Term & Conditions

General Terms and Conditions for THINK 7 Software Development

§ 1 Validity

1. The following General Terms and Conditions for the Software Development Division (GTC) are part of all contracts concluded with THINK 7 for services and deliveries in this area. Deviations from these conditions – in particular the validity of the customer’s purchase regulations – require the express written approval of THINK 7. Any conflicting General Terms and Conditions of the customer are expressly rejected.
2. Oral side agreements are only valid if confirmed in writing. E-mail is considered written form.
3. If provisions in contracts concluded with THINK 7 contradict individual provisions of these GTC, the provisions of the contract take precedence. The validity of the GTC otherwise remains unaffected.
4. These GTC apply to follow-up transactions with registered merchants and legal entities under public law even if they are not expressly and again included in the conclusion of the contract in each case. THINK 7 can make changes to the GTC. If the customer does not object within 2 weeks, the changes will be incorporated into current contracts.

§ 2 Performance obligations

1. The scope of services and deliveries from THINK 7 is determined from the respective underlying contract or offer. Furthermore, the scope of services is determined from other written service descriptions or concept offers.
2. THINK 7 can freely expand services and make improvements and is also entitled to change or redefine services, provided that this does not result in significant changes for the customer.
3. If THINK 7 provides free services and services (favors), these can be discontinued at any time and without prior notice. This does not give rise to any claims for reimbursement or damages.
4. THINK 7 is entitled to outsource contractual (partial) services to expert third parties. These then act as vicarious agents. Invoicing continues to be carried out via THINK 7.
5. The service phases are defined by THINK 7 in consultation with the customer.

If the execution of the order is delayed for reasons for which the client is responsible, THINK 7 can demand an appropriate increase in the remuneration. In the event of intent or gross negligence, the client can also assert claims for damages. In addition, delays may occur with regard to all subsequent dates, including the completion date. The time spans of these subsequent delays can be longer than the causal delay period.

6. If THINK 7 recognizes that the technical detailed specification is incorrect, incomplete, objectively not executable or unclear, THINK 7 will inform the client of this as soon as possible. The client will ensure that the technical detailed specification is notified and adjusted within a reasonable period of time.
7. If the client requests changes or additional requests, THINK 7 will create a fee-based offer. THINK 7 can interrupt work on the project until the additional services have been clarified. If the client rejects the offer for additional services, the original scope of services will remain. The schedule changes according to the test and offer time.
8. For all services that are subsequently agreed, unless otherwise agreed, the calculation is based on the hourly rates valid at the time of implementation, taking into account the time required.
9. The customer accepts each service phase separately. This applies in particular to milestones resulting from the project plan or comparable project sections. THINK 7 is entitled to make further work dependent on partial acceptance. Acceptance is deemed to have taken place tacitly if the services of the subsequent service phase are not immediately objected to in writing. If individual defects are complained about, these must be recorded in writing and reported immediately. Defects not recorded in writing cannot be asserted later. By accepting a service phase, its result becomes the binding basis for further services.
10. The result specifically developed by THINK 7 is based on personal, intellectual achievements. No assurance can be given beyond this declaration for the novelty of the idea underlying these services.
11. Unless otherwise agreed in writing, the client acquires a simple, temporally and geographically unlimited license for use and exploitation. Any further use and exploitation actions must be in writing. If the development of programs (software) or data works / databases is owed, the client only receives the unrestricted and exclusive right of use and disposal for the entire result if an express written agreement is made. The source code or developer access to the FileMaker files will only be handed over if this has been expressly agreed in writing. The right to use a service developed or delivered by THINK 7 includes the use and reproduction for the client’s internal use. The client may not make the product available to third parties, either in whole or in part. The client may only pass on rights to third parties with the written consent of THINK 7.
12. If a separate license agreement is concluded for the software, this overrides any conflicting provisions in the General Terms and Conditions. However, all other articles remain valid.

§ 3 Duties and obligations of the customer

1. The customer assures THINK 7 that the material handed over is free of patents, trademarks, copyrights, licenses or other protective rights of third parties. The customer releases THINK 7 from all claims in this regard.
2. The customer will provide THINK 7 with the documents and information required to carry out the work. The customer undertakes to provide test data in a timely manner that is necessary for future use in terms of scope, structure and design. The contracting parties will reach agreement on a case-by-case basis as to when and in what manner the customer’s cooperation services are to be provided. The scope of this depends on the type of service to be provided. If there is no mutual agreement, THINK 7 will inform the customer of the time.
3. The customer will, if necessary, provide or acquire the facilities required for the installation or operation of the software to be created or instruct THINK 7 to do so. This applies in particular to the required operating system, database, telecommunications and service programs (tools) in the current or required version, as well as to other required software. The client ensures the necessary usage rights. Maintenance, in particular updating of such software provided by the client, is also the responsibility of the customer, unless otherwise agreed in writing and separately with THINK 7.
4. When an error is identified, the customer provides THINK 7 with a detailed error log and actively supports the error correction.
5. Warranty claims expire if the customer has made changes to the software without prior written consent or has had third parties make changes, unless the client proves that the defect is not due to these changes. If reported defects are not attributable to THINK 7, the customer will reimburse the time spent and the costs incurred at the usual rates.

The warranty for error correction of a THINK 7 software product is limited to one year after acceptance of the program.

6. THINK 7 has the right to be named as the author in the imprint on the copies (hard and soft copies). Furthermore, THINK 7 is entitled to demand a mention in press releases, official project information, etc. If the client violates the right to be named, he is obliged to pay THINK 7 a contractual penalty of the agreed remuneration. This does not affect THINK 7’s right to claim higher damages in the case of a specific damage calculation. All copies must bear the original copyright notice and all other protective notices.
7. The services requested by the client must not violate applicable law of the Federal Republic of Germany or internationally recognized rules of international law. THINK 7 is entitled to refuse to provide such services and, if necessary, to terminate the contract without notice in writing. In these cases, the client is not entitled to any claims for damages. THINK 7 retains the right to remuneration for the work performed up to that point.

§ 4 Contract offer, conclusion of contract

1. The contract is concluded with the order confirmation or with the first act of fulfillment.

§ 5 Remuneration, payment terms

1. The remuneration agreed between the contracting parties in the contract, in the offer or in written supplementary agreements applies.
2. Interim invoices can be issued for services that are charged according to the time spent, unless otherwise agreed in writing.
3. THINK 7 can issue interim invoices at the end of each work phase.
4. All prices in the offers from THINK 7 are in euros, net plus the statutory VAT at the time of invoicing, additional costs and special expenses without deduction. Special expenses include postage, telephone, fax, courier, data carrier, travel and similar costs. Additional costs include digitization, printouts, costs from third-party providers and the like.
5. The client is obliged to pay the remuneration within the period specified on the invoice.
6. In the event of late payment, THINK 7 is entitled to charge default interest at the statutory rate.
7. In the event of late payment, THINK 7 is entitled to refuse to provide further services, including those under other contracts. The customer’s obligation to pay remains unaffected. THINK 7 can terminate the contractual relationship without notice if the customer is more than three months late in paying a significant portion of an invoice.
8. The customer must inform THINK 7 immediately if insolvency proceedings are applied for or opened against his assets or if he stops making payments.

§ 6 Retention of title

The software created by THINK 7 on behalf of the customer remains the property of THINK 7 until full payment has been made.

§ 7 Data security, data protection

1. Before THINK 7 carries out the contractual services, the client must back up the data related to the performance of the service. The client is obliged to back up his software and data properly at regular intervals until the end of the warranty period or the contract term. One day is currently considered the usual protection. The client is also obliged to regularly subject his data to a virus protection check.
2. The client is hereby informed in accordance with §33I of the Federal Data Protection Act and § 4 of the Teleservices Data Protection Ordinance that THINK 7 processes his company and address (identity) in machine-readable form and for tasks arising from the contract.

§ 8 Non-disclosure, confidentiality

1. Unless expressly agreed in writing, the information submitted to THINK 7 is not considered confidential. Passwords and code words as well as the customer’s data are excluded.
2. The client undertakes to keep secret all information and documents accessible in connection with the conclusion of the contract that are designated as confidential and not to record, pass on or use them unless necessary to achieve the purpose of the contract. This applies in particular to ideas and concepts brought to the attention of the client during the development phase/collaboration.

§ 9 Offsetting, right of retention, delay in performance.

1. The client can only offset THINK 7’s counterclaims with undisputed or legally established claims. The customer is only entitled to assert a right of retention due to opposing claims from the same contractual relationship.
2. If a client is in default with its performance obligations, THINK 7 can assert a right of retention until full payment has been made.
3. THINK 7 is not responsible for temporary disruptions to the services offered by THINK 7 or its suppliers or subcontractors, in particular due to force majeure, including strikes, lockouts and official orders, the failure of communication networks and gateways of other operators, disruptions in the area of ​​the monopoly services of Deutsche Post AG, Deutsche Telekom AG, and THINK 7 may, if necessary, postpone the service for the duration of the delay, plus a reasonable start-up time.
4. Temporary disruptions can also arise due to technical changes to THINK 7’s facilities or systems or due to other measures that are necessary for the proper or improved operation of the services offered (e.g. maintenance work, repairs, etc.). Insofar as THINK 7 is responsible for these disruptions, THINK 7 will immediately make all reasonable efforts to eliminate such disruptions as soon as possible or to work towards their elimination.

§ 10 Liability

1. Unless there is intent or gross negligence, any liability is limited to the damage foreseeable at the time of conclusion of the contract and any other liability is excluded, regardless of the legal basis. In particular, the exclusion also applies to data loss, lost profits, other financial losses, consequential damages and indirect consequential damages. As a restriction, in transactions between companies, liability is limited even in the event of gross negligence. The same applies to vicarious agents or legal representatives.
2. The client’s claims for damages expire at the latest one year from the start of the statutory limitation period. However, this does not apply to claims for damages based on an intentional act, grossly negligent behavior or fraudulent deception against THINK 7.

§ 11 Warranty

1. THINK 7 assumes the warranty for the error-free, defect-free operation of the software in accordance with the requirements agreed in writing.
2. In warranty cases, THINK 7 has the right to repair and/or replace the goods. If this fails twice within a reasonable period of time, the customer is entitled to the statutory warranty rights in accordance with THINK 7’s general terms and conditions.
3. Warranty claims must be communicated to THINK 7 in writing within the appropriate notice period, stating the specific circumstances of the occurrence of the fault complained of and the effects. THINK 7 can make its repair action dependent on the above conditions being met.
4. The warranty period is 12 months, unless another written agreement has been made and unless the purchase is of consumer goods.

§ 12 Final provisions, miscellaneous

1. The invalidity or ineffectiveness of individual provisions of the general terms and conditions does not affect the validity of the remaining provisions. If a provision is ineffective, the parties are obliged to replace the defective provision with an effective one whose economic and legal meaning comes closest to that of the defective provision.
2. Changes or additions to the terms and conditions must be made in writing.
3. The place of jurisdiction is Lindau. As of: July 28, 2017
4. German law applies