem-avoiding restrictions in the software. In the absence of explicit agreements on this matter, the client will install, configure, parameterize, fine-tune, and, if necessary, adjust the equipment and operating environment for the corrected software or the new version made available. Unless expressly agreed otherwise, the supplier is not obliged to perform data conversion.
24.2 The supplier does not guarantee that the software will work without interruption, errors, or other defects, or that all errors or other defects will be corrected.
24.3 The supplier may charge the costs of rectification according to its standard rates if there are user errors, improper use, or other causes not attributable to the supplier or if the software has been modified by someone other than the supplier. The repair of corrupted or lost data is not covered by maintenance.
24.4 If a maintenance agreement has been concluded, the supplier will provide the client with improved versions of the software. Three months after the availability of an improved version, the supplier is no longer obligated to rectify any errors in the old version or to provide support for the old version. To make a new version with new features available, the supplier may require the client to enter into a new agreement with the supplier and pay a new fee for making the new version available.
24.5 If the client has not simultaneously entered into a maintenance agreement with the supplier upon the conclusion of the software provision agreement, the supplier will not be obliged to enter into a maintenance agreement at a later time.
24.6 In the absence of an explicitly agreed billing schedule, all amounts related to software maintenance are due before the start of the maintenance period.
Article 25: Third-party Software
If and to the extent that the supplier provides third-party software to the client, the terms and conditions of those third parties will apply to that software, as long as this has been communicated to the client in writing by the supplier. The client accepts the terms of these third parties. These terms are available to the client at the supplier’s office, and the supplier will provide these terms to the client free of charge upon request. If, for any reason, the terms of these third parties are deemed not to be applicable or are declared inapplicable in the relationship between the client and the supplier, the terms of these general conditions remain fully valid.