§ 1 Scope of application
The following terms and conditions are part of every offer of Keßler Real Estate Solutions GmbH (Keßler) to which they are attached. They supplement the individual contractual agreements if the client places an order with Keßler for the services in the offer. In case of deviations between individual contractual regulations and these terms and conditions, the individual contractual regulations take precedence.
II. validity for future orders
The terms and conditions shall also apply to future orders of the client to Keßler regarding data management, software, as well as related services and work without the need for repeated explicit inclusion. If the client is an entrepreneur, a legal entity under public law or a special fund under public law, the terms and conditions shall apply to the entire business relationship without restriction to the types of business mentioned above.
§ 2 Placing of orders
I. Non-binding nature of the offers
The offers are subject to change and non-binding.
II. placing of order
An acceptance of an offer under rejection of these terms and conditions and/or under inclusion of general terms and conditions of the client is treated by Keßler as a counter-offer of the client. If Keßler does not expressly accept the counter-offer, no contract is concluded under the terms of the counter-offer. If Keßler, in agreement with the client, begins with the execution of an order without anything else being agreed upon, the offer shall be deemed to have been accepted by the client in case of doubt.
III. Individual agreements
All individual contractual provisions concerning the content or execution of an order which deviate from the offer must be in writing.
The commercial employees of Keßler are not authorized to make verbal subsidiary agreements or to give verbal assurances or guarantees which go beyond the content of the offer.
Declarations of intent and other communications to be made in connection with an order may be made in writing, orally or otherwise. They may be transmitted by any known means of communication, in particular via the Internet. The communication channels specified for the transaction, in particular e-mail addresses or fax numbers, shall be used for this purpose. Commercial employees of Keßler are only authorized to receive declarations of intent and other communications within the scope of their area of responsibility known to the client, other declarations of intent and communications they forward as messengers of declaration of the client.
Declarations of intent need only be treated as legally binding if they identify the person making the declaration with sufficient certainty and if it is ensured that the declaration has not been altered during transmission. This is assumed for declarations in written form, for faxes and in digitally signed text form. In the case of declarations of intent transmitted by telephone, telegraph, wireless, telex or other appropriate technical means as well as unsigned documents, Keßler reserves the right to obtain a confirmation that appears suitable.
§ 3 Prices, invoicing, payment
The prices quoted do not include the statutory value added tax.
Unless a fixed price has been agreed in the order, all information provided by Keßler regarding the expected time and cost of the order are non-binding estimates based on the requirements specified by the client. The client will be informed immediately of any significant exceedances of the information provided. Exceeding the estimated rate by more than 15 % shall be deemed material.
III. interest on arrears
If the payment dates specified in the offer or invoices are exceeded, the customer shall be in default without further ado. If no payment dates are specified separately in the offer or invoice, invoiced services are due immediately. During the period of default, interest at a rate of 8% above the base interest rate shall be charged by the client on claims for payment by Keßler, unless the client is a consumer. This shall not affect the right to assert any further damage caused by default.
IV. Cheques, bills of exchange
Cheques and bills of exchange are only considered as payment after encashment, Keßler expressly reserves the right to refuse cheques or bills of exchange. Discount and bill charges are at the expense of the customer and are due immediately.
V. Reservation of rights
Sold items and embodied work results remain the property of Keßler until complete payment by the client. Insofar as the client is to receive rights under the terms of the order, in particular industrial property rights to work results or other services as consideration for payments, these shall be granted under the suspensive condition of full payment of the consideration. Keßler permits the use of objects to which the client receives rights subject to a condition precedent until the occurrence of the condition or until it is certain that the condition will not occur.
VI. Set-off and set-off
Keßler is entitled, despite other provisions of the client, to first set off payments against his older debts and will inform the client about the type of set-off. If costs and interest have already been incurred, Keßler is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
VII. set-off prohibitions
The customer shall only be entitled to set-off if the counterclaim is undisputed or legally established. However, the customer shall also be entitled to withhold payment due to counterclaims arising from the same contractual relationship.
§ 4 Additional Expenses, Accommodation and Travel
I. Additional expenses, additional services, travel times
Services rendered by Keßler for the customer shall be remunerated in accordance with the price lists valid at the time. Services which are not included in the price list will be invoiced in case of doubt according to time spent in units of time per quarter working hour or part thereof. This shall also apply to necessary additional expenses, additional services and performances which, in addition to a usual basic service, are rendered on behalf of or in accordance with the principles of the management without a mandate in the interest of the customer or which become necessary in connection with the business relationship with the customer. Travelling times are working hours. Travel expenses shall be reimbursed separately.
For work assignments which are more than 100 km away from Keßler’s headquarters as the crow flies, the client shall organise appropriate overnight accommodation for Keßler at his own expense. Alternatively, Keßler may charge the client reasonable accommodation costs.
III. Other costs and expenses
The client may be invoiced for all costs and expenses incurred in connection with transactions which Keßler might consider necessary and which exceed the general business costs. Possible fees of the offices for surveying documents or other external services are not included in the offer.
§ 5 Software licenses
I. Scope of delivery
Unless otherwise agreed, Keßler’s obligation to supply software comprises the provision of the executable program including an appropriate description which enables the use of the program (user documentation). The user guidance and the user documentation may be written in English. A printed manual shall only be included in the scope of delivery if this has been expressly agreed. Keßler guarantees for software that it is executable on certain hardware configurations and can interact with certain other computer programs. In the case of standard software, these operating conditions result from the respective hardware and software requirements, which the customer can also request from Keßler before placing an order, and in the case of individual software from the project description. The use risk for the use of delivered software on other hardware configurations or for interaction with other computer programs than those specified in the conditions of use lies with the customer. The client receives patches within the scope of error correction. Otherwise, a claim to patches and updates exists exclusively within the framework of a maintenance contract. If the client does not conclude a maintenance contract within the first half year after commissioning the software, the maintenance fee for the first year is doubled. Unless expressly agreed otherwise in the maintenance contract, upgrades shall be purchased separately.
II. license conditions
The license conditions of third-party software supplied by Keßler apply. Insofar as the rights to the delivered software lie with Keßler itself, Keßler permits the customer (licensee), unless otherwise agreed, to use the software non-exclusively in the Federal Republic of Germany during the licence period. Keßler reserves the right to change such software in order to eliminate errors or increase performance. The permission of use is hereinafter referred to as license. Irrespective of the license, no rights to the software are transferred to the licensee. This applies in particular to all copies or partial copies of the Software made by the Licensee and without prejudice to ownership of machine-readable recording media, data storage media or computers. Licensee may not modify or remove the serial numbers, program identification features, copyright notices and other proprietary notices contained in the Software. They are to be incorporated into all produced complete and partial copies in unchanged form. The licensee is not entitled to make changes, translations, other adaptations or alterations to the software. The user interface of the Software may not be redesigned. A retranslation of the software into the form of source code or into other forms of representation is also excluded. The software may not be made accessible to third parties either in the original or in the form of complete or partial copies without express prior consent. This shall also apply in the event of a complete or partial sale or dissolution of the licensee’s company. The Client’s employees or other persons shall not be deemed third parties as long as they are with the Licensee for the contractual use of the Software. Such persons must be expressly advised of compliance with the license conditions and the copyright.
III. license term
In case of doubt, the license begins with the time at which the software is made available to the customer by Keßler. The license is granted for an indefinite period, excluding the right to ordinary termination. The right to terminate the license for good cause remains unaffected. An important reason exists in particular if the licensee does not pay the license fee on maturity or violates essential license conditions.
IV. Right of use
The right of use includes the computer program, including patches and updates of the licensed computer program obtained by the customer, in executable form and the manual as well as other works provided to the licensee together with the software (subject of the license). On the basis of the right of use, the Licensee is permitted to reproduce the executable computer program for loading, displaying, running or storing once permanently and temporarily without limitation. At the same time, the computer program may only run on one computer. The licensee may store and use the computer program on another computer, provided that it is completely deleted from the computer on which it was originally stored. The use within a network or other multi-station computer system is not permitted without an expressly related license or if this is necessary for the contractually presupposed use. The Licensee’s right of use includes the right to make a backup copy to secure future use of the computer program and the right to observe, examine and test the computer program using the possibilities of use granted herein. Insofar as the documentation made available to the Licensee together with the Software does not contain the information that is essential for creating interoperability with third-party software, the code may be duplicated or decompiled for this purpose within the framework of the statutory provisions.
V. Individual Software
A project that involves the creation of individual software by Keßler ends with a joint examination of the software using a coordinated test procedure. The test is successful if the computer programs meet the requirements specified in the project description. Keßler will announce the completion and delivery of the software to the client in good time. The client must then provide the agreed test environment and the software must be thoroughly tested within four weeks of delivery. After successful completion of the test procedure, approval of the services must be declared by Keßler. Errors on the basis of which the client wishes to refuse approval must be reported to Keßler immediately in writing or by e-mail and will be remedied free of charge. In order to remedy the defect, the client must provide Keßler with remote access to the system for an unlimited period of time. The software will then be made available again for testing. The client must declare his approval of the software within four weeks of the written or e-mail notification of the error correction by Keßler or give notice of defects in writing or by e-mail which not only insignificantly restrict the usability. Otherwise the software shall be deemed to have been approved. Insignificant defects do not entitle the client to refuse the approval of the software, but they are recorded as defects and are subject to warranty. With express or fictitious approval after expiry of the deadline, the remuneration of Keßler for the individual adaptation of the software becomes due.
Within six months of delivery, defects reported by the customer will be classified by Keßler in defect classes A, B and C. Errors which prevent or considerably restrict the use of the software will be classified in error class A. Keßler shall begin with the elimination of the error immediately after receipt of the error message and shall eliminate these errors promptly within the scope of the available capacities. Errors which impede the use of the software, i.e. considerably restrict it, but which can be circumvented with reasonable manual effort for the customer, are classified as error class B. Keßler begins with the error correction immediately after receipt of the error message and removes these errors as a rule with the next service pack, at the latest within two months after receipt of the error message. Other errors (error class C) will be documented by Keßler and eliminated within one year at the latest within the scope of updates. Keßler provides service packs or patches electronically for download in the archive and informs the customer of this. In its packed state, the archive contains the object programs and any necessary user documentation.
§ 6 Projects
I. Project scope
The scope of the services to be provided by Keßler within the scope of an order results from the project description in the offer. The work carried out by Keßler within the framework of an order is purely a service and as such must be remunerated in accordance with the price list according to the time and material expenses incurred, unless otherwise agreed.
Date specifications from Keßler are only binding if they have been expressly agreed. Additional costs for overtime, which are caused by special date desires of the client, are calculated separately. If Keßler is prevented from rendering services by circumstances for which Keßler is not responsible, the binding performance deadlines specified in the project description shall be extended by the period in which the prevention exists and a reasonable start-up period thereafter. The same applies to the period in which Keßler waits for information or cooperation of the client.
III. change in performance
The project description can be changed by mutual agreement during an order at the suggestion of Keßler or the client. The change proposal should be addressed to the project manager of the other contracting party and should describe the scope of the change. The change proposals of the client should contain those details which enable Keßler to determine the effects on project implementation, costs and deadlines. Keßler’s proposed changes will contain an estimate of the aforementioned effects. The other contracting party must state within 10 days after receipt of the change proposal whether it agrees to the change of the project description. As long as there is no agreement on the amendment of the project description, the services agreed within the scope of the project description shall continue to apply unchanged. The client has the right to demand changes to the project description if this is necessary due to operational requirements. Keßler can reject such a request for change, unless the execution only imposes an insignificant burden on the operational performance of Keßler. If, in the course of the implementation of the project, circumstances become apparent to Keßler which cast doubt on the success of the project or the adherence to the project plan, Keßler will inform the client accordingly. The client must then make the necessary decisions to ensure that the project can be continued without delay.
§ 7 Cooperation of the Client
The client is obliged to enable Keßler to perform the business in accordance with the contract. In particular, the following duties of cooperation apply to him:
The client is obliged to carefully transmit declarations of intent and notifications. In the case of declarations of intent or other communications made by telephone, telegraph, wireless or other appropriate technical means, he shall ensure that no transmission errors, misunderstandings, abuses or errors can occur. The customer must expressly refer to special instructions for the execution of transactions. This applies in particular to deadlines and dates which must be observed. The customer shall provide all documents and information required for the execution of the transactions. This applies in particular to documentation on existing systems, programs and program parts which are to cooperate with the services of Keßler and order-related plans and documents for the building whose inventory is to be recorded.
The client must report any errors found in a comprehensible manner. For this purpose, all information useful for determining the cause of the defect shall be attached to the notification. In the case of complex or difficult to trace errors, the client will support Keßler in tracing the error and, if necessary, enable tests to be carried out on his system. The client must adopt patches and updates made available as part of a maintenance order in order to expand and improve performance. Such changes may make it necessary for the customer to replace or adapt earlier versions of the software. In order to record and digitise the building stock, the client shall ensure its accessibility, freedom of measurement and accessibility as well as the lighting.
§ 8 Confidentiality and data protection
Both Keßler and the client shall treat all knowledge and information disclosed to them in the course of the business transaction or otherwise made known to them confidentially and shall maintain secrecy vis-à-vis outsiders. Information recognizable as company and business secrets shall be protected against unauthorized dissemination by appropriate measures. Information that has been transmitted in encrypted form by one contracting party to the other shall be treated by the recipient as an alien secret, unless the information is obvious or the transmitting party clearly has no interest in the secrecy. As long as there are no special provisions in individual contracts, disclosure to vicarious agents shall not be deemed a breach of the duty of confidentiality as long as the vicarious agents have been personally obliged to maintain confidentiality. When transmitting information between Keßler and the client, care must be taken to ensure adequate security of the transmission path. The unencrypted transmission of information by e-mail shall not be deemed a breach of the obligation to confidentiality as long as the open transmission by e-mail has not been expressly objected to or an obligation to encrypt e-mail has not been agreed.
The client himself is responsible for compliance with the regulatory provisions applicable to him, in particular the Teleservices Data Protection Act and the Federal Data Protection Act. The client is obliged to provide Keßler with the information required to fulfil legal obligations, in particular any recording and reporting obligations. The client’s responsibility under data protection law for the legality of storage and transmission, for the maintenance of the data register, for the notification of the person concerned as well as the duty to provide information to the person concerned remains unaffected.
III. order data processing
Keßler will observe the principles of proper data processing and continuously monitor compliance with them when carrying out orders which relate to the collection, processing or use of personal data for the client (§ 11 BDSG). Keßler guarantees the legally required security measures within the framework of the proper processing of the orders and will prove these to the customer upon request. Keßler processes personal data exclusively in accordance with the instructions of the client contained in the order or given in individual cases. Insofar as no special stipulations are contained in the service description, Keßler shall take organisational and technical measures on behalf of the client, with the care which is also applied in its own affairs, to bring about rational processing and to secure the data against loss; the content of files shall not be altered in the process. If the customer subsequently requests changes to the agreed procedure or additional security measures, he shall reimburse any additional expenditure on an expense basis.
IV. Data secrecy
The employees of Keßler are bound in writing to data secrecy (§ 5 BDSG). On request, the client will receive copies of the declarations of obligation against reimbursement of costs.
V. Continuing Confidentiality
The obligation to confidentiality shall continue regardless of the termination of the entire business relationship or individual orders.
§ 9 Limitation of liability
Liability for loss of profit, savings not made, indirect damage and consequential damage is excluded. When transferring transactions for independent execution to third parties, Keßler is only liable for the transfer of the transaction including careful selection and instruction of the third party.
II. Limitation of the liability sum
The liability is limited to the damage typical for the contract, the occurrence of which Keßler had to reckon with when submitting an offer due to the circumstances known to Keßler at that time. Exceptionally high damages will only be compensated if the customer has expressly pointed out this possibility. However, the liability shall in no case exceed the amount of the total remuneration in the offer.
III. statute of limitations
For claims of the client against Keßler, regardless of the legal basis, a limitation period of one year from the legal beginning of the limitation period applies.
IV. Extension to vicarious agents and assistants
The limitations of liability and simplifications of the limitation period mentioned in the previous paragraphs shall also apply in favour of Keßler’s vicarious agents.
V. Exceptions to limitations of liability & facilitation of the statute of limitations
The limitations of liability and simplifications of the limitation period mentioned in the previous paragraphs shall not apply to damages which are based on intent or gross negligence or the slightly negligent violation of essential contractual obligations in a manner endangering the achievement of the purpose of the contract, for damages arising from the violation of a guarantee, life, limb or health and for possible claims based on the Product Liability Act.
§ 10 Changes
I. Terms and conditions
Keßler reserves the right to review these terms and conditions and to adapt them with effect for future business. The currently valid version can be found at http://www.kesslersolutions.de/agb . Orders placed which are not completely fulfilled by both parties will only be affected by a change to these terms and conditions if Keßler expressly notifies the client of the change and the client does not object to the change within one month. In this notification, Keßler will expressly point out the possibility of objection.
II. price adjustments
In the case of contracts which are not completely fulfilled by both parties and which are not concluded for a specific period, Keßler can adjust the remuneration at its own discretion with effect from the point in time at which the next ordinary termination would become effective. Keßler will inform the client of this adjustment and inform him of the possibility of terminating the contract. If the client does not terminate the contract, the changed remuneration is deemed to have been agreed.
§ 11 Other agreements
I. Applicable law
The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between the customer and the contractor to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
II. place of jurisdiction
For all disputes arising from the contractual relationship, if the client is an entrepreneur, a legal entity under public law or a special fund under public law, the action must be brought before the court responsible for the head office of Keßler. Keßler is also entitled to sue at the customer’s headquarters.
III. uniformity of the offer / partial invalidity
The offer and these terms and conditions represent an economic and legal unit, so that in case of doubt a contract for the services described in the offer would not have been concluded by Keßler without the validity of these terms and conditions. All references in these terms and conditions to an offer are therefore to be understood as references to the offer together with these terms and conditions, unless the context clearly indicates otherwise. Notwithstanding this, the legal validity of an order and the validity of the provisions or agreements shall not be affected in case of doubt by the fact that individual provisions in the offer (including these terms and conditions) or individual individual agreements are or become invalid.
IV. Reference List
After placing the order, Keßler is entitled to include the client in its reference list. Before publication, the contents of the publication will be announced to the client and agreed with him.
V. Wooing prohibition
The client will not entice away, commission or otherwise employ employees of Keßler employed by him within the scope of projects (e.g. by orders on his own account). This obligation shall continue to apply two years after completion of an order.
Keßler is entitled to assign the work handed over for execution within the scope of an order to third parties in whole or in part. If third parties are involved in the context of order data processing (§11 BDSG), the agreements to be made with the third party must be designed in such a way that they comply with the data protection provisions in the contractual relationship between Keßler and the customer and contain a written obligation of the third party to maintain data secrecy (§5 BDSG). In addition, the third party must commit itself to a written obligation of its employees to data secrecy.
VII. public holiday regulation
Unless expressly agreed otherwise, the public holiday regulation at Kessler’s registered office shall apply to the calculation of deadlines with regard to Keßler and, with regard to the client, the public holiday regulation at the place of performance agreed in the order.
VIII. Settlement relationship
Even after termination of the entire business relationship or individual orders, the terms and conditions shall continue to apply for the settlement and to the extent corresponding to the settlement relationship.
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