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General Terms and Conditions of Schindler IT-Solutions GmbH
Status March 2019
Schindler IT-Solutions GmbH, hereinafter referred to as SCHINDLER-IT, provides deliveries and services for the customer only under these GENERAL TERMS AND CONDITIONS of Business.
These SCHINDLER-IT GENERAL TERMS AND CONDITIONS OF BUSINESS consist of three parts:
Part 1: GENERAL CONDITIONS FOR DELIVERIES AND SERVICES Part
2: ADDITIONAL CONDITIONS FOR DELIVERIES Part
3: ADDITIONAL CONDITIONS FOR SERVICES
The 1st part is generally applicable to all supplies and services of SCHINDLER-IT. The 2nd part applies only to supplies and the 3rd part only to services of SCHINDLER-IT.
These GENERAL TERMS AND CONDITIONS apply to the initial order as well as to all subsequent orders placed with SCHINDLER-IT and shall only cease to apply when amended General Terms and Conditions come into force (see below the provisions on Reserved Amendments to these Terms and Conditions).
Part 1: GENERAL CONDITIONS OF DELIVERY AND SERVICES
1.1. ENTREPRENEURIAL STATUS OF THE CUSTOMER
These General Terms and Conditions regulate deliveries and services of SCHINDLER-IT to the customer in his capacity as entrepreneur. By placing an order with SCHINDLER-IT, the customer confirms that the order is placed in his capacity as an entrepreneur.
1.2. SUBJECT OF THE CONTRACT
are deliveries, services or a combination of deliveries and services of SCHINDLER-IT on behalf of the customer. Subject matter of the contract are only deliveries and/or services in information and communication technology. The supplies and/or services are specified in the order confirmation of SCHINDLER-IT. Other deliveries and services are not subject matter of the contract.
SCHINDLER-IT assumes project management and project responsibility only if this is expressly stated in the order confirmation. In all other cases, project management and project responsibility are the sole responsibility of the customer.
1.3. CONTENT OF THE CONTRACT
Components and the content of the contract between the customer and SCHINDLER-IT form only:
a) the offer of SCHINDLER-IT
b) the order confirmation of SCHINDLER-IT
c) these General Terms and Conditions.
SCHINDLER-IT shall issue the order confirmation as soon as possible after the customer's order is placed (order). If the offer and order confirmation of SCHINDLER-IT differ, the order confirmation shall take precedence. If exceptionally (short-term order placement, comparatively low order volume, etc.) of SCHINDLER-IT no written offer is made, only the order confirmation of SCHINDLER-IT and these General Terms and Conditions of Business are components and content of the contract - order placement by the customer presupposed -.
Agreements supplementing or amending the content of the contract are valid only if confirmed in writing by SCHINDLER-IT.
1.4. PRESUPPOSED CUSTOMER OBLIGATIONS AND SPECIAL RIGHT OF WITHDRAWAL
Acceptance of the order and fulfilment of the contract by SCHINDLER-IT presupposes that the customer fulfils the following obligations in good time, at his expense and in principle without being asked:
a) The customer provides expert, trained personnel familiar with the IT structure of the customer.
b) The customer enables SCHINDLER-IT access to the IT structure and grants access authorisations to SCHINDLER-IT personnel. The customer enables SCHINDLER-IT access both locally and remotely / externally.
c) The customer shall provide for the communication connections including Internet access and for adequate protection of its IT structure against unauthorised access and against external impairments (user administration, access control, password protection, firewall, intrusion detection, virus protection, etc.).
d) The customer shall inform SCHINDLER-IT of all special features of its IT structure, its process organisation and the hardware and software components used by it. He shall further inform SCHINDLER-IT of circumstances that may impede, delay or otherwise impair the deliveries and services.
e) The customer shall provide SCHINDLER-IT with complete and up-to-date network documentation (network plan) and product descriptions for hardware and software used.
f) For software that is not part of the subject matter of the contract, but is used by the customer in connection with the performance of the contract and/or for the use of the subject matter of the contract, the customer shall acquire the necessary licenses independently and without action or obligation to review on the part of SCHINDLER-IT.
g) The customer guarantees before, during and after the provision of deliveries and services by SCHINDLER-IT sufficient storage and backup of all data and programs used by the customer.
h) The customer guarantees that in its IT structure the following file formats can be received, opened, read, processed and sent and are available for the provision of deliveries and services by SCHINDLER-IT and for communication with SCHINDLER-IT in an up-to-date version: TXT, RTF, DOC, DOT, XLS, XLT, PPT, POT, PS (Postscript), PDF, HTML / HTM, ZIP, TIF, BMP, GIF and JPEG / JPG.
If SCHINDLER-IT determines the non-fulfilment of one or more presupposed customer obligations, SCHINDLER-IT shall grant the customer an appropriate period of grace for remedy and subsequent fulfilment of obligations. This grace period is normally 14 days, in urgent cases 72 hours. SCHINDLER-IT is entitled to withdraw from the contract in the event of failure by the customer to remedy the situation and subsequent fulfilment of obligations. In the case of withdrawal, the customer is obliged to pay SCHINDLER-IT the agreed remuneration less the value of the deliveries and services not performed as a result of the withdrawal.
1.5. PRICES AND CHARGES
All prices offered by SCHINDLER-IT are subject to change. Prices are subject to change SCHINDLER-IT. If changes in the prices offered by SCHINDLER-IT occur as a result of changes in the daily, weekly or monthly prices offered by manufacturers or their distribution partners before confirmation of order by SCHINDLER-IT, SCHINDLER-IT will make a modified offer to the customer with regard to the components affected by these price changes. If the price changes occur only after confirmation of the order by SCHINDLER-IT and the price change causes a change of no more than one-tenth of the total fee stated in the order confirmation, the customer is obliged to bear the price change. If this total remuneration is exceeded by more than one tenth, SCHINDLER-IT will make a new offer to the customer.
Agreed prices do not cause a price commitment for further orders of the customer to SCHINDLER-IT.
All prices offered are exclusive of taxes, fees and public charges. Fees for the compensation of copyrights and ancillary copyrights as well as remuneration claims (blank cassette remuneration, equipment remuneration) are only included in prices if this is expressly stated in the offer and in the order confirmation of SCHINDLER-IT.
1.6. PAYMENT AND CONSEQUENCES OF DEFAULT
All fees are to be paid by the customer to SCHINDLER-IT immediately upon receipt of invoice.
SCHINDLER-IT is entitled to demand a down payment of one third of the order value including taxes, fees and charges. This is due for payment to SCHINDLER-IT within 14 days from the date of the order confirmation.
SCHINDLER-IT is entitled to demand partial payments after the beginning of the delivery or service.
All payments shall be made without any deduction and free of charges for SCHINDLER-IT.
In case of default, 1% interest per month plus reminder, collection and execution costs will be charged to the customer.
In the event of default on the down payment or a partial payment, SCHINDLER-IT is entitled to wait with further deliveries and services until the customer has either paid all due fees or secured by bank guarantee in favour of SCHINDLER-IT in the amount of the due fees.
If the delay is more than 14 days from the due date of the down payment or partial payment, SCHINDLER-IT may withdraw from the contract after granting a grace period of a further 14 days. In the case of withdrawal, the customer shall be obliged to pay SCHINDLER-IT the agreed remuneration less the value of the deliveries and services not carried out as a result of the withdrawal.
1.7. CREDITING OF PAYMENTS AND OBJECTION AGAINST RESERVATIONS AND PAYMENT DEDUCTION
Payments of the customer which do not completely settle the fees due in favour of SCHINDLER-IT shall first be credited against interest, then against dunning, collection and execution costs and finally against the outstanding capital (that is the invoice amount without interest and costs), beginning with the oldest debt. SCHINDLER-IT herewith contradicts contrary payment dedications of the customer. Reservations declared by the customer in connection with payments are legally ineffective.
1.8. PROHIBITIONS OF RETENTION
The customer is not entitled to withhold the down payment. In the event of default, the above-mentioned consequences of default shall apply.
The customer is also not entitled to withhold other payments. This shall also apply in the case of deliveries and services not yet fully executed, in the case of warranty services not yet provided by manufacturers and in the case of warranty claims not yet fulfilled.
If, however, significant defects occur which the customer has reported to SCHINDLER-IT in due time and form, the customer may withhold payment of part of the due fees. This part of the fees amounts to at most twice the direct costs of remedying the defect.
1.9. PROHIBITION OF OFFSETTING
The customer is not entitled to offset counterclaims asserted by him against claims of SCHINDLER-IT. A set-off is only permissible if a counterclaim of the customer has been legally established by a court of law or has been expressly recognized by SCHINDLER-IT in writing and with the amount of the counterclaim.
1.10. RIGHTS AND CONDITIONS OF MANUFACTURERS AND LICENSORS
The customer shall protect the rights of the manufacturers and licensors of the components supplied by SCHINDLER-IT and used for the services and refrain from any interference with the rights of manufacturers and licensors of such components. These rights include in particular industrial property rights, copyrights and related property rights as well as business and trade secrets.
The terms of delivery of the manufacturers and the license terms of the licensors can neither be changed nor supplemented by SCHINDLER-IT or the customer. The customer shall inquire about the respective applicable terms of delivery of the manufacturers as well as the licensing conditions of the licensors, comply with these conditions and protect the resulting rights of manufacturers and licensors. If these conditions are not queryable by the customer (exceptional case), it will make them available to the customer at his request SCHINDLER-IT.
The above obligations apply both to the customer himself and to all his employees, agents and also third parties who have access to such components within the company or otherwise within the customer's sphere of influence with the customer's knowledge. The customer shall ensure the legally effective transfer of these obligations to the aforementioned group of persons.
All these obligations shall continue to apply for an unlimited period after the end of the contractual relationship between SCHINDLER-IT and the customer.
1.11. PROHIBITION OF ASSIGNMENT
The customer is not entitled to assign claims and other claims arising from the contract without the prior written consent of SCHINDLER-IT.
1.12. DISCLAIMERS OF LIABILITY
Any liability of SCHINDLER-IT for damages resulting from unforeseeable conditions and events, for atypical damage, consequential damage, loss of use, loss of profit, other financial losses, indirect damage, claims of third parties and any liability for defects, errors, malfunctions, interruptions and expenses that are due to interventions, influences or changes on the part of the customer or the non-fulfilment of presupposed customer obligations are excluded.
Also excluded is any liability for the correctness and completeness of the recording and processing of data, the achievement of certain processing speeds or response times and the integrability and implementability of components other than those belonging to the subject matter of the contract in the IT structure of the customer as well as the runnability and interoperability of such other components with components belonging to the subject matter of the contract.
Claims for damages against SCHINDLER-IT and its vicarious agents are excluded in any case, unless the customer proves that they are attributable to intentional or grossly negligent conduct. Any liability of Schindler IT and its vicarious agents for slight negligence is excluded in any case.
1.13. LIMITATIONS OF LIABILITY
In terms of amount, claims for damages by the customer against SCHINDLER-IT and its vicarious agents shall in any case be limited to twice the order value excluding taxes, fees and charges (according to the order confirmation of Schindler-IT) and to a maximum amount of EUR 20,000.00 (EURO twenty thousand), the lower of these two limits being applicable.
Irrespective of the above exclusions and limitations of liability, any liability of SCHINDLER-IT and its vicarious agents shall be limited to such expenditure as is necessary to remedy the damage despite fulfilment of presupposed customer obligations or - in the event of non-performance of these obligations - would be necessary.
The Product Liability Act shall apply with the addition that SCHINDLER-IT shall not be liable to the customer for reimbursement. The customer must transfer this exclusion of the obligation to reimburse under the Product Liability Act to its own contractual partners, with other recourse obligations.
1.14. LIMITATION OF LIABILITY
The customer's liability claims shall become statute-barred within one year calculated from the time at which the customer knows of the damage and the damaging party or - even before that - if the customer has fulfilled his obligations. The provisions on the warranty period shall remain unaffected.
1.15. APPLICABLE LAW
The contractual relationship, its formation, its validity, its enforceability and all rights and obligations arising from it are subject to Austrian law. The applicability of the UN Convention on Contracts for the International Sale of Goods and the application of referral rules (conflict-of-law rules) that refer to a law other than Austrian law is excluded.
1.16. PLACE OF PERFORMANCE AND JURISDICTION
Place of performance is the premises of SCHINDLER-IT in A-2100 Stetten.
For any disputes arising from the contractual relationship and in connection with it, SCHINDLER-IT and the customer submit to the court having jurisdiction over the subject matter of A-2100 Korneuburg, waiving any other place of jurisdiction.
1.17. SEVERABILITY CLAUSE AND INTERPRETATION OF THE CONTRACT
Should individual provisions of this contract be or become void, contestable or otherwise legally ineffective, this shall not affect the validity of the remaining contractual provisions. In place of the invalid provision, a valid provision shall be deemed to have been agreed which comes closest to the invalid, contestable or otherwise legally effective provision in its economic content and the purpose of the contract. This also applies to the filling of contractual gaps by means of a supplementary interpretation of the contract in the manner described above. SCHINDLER-IT and the customer mutually undertake to fulfil their obligations in good faith.
1.18. RESERVED CHANGES TO THESE TERMS AND CONDITIONS
Changes in technologies, the prices and (distribution) conditions set by manufacturers and licensors, liability insurance conditions, taxation of production factors and the legal situation cannot be influenced by SCHINDLER-IT, but may require changes to these General Terms and Conditions. SCHINDLER-IT reserves the right to make such changes and will make such amended terms and conditions available to the customer in good time before they come into force. The customer may consult the General Terms and Conditions at any time. At his request at any time he receives them from SCHINDLER-IT sent.
1.19. WRITTEN FORM REQUIREMENT
Changes and additions to the components and the content of the contract must be made in writing (mutual company signature) to be legally effective. Also a departure from this requirement can only be made in writing with mutual company production.
1.20. REFERENCES AND CONFIDENTIALITY
SCHINDLER-IT is entitled to cite the customer and the nature of the goods and services provided for him for reference purposes vis-à-vis third parties.
Notwithstanding this right, the contract as well as all business, operational, technical and organizational matters of SCHINDLER-IT and the customer shall be subject to strict secrecy, namely for an unlimited period beyond the end of the contractual relationship.
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Part 2: ADDITIONAL CONDITIONS FOR DELIVERY
2.1. DELIVERY AND DIVISIBILITY
Delivery is either by SCHINDLER-IT personnel on site or by dispatch, whereby SCHINDLER-IT decides at its own discretion on the type of delivery and orders the carrier. The carrier is not vicarious agent of SCHINDLER-IT. Delivery by shipment is at the risk and peril of the customer. SCHINDLER-IT will take out transport insurance only at the request of the customer.
Each delivery can be divided into the components that make it up.
In the event of initial and/or subsequent non-fulfilment of presupposed customer obligations, as well as delay or interruption of delivery for reasons within the sphere of the customer, SCHINDLER-IT is entitled to invoice the customer for the parts of the remuneration attributable to the delivered components. These parts of the remuneration are to be paid by the customer to SCHINDLER-IT immediately upon receipt of the invoice. Further claims and other claims of SCHINDLER-IT are not affected by this partial maturity.
2.2. DELIVERY TIME AND COMPONENT CHANGE
If SCHINDLER-IT in the confirmation of order no earlier delivery date, SCHINDLER-IT begins with the delivery within a period of 30 days, which is calculated from the latest of the following dates:
a) Fulfillment of presupposed customer obligations
b) Date of order confirmation of SCHINDLER-IT
c) Crediting of the deposit on the bank account of SCHINDLER-IT.
SCHINDLER-IT is entitled to make delivery at any time within the delivery period and within the business hours of the customer. The customer shall ensure that the delivery can be made without delay and without interruption.
In the event of initial and/or subsequent non-fulfilment or presumption of customer obligations, as well as delay or interruption of delivery for reasons within the sphere of the customer, SCHINDLER-IT is entitled to reschedule, interrupt and later continue delivery. The resulting time delays, additional personnel and transport costs and safekeeping costs shall be borne by the customer.
If the manufacturer of a component or its distribution partner does not deliver to SCHINDLER-IT in time without a reason for which SCHINDLER-IT is responsible, so that SCHINDLER-IT can meet the delivery date and/or the delivery period, SCHINDLER-IT is entitled to extend the delivery date and/or the delivery period by a maximum of 14 days.
If the manufacturer or its distribution partner does not deliver the component on time even within this extended period, or if it ceases production and/or delivery of this component at all, SCHINDLER-IT will deliver a component of the same quality from the same or another manufacturer. A possible associated surcharge for this component is at most one tenth of the price offered by SCHINDLER-IT for this component.
2.3. RETENTION OF TITLE AND RELATED CUSTOMER OBLIGATIONS
All delivered components remain the unrestricted property of SCHINDLER-IT until full payment of the fees (sum of all invoice amounts) and ancillary costs (interest, dunning, collection and execution costs) and may not be resold, passed on or charged by the customer until full payment has been made. Restrictions on the sale, transfer and encumbrance of components contained in the terms of delivery of manufacturers and licence conditions of licensors shall not be affected by this and shall remain unrestricted.
Until full payment, the customer is obligated to SCHINDLER-IT to maintain the delivered components in proper and unaltered condition corresponding to the manufacturer's conditions, and to inform employees, agents and third parties in the event of an incident of the unrestricted retained ownership of SCHINDLER-IT.
Until full payment has been made, the customer will also refrain from any change of location, pledging or transfer of ownership by way of security of the delivered components.
If delivered components are locally changed before complete payment, executive seized or officially seized, the customer has to inform SCHINDLER-IT immediately and cooperate that SCHINDLER-IT can assert its right of ownership and regain possession of the components.
2.4. ACCEPTANCE
If the delivery also includes installation and implementation, acceptance is carried out by the customer.
Acceptance shall only include the components which are the subject of the delivery and are to be installed and implemented by SCHINDLER-IT, but not the other hardware and software used by the customer.
Acceptance is carried out immediately after completion of the installation and implementation of the components to be delivered, namely by means of a functional test.
If operation-obstructing defects occur in the test, SCHINDLER-IT shall remedy these defects within a reasonable period and set a new acceptance date.
If there are no defects that hinder operation, the acceptance is successful. However, SCHINDLER-IT shall be obliged to remedy the defects not impeding operation within a reasonable period not exceeding 30 days.
If the customer uses the delivered components in real operation even before the acceptance and the customer does not make a complaint about operation-impeding defects within 7 days after commissioning, the acceptance is replaced by the real operation and the legal effects of the acceptance occur without carrying out the test.
If SCHINDLER-IT supplies components for self-installation by the customer, there is no acceptance.
2.5. WARRANTY
SCHINDLER-IT warrants to the customer that the delivered hardware components are free from defects that hinder operation and are fundamentally suitable for use in the customer's company, provided that the customer complies with the conditions stated in product descriptions and conditions of the manufacturers.
SCHINDLER-IT warrants to the customer that the delivered software components are executable on the hardware components supplied and are fundamentally suitable for use in the customer's company, provided that the customer complies with the conditions stated in product descriptions and other documentation of the manufacturers and licensors.
Such a warranty for runnability SCHINDER-IT provides with respect to other hardware only if SCHINDLER-IT was sufficiently informed by the customer before placing the order about the characteristics of this hardware and the software installed on it and SCHINDLER-IT confirms in writing the runnability of the supplied software on this hardware and the interoperability of the supplied software with the software already used by the customer before delivery.
Warranty prerequisite is the fulfilment of presupposed customer obligations during the delivery and during the warranty period.
The warranty period is six months from delivery. If, instead of or in addition to the delivery, an acceptance test is also carried out, the warranty period shall begin on the date of this acceptance test. The warranty period shall not be extended by improvement and replacement and shall not start anew.
Defects must be notified by the customer to SCHINDLER-IT in writing within 7 days of delivery or acceptance and with a complete and conclusive description of the defect. The description of the defect must be written in such a way that the defects can be reproduced at any time and remedied as efficiently as possible.
SCHINDLER-IT shall be entitled to charge the customer for expenses for personnel and transport arising from defects notified but not existing, incomplete descriptions of defects, defects notified but not reproducible and difficulties in remedying defects.
2.6. EXCLUSIONS OF WARRANTY
SCHINDLER-IT provides the customer no warranty for defects and malfunctions that are attributable to the sphere of the customer or otherwise to one or more of the causes listed below:
a) Use of used components
b) Installation and conversions by the customer
c) Use of components by the customer that contradict
the recommendations of SCHINDLER-IT d) Non-compliance by the customer with the manufacturer and licensor conditions for delivered components
e) Changes to the operating system, application programs, of the interfaces and configurations without the consent of SCHINDLER-IT
f) improper operation of the components or operation of the components contrary to the product descriptions or the manufacturer's and licensor's terms and conditions or user errors equivalent to these,
g) omitted or improperly performed maintenance and servicing of the components,
h) defects and malfunctions as a result of external access or influences (hackers, intrusion, virus attack, etc.).)
2.7. MANUFACTURER'S WARRANTIES AND LIMITATION OF WARRANTY
If manufacturers grant guarantees for the components supplied by SCHINDLER-IT, SCHINDLER-IT will support the customer in the assertion of warranty claims.
If defects occur in such components, SCHINDLER-IT will, in accordance with the manufacturer's warranty conditions, either assert these guarantees itself or support the customer in asserting the warranty claims itself.
The customer assumes the manufacturer warranty conditions including the manufacturer and component-specific features (warranty period, on-site warranty, bring-in warranty, permissibility of component replacement, no assumption of transport costs, etc.).
The warranty for delivered software components is limited to the assignment to the customer of those warranty claims which SCHINDLER-IT itself has against the manufacturer or its distribution partners.
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Part 3: ADDITIONAL CONDITIONS FOR SERVICES
3.1. SUBJECT OF PERFORMANCE
SCHINDLER-IT provides support, programming or training for the customer or a combination of such services. The nature and duration of these services is specified in the order confirmation of SCHINDLER-IT.
The customer has no claim to further or recurring provision of services by SCHINDLER-IT. Also there is no claim to a specific response time or a specific completion date, unless expressly confirmed in writing by SCHINDLER-IT.
3.2. SEPARATION OF SUPPLIES AND PROJECTS
Services of SCHINDLER-IT form a performance unit separate from deliveries of SCHINDLER-IT and are charged independently of such deliveries. This applies also if SCHINDLER-IT renders services in connection with deliveries.
Services of SCHINDLER-IT do not have project character and in the relationship between SCHINDLER-IT and the customer do not form part of any IT project carried out by the customer. This also applies if the services are technically, organizationally and/or temporally integrated into an IT project from the customer's point of view.
The obligations of the customer towards SCHINDLER-IT are neither postponed nor limited by delays in such an IT project.
3.3. PLACE OF PERFORMANCE
The place of performance shall be determined by SCHINDLER-IT according to technical, spatial and organizational conditions. If the performance of the service is possible both at the customer's site and outside of the same, SCHINDLER-IT shall select the place of performance which is most suitable and most efficiently usable for this purpose according to the type and duration of the service.
3.4. PERFORMANCE PERIOD
SCHINDLER-IT begins with the services on the date specified in the order confirmation of SCHINDLER-IT. This is only in the case of training as a fixed date.
If the order confirmation from SCHINDLER-IT does not specify a date or deadline for the commencement of services, SCHINDLER-IT will commence the services in urgent cases within 72 hours, otherwise within 30 days from dispatch of the order confirmation from SCHINDLER-IT.
The customer shall ensure that the services can be provided without delay and without interruption. In the event of delay or interruption of the services for reasons within the sphere of the customer, SCHINDLER-IT is entitled to later service provision and interruption. The additional expenditure arising from this shall be borne by the customer.
Services must be confirmed in writing by the customer in hourly records. Insofar as the object of the service consists of half-day or full-day training courses with a flat-rate agreement, the hourly records shall not apply.
If SCHINDLER-IT provides support or programming for the customer for more than one month, the hourly records for one month each shall be combined for billing purposes and the remuneration shall be invoiced to the customer monthly.
3.5. REMUNERATION AND ADDITIONAL COSTS
The remuneration for half-day and full-day training courses is agreed as a lump sum. All other services including hourly training courses shall be charged to the customer according to the time spent at the hourly rates of SCHINDLER-IT valid at the time of service provision.
The flat rate or hourly rate is specified in the order confirmation of SCHINDLER-IT.
The customer shall bear the costs for travel, meals and overnight stays, and in the case of the training course also for any necessary rental of premises.
3.6. CUSTOMER OBLIGATIONS IN PROGRAMMING
It is the customer's task and responsibility to draw up the specification sheet and determine the prerequisites for programming. The customer shall remain bound by this specification and these requirements until the completion of the programming by SCHINDLER-IT. Changes to the requirements specification and the prerequisites for programming are binding to SCHINDLER-IT only with their written consent.
SCHINDLER-IT is not obliged to check the specification and the definition of the prerequisites of the programming for correctness, completeness and feasibility and assumes in this regard no warning obligations to the customer.
In addition to the Presupposed Customer Obligations, the Customer undertakes to provide the development environment, development tools and test environment, interfaces for data import and export as well as test data corresponding to real data for programming.
The customer's obligations to provide adequate protection against unauthorised access and external interference also apply to the development environment and the test environment.
3.7. WAIVER OF ACCEPTANCE
Due to the lack of project character of the programming and the factually or temporally limited scope of the programming, the customer waives its acceptance.
An exceptional acceptance in relation to this takes place only if SCHINDLER-IT confirms this in writing. In this case 2.3 ACCEPTANCE of the acceptance and the test shall apply analogously and mutatis mutandis.
3.8. RIGHTS OF USE OF PROGRAMMES
In addition to the rights to the programs and the code of the programs to which the customer is entitled on the basis of mandatory statutory provisions, the customer acquires only the non-transferable, non-exclusive right of use to the programs and the documentation, which is limited to the customer's IT structure but is unlimited in time (work use authorisation).
All other rights to programs, documentation and all work results remain with SCHINDLER-IT. Rights of use of third parties remain unaffected.
The customer undertakes to refrain from any use of the programs, documentation and work results outside the scope specified in the above provisions. Otherwise, the customer is obliged to pay SCHINDLER-IT at their request at any time - without prejudice to further claims for injunctive relief and damages - an appropriate remuneration.
3.9. PROGRAMMING WARRANTY
SCHINDLER-IT warrants to the customer that the programs created comply with the customer's specification sheet and the requirements for programming specified by the customer.
SCHINDLER-IT warrants to the customer that the programs are executable in the test environment of the customer and, in the absence of a test environment, on the IT structure provided by the customer for real operation and are fundamentally suitable for use in this IT structure of the customer.
Warranty prerequisite is the fulfilment of the customer's obligations during the programming and during the warranty period.
The warranty period is six months from the date of handover of the programming to the customer. If an exceptionally agreed acceptance takes place, the warranty period shall begin on the date of this acceptance.
Defects must be notified by the customer to SCHINDLER-IT in writing within 7 days from the end of the programming (or from the exceptionally agreed acceptance) and with a complete and conclusive description of the defect. The description of the defect must be written in such a way that the defects can be reproduced at any time and remedied as efficiently as possible.
SCHINDLER-IT shall be entitled to charge the customer for expenses for personnel and transport resulting from defects notified but not existing, incomplete descriptions of defects, defects notified but not reproducible and difficulties in remedying defects.
3.10. WARRANTY EXCLUSIONS
Warranty claims against SCHINDLER-IT are excluded if:
a) the customer changes the programs or otherwise interferes with the code of the programs;
b) the customer changes the conditions contained in the performance specification or in his definition of the prerequisites of the programming in such a way that they could not be taken into account during programming by SCHINDLER-IT;
c) the customer uses the programs in another IT structure which does not correspond to the test environment and in the absence of such an IT structure to the environment provided by the customer for real operation;
d) errors, defects or malfunctions are due to access by persons who are not competent, trained and familiar with the IT structure of the customer or who are not entitled to access;
e) errors, defects or malfunctions are due to unauthorised access or impairments from outside;
f) errors, defects or malfunctions are due to the fact that the customer uses the programs on hardware and/or together with software without SCHINDLER-IT having checked the executability of the programs on this hardware and/or software. the interoperability of the programs with the software used by the customer before the beginning of the programming.
3.11. RIGHTS OF USE OF TRAINING DOCUMENTATION
All rights to the documentation (handouts, slides, scripts, etc.) provided by SCHINDLER-IT to the customer or made available to the customer in connection with training courses remain with SCHINDLER-IT. The customer undertakes to refrain from any dissemination and use of this training documentation beyond the customer's company and not to remove or change attached copyright notices.