General Terms and Conditions of Contract - DIGIaccess
(1) The following General Terms and Conditions of Contract apply exclusively to the provision of the DIGIaccess software (hereinafter also referred to as “DIGIaccess”) by DIGIaccess GmbH.
Deviating or conflicting terms and conditions shall not be recognized by us unless we have expressly agreed to them in writing.
(2) These General Terms and Conditions of Contract shall also apply to all future transactions between the parties in connection with DIGIaccess and even if we provide services in the knowledge of deviating or conflicting terms and conditions.
(3) The order confirmation of DIGIaccess GmbH issued in response to the customer’s order is authoritative for the subject and scope of the ordered deliveries and services.
1. about DIGIaccess
(1) DIGIaccess is a software developed by DIGIaccess GmbH, which enables the customer to design his own web presence barrier-free, so that it can be found and used by people with disabilities in the generally usual way without special difficulties and basically without outside help.
(2) DIGIaccess takes into account the requirements for barrier-free web presences according to. the Disability Equality Act (BGG), the Barrier-Free Information Technology Ordinance (BITV 2.0), and the 5 mandatory compliance conditions of the Web Content Accessibility Guidelines – Guidelines for Accessible Web Content (WCAG 2.1). The barrier-free adaptation of PDF files acc. the aforementioned requirements is not part of the scope of services and is carried out individually by DIGIaccess GmbH at the customer’s request in accordance with a separate order.
The customer remains responsible for ensuring the accessibility of its web presence in accordance with the respective legally applicable requirements (e.g. state laws). He fully indemnifies DIGIaccess GmbH from claims of third parties resulting from a violation of this obligation.
2. test phase, software rental, rights of use
(1) The customer has the option to register for a 7-day trial period of DIGIaccess free of charge. The trial period does not include a license for the customer to use the software permanently.
(2) A license for permanent use is exclusively established by renting the software according to the following conditions.
(3) DIGIaccess GmbH transfers to the customer a license to use the software for its own purposes, namely the creation of accessibility of its own web presence.
(4) In order to realize the aforementioned purpose, DIGIaccess GmbH grants the customer the simple, non-exclusive, non-commercial, locally unrestricted, non-transferable right to use the software, limited in time for the duration of the software rental.
(5) Accordingly, the Customer undertakes to use the Software only for its own, non-commercial purposes, i.e. exclusively for its own, respective web presence. The customer is therefore not authorized to duplicate the software, provide it to third parties, reproduce it publicly or use it for another web presence without a separate license. The customer is also not authorized to edit the software himself or have it edited by third parties, to convert it into other programming languages or other operating systems, to transfer it into other forms of presentation, to otherwise edit, continue or supplement it. Copyright notices, serial numbers and other features serving to identify the software may not be removed or changed.
Any permission of use beyond this requires the prior written consent of DIGIaccess GmbH and will be agreed separately at reasonable conditions, if necessary.
(6) DIGIaccess GmbH may block the use of such software for which the customer is in default of rental payment for the duration of the default.
(7) There shall be no claim to the transfer of the source code underlying the software provided.
(2) Establishment of the full functionality of the Software shall take place within 48 hours after implementation.
4. liability for defects of quality and title
(1) DIGIaccess GmbH is obligated to provide the software to the customer in the condition according to the contract and to maintain it in this condition during the rental period. The obligation to maintain does not include the adaptation of the software to changed conditions of use and technical and functional developments such as changes in the IT environment, adaptation to the functional scope of competing products or establishing compatibility with new data formats.
(2) In case of a defect, DIGIaccess GmbH has the choice regarding the type of defect removal, e.g. by new delivery of the software. The defect shall be remedied within a reasonable period of time regardless of the number of attempts.
(3) DIGIaccess GmbH warrants that the software provided by it is free from third party rights that exclude or restrict its use by the customer.
(4) The customer guarantees to obtain or to have already obtained all rights required for the intended use in addition to the contractual license and indemnifies DIGIaccess GmbH from any claims of third parties in this context.
(5) If a third party asserts the infringement of property rights against the client, the client shall notify DIGIaccess GmbH immediately. In such a case, DIGIaccess GmbH is entitled, but not obliged, to defend the asserted claims at its own expense and in its own name. The customer is then obliged to act in agreement with DIGIaccess GmbH in case of disputes with third parties.
(6) DIGIaccess GmbH bears the costs of the dispute as well as the legally or comparatively determined compensation sums, as far as these are based on legally determined infringements of property rights or infringements recognized by DIGIaccess GmbH. Settlements require the prior consent of DIGIaccess GmbH. If in proceedings conducted by DIGIaccess GmbH or the customer, the customer is prohibited from further use of the contractual software due to infringement of a property right or if, in the opinion of DIGIaccess GmbH, such a decision is to be expected, DIGIaccess GmbH may optionally
– modify the contractual software in such a way that no property right is infringed any more with an equivalent function,
– procure the right for the customer to continue using the contractual software,
– replace the contractual software with another, equivalent software that does not infringe any proprietary rights.
(7) The foregoing clauses 1 to 4 shall apply only if and to the extent that the Contract Software has been used in accordance with the contract.
(8) The customer shall not be entitled to any claims other than those mentioned above due to infringements of property rights.
(9) DIGIaccess GmbH is not liable in cases where the customer has made changes to the provided software, unless these changes were without influence on the occurrence of the defect.
(10) Strict liability for damages for defects that were already present at the time the contract was concluded is excluded.
(11) The customer shall support DIGIaccess GmbH in the determination and elimination of defects and shall immediately grant access to the documents from which the detailed circumstances of the occurrence of the defect result.
5. upgrades and updates
(1) DIGIaccess GmbH provides services in accordance with. at its own discretion, the following services:
a) Provision of new program statuses and program improvements,
b) Adjustment to legal changes.
In doing so, DIGIaccess GmbH strives to take into account changes in the relevant legal regulations (e.g. BGG, BITV, WCAG). The customer is responsible for monitoring and complying with the legal requirements.
DIGIaccess GmbH also strives to continuously develop the software and deliver program improvements and/or new program versions.
(2) In all other respects, these General Terms and Conditions shall apply to upgrades and updates.
6. prices, price adjustment clause
(1) The Customer shall pay a rental fee for the provision of the Software, which shall be assessed per year. The rent is payable at the beginning of each contract year.
All prices are exclusive of sales tax.
(2) In case of an automatic contract extension, DIGIaccess GmbH may adjust the prices according to its respective current prices with the beginning of the new contract term. DIGIaccess GmbH will inform the customer about the price change in text form at least 6 weeks before it takes effect. In case of price increases of more than 10%, the customer has a special right of termination with a notice period of 2 weeks to the beginning of the new contract period (in writing, by fax or by e-mail).
(3) The customer is only entitled to a right of set-off if his counterclaims have been legally established or are undisputed by DIGIaccess GmbH. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
(1) If no other contractual liability agreement exists, the statutory provisions shall apply.
(2) DIGIaccess GmbH is only liable insofar as typically foreseeable damages arise from the violation of essential contractual obligations.
In this respect, liability for indirect and consequential damages in particular is excluded. In addition, liability for the contract shall be limited in total to the value of the order. Deviating from this, the following shall apply: If the order value is less than 25,000 euros, liability shall be limited to 50,000 euros. If the value of the order is 25.000,- Euro or more and less than 100.000,- Euro, the liability is limited to 100.000,- Euro.
(3) In case of loss of data, DIGIaccess GmbH is only liable for the effort that would have been necessary for the recovery of the data in case of proper and regular data backup by the client. The restriction shall not apply if and to the extent that the data backup is part of the services to be provided by the Contractor.
(4) The above limitations of liability shall not apply if the cause of damage is based on intent or gross negligence or if there is personal injury (damage resulting from injury to life, body, health) or mandatory claims under the Product Liability Act are affected.
(5) The above provisions shall also apply in favor of vicarious agents of the Contractor.
8. term, termination
(1) The software shall initially be provided for the agreed fixed contract term. The minimum contract period is 1 year.
(2) The contract shall be automatically extended by 1 year in each case if it is not terminated by one party with 3 months’ notice to the end of the contract.
9. amendment clause, final provisions
(1) DIGIaccess GmbH is entitled to make changes to the General Terms of Contract and other conditions. DIGIaccess GmbH will only make these changes for valid reasons, in particular due to new technical developments, changes in the relevant laws or jurisdiction or other equivalent reasons. If the amendment significantly disturbs the contractual balance between the parties, the amendment shall not be made. Otherwise, changes require the consent of the customer.
(2) If individual provisions of these General Terms and Conditions of Contract are not or only partially legally effective, this shall not affect the effectiveness of the remaining provisions.
(3) German law shall apply. Bonn is agreed as the place of jurisdiction if the customer is a merchant, a legal entity under public law or a special fund under public law.