Translation for information only. Only the German version is legally binding. Mandatory statutory rights remain unaffected.
1. Scope and contracting party
1.1 These General Contractual Terms apply to contracts between schukai, Eichenstraße 26, 82290 Landsberied, Germany, and its business customers. Full details of the contracting party are provided in the legal notice.
1.2 They apply exclusively to entrepreneurs within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. Separate consumer terms apply to publicly offered apps obtained by an individual for private purposes.
1.3 Conflicting or supplementary customer terms apply only if schukai has expressly agreed to them. Providing services or accepting payment without reservation does not constitute agreement.
2. Conclusion of the contract and contractual documents
2.1 Offers by schukai are non-binding unless expressly designated as binding. A contract is concluded by signature by both parties, acceptance of a binding offer, an order confirmation or commencement of performance at the customer's request.
2.2 The nature and scope of the services are determined by the documents incorporated into the contract. In the event of a conflict, the following order of precedence applies:
- Individually negotiated agreements;
- The offer, order or order confirmation;
- The product and service sheet;
- Agreed special terms;
- These General Contractual Terms.
2.3 A data processing agreement takes precedence only to the extent that it governs the processing of personal data on behalf of the customer. It does not extend the agreed scope of services.
2.4 Product descriptions, presentations and website statements become part of the contract only if the order refers to them. Oral ancillary agreements must be confirmed in text form.
3. Services and performance
3.1 schukai provides the software, project, operational, licensing, maintenance or support services described in the order. Features, integrations, data transfers, operational services or deliverables not identified in it are not owed.
3.2 Where a specific result is agreed, the rules governing contracts for work and the agreed project terms also apply. For consultancy, assistance, ongoing development or work charged on a time-and-materials basis, schukai owes professional performance, rather than any further commercial or technical result.
3.3 schukai may use suitably qualified employees and subcontractors. schukai remains responsible for its own contractual obligations. If a subcontractor processes personal data on behalf of the customer, the data processing agreement and the rules agreed in it also apply.
3.4 schukai may change its working methods and technical resources provided this does not materially impair the agreed services or the customer's legitimate interests. Changes to the agreed scope of services are governed by the applicable change procedure.
4. Customer cooperation
4.1 The customer appoints contacts authorised to make technical and organisational decisions. It supplies the agreed information, data, access, test cases, approvals and decisions completely, accurately and in good time.
4.2 The customer ensures that the technical and organisational requirements within its area of responsibility are met. These include suitable devices, supported system versions, secure access, the necessary rights to third-party systems and current backups of its data, insofar as these fall within its responsibility under the operating model.
4.3 The customer may supply schukai only with content, data and materials that may lawfully be processed in the agreed process. It holds the necessary rights and complies with the information, consent and retention obligations applicable to its area of responsibility.
4.4 If performance is delayed by missing or late cooperation, dependent deadlines are extended appropriately. After prior notice, schukai may charge the demonstrable additional effort at the agreed rates.
4.5 If either party identifies an error, a security issue or a foreseeable delay, it informs the other party without culpable delay and cooperates in reasonably limiting the consequences.
5. Fees, billing and late payment
5.1 Fees, billing metrics, billing periods and due dates are set out in the order. If no price has been agreed for an additional service commissioned, schukai's customary remuneration at the time of commissioning applies.
5.2 All prices are exclusive of statutory VAT. Agreed travel, material, shipping and third-party service costs are charged separately. schukai agrees chargeable third-party services with the customer before commissioning them, unless they are already included in the order.
5.3 Invoices are payable without deduction within the period stated in the order or invoice. If no period is stated, the statutory rules on payment becoming due and default apply.
5.4 The customer may set off only undisputed claims or claims established by a final judgment. It may exercise a right of retention only in respect of claims arising from the same contractual relationship.
5.5 In the event of late payment, schukai may suspend affected services that are not critical to security after a prior reminder and a reasonable additional deadline, provided this is proportionate. Statutory rights remain unaffected.
6. Rights of use and deliverables
6.1 Pre-existing software, standard modules, libraries, tools, data models, templates, methods and general know-how of schukai remain attributable to schukai. This also applies where such components are configured or developed further within a customer project.
6.2 The customer receives the right of use specified in the order for the deliverables provided to it. Unless the order provides otherwise, this right arises after payment of the remuneration due for the respective deliverable. If the scope is not specified in greater detail, the customer receives a non-exclusive, perpetual right to use the deliverable for the agreed business purpose.
6.3 The right of use includes use by the customer's employees and agents and by an operational service provider appointed by it, insofar as they act exclusively for the customer and their use is necessary for the contractual purpose. Resale, rental, public provision or use for other companies is permitted only if provided for in the order.
6.4 Source code, development environments, internal tools and documentation not expressly identified are delivered only if agreed in the order. Mandatory statutory rights, in particular those relating to interoperability, remain unaffected.
6.5 For the duration of the contract, schukai receives the rights to customer materials necessary for performance, error analysis, backups and the agreed documentation. The customer warrants that it is entitled to grant these rights.
6.6 The customer is named publicly or used as a reference only with separate consent or under an appropriate agreement.
7. Confidentiality
7.1 Both parties treat the other party's non-public commercial, technical and organisational information as confidential. Confidential information may be used only for the contract and disclosed only to persons who need it for that purpose and are subject to appropriate confidentiality obligations.
7.2 Information is not confidential if it can be shown to have been publicly known, or to have become public without a breach of duty, to have already been lawfully known to the receiving party, to have been lawfully obtained from a third party, or to have been developed independently.
7.3 Disclosures required by law or by an authority remain permitted. Where legally permissible, the disclosing party informs the other party in advance and limits disclosure to what is necessary.
7.4 The obligation continues for five years after the contract ends. For trade secrets, it continues for as long as the information meets the statutory requirements for a trade secret.
8. Data protection and security
8.1 Each party processes personal data within its area of responsibility in accordance with the applicable data protection rules.
8.2 If schukai processes personal data on behalf of the customer, the parties conclude a data processing agreement under Article 28 GDPR before that processing begins. The public data processing information provides advance information and does not replace the agreed contract.
8.3 Security measures and operating limits are determined by the agreed product, operating model and data processing agreement. Neither party may share credentials or bypass safeguards.
9. Defects and limitation periods
9.1 Statutory rules apply to defects unless the order or special terms contain a valid provision to the contrary. The agreed characteristics are decisive. A general expectation does not replace an expressly specified feature, interface or compatibility requirement.
9.2 The customer describes a defect specifically enough for schukai to reproduce or understand it with reasonable effort. It does not transmit unnecessary personal data or secrets and provides reasonable assistance in narrowing down the cause.
9.3 schukai is given an opportunity to provide supplementary performance. The form of supplementary performance is determined by statutory rules and the nature of the service. A temporary workaround may be a reasonable interim measure, but does not permanently replace the correction owed.
9.4 Claims for defects become time-barred one year after the statutory limitation period starts. This shorter period does not apply in cases of intent, gross negligence, fraudulent concealment of a defect, a guarantee, claims for injury to life, body or health, or other cases of mandatory statutory liability.
10. Liability
10.1 schukai has unlimited liability for intent and gross negligence, culpable injury to life, body or health, an expressly assumed guarantee, and under mandatory liability provisions.
10.2 For a slightly negligent breach of a material contractual obligation, liability is limited to the loss foreseeable at the time of contracting and typical of the contract. Material contractual obligations are those whose fulfilment is essential to proper performance of the contract and on whose observance the customer may ordinarily rely.
10.3 In all other cases, liability for slight negligence is excluded. These limitations also apply for the benefit of schukai's legal representatives, employees and persons assisting in performance.
10.4 For loss of data whose backup is the customer's responsibility, liability is limited to the effort that would have been required for recovery if proper backups appropriate to the risk had been maintained. The cases of unlimited liability under clause 10.1 remain unaffected.
10.5 If a third party brings claims arising from content or instructions supplied by the customer or from use in breach of contract, schukai informs the customer. The customer assists in the defence and indemnifies schukai against justified claims and necessary costs insofar as the customer is responsible for the cause. schukai does not acknowledge a claim without the customer's consent unless immediate action is necessary to limit loss.
11. Term and termination
11.1 The term, renewal and ordinary termination are governed by the order and the special terms. If no provision is made for a continuing contractual relationship, statutory rules apply.
11.2 The right to terminate for good cause remains unaffected. If the good cause consists of a remediable breach of duty, a reasonable period for remedy must generally be allowed first.
11.3 Notices of termination and declarations ending the contract require at least text form, unless the law or the order requires a stricter form.
11.4 At the end of the contract, the parties return or delete confidential documents and access provided, unless a retention obligation or a continuing legitimate evidential purpose prevents this. Product-specific rules on export, handover and deletion remain unaffected.
12. Force majeure
12.1 Neither party is liable for delay or non-performance insofar as it is caused by an event that was unforeseeable when the contract was concluded, lies beyond its reasonable control and could not have been avoided through reasonable precautions.
12.2 The affected party informs the other party without culpable delay of the cause, expected duration and foreseeable consequences. Both parties endeavour to limit the consequences. Performance obligations are suspended only to the extent and for the duration of the impediment.
12.3 If the impediment lasts so long that a party can no longer reasonably be expected to continue the affected part of the services, it may terminate that part after reasonable notice. Services already performed must be paid for.
13. Final provisions
13.1 The law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods.
13.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the courts at schukai's registered office have jurisdiction. Exclusive statutory places of jurisdiction remain unaffected.
13.3 Amendments and additions to the contract require at least text form, unless an individually negotiated agreement or the law permits or requires another form. Individual agreements take precedence.
13.4 If any provision is or becomes invalid, the remainder of the contract remains effective. Statutory provisions take the place of the invalid provision.
13.5 New versions of these terms apply to new contracts from their effective incorporation. Existing contracts remain governed by the agreed version until it is changed in a legally effective manner.
14. Special terms
Depending on the order, the following supplementary terms may be agreed: