AGB

Terms and conditions

Terms and conditions

§ 1 Application

1. These terms and conditions shall apply to all current and future products and services provided by or to the contracting parties, in particular the conclusion, content and implementation of IT services and the delivery of software licences. S4-Analytics shall only provide services under the following conditions, unless agreed otherwise. 

2. Services and deliveries will be defined individually on the basis of these terms and conditions. All offers made by S4-Analytics are non-binding and subject to confirmation. Orders are only considered as accepted once confirmed in writing by S4-Analytics or once the agreed upon service has been delivered. S4-Analytics reserves the right to make reasonable technical and design deviations from information in prospectuses, catalogues and written documentations as well as model, constructions and material changes, due to technical progress or changes in the market, without the client being able to make claims against S4-Analytics for these reasons. 
 
§ 2 Payment terms 

1. The VAT rate which is legally applicable at the time the contract is concluded is to be added to all prices stated. For recurring or permanent services, the VAT rate valid at the time each invoice is due shall apply. 

2. One-off contractual payments (one-off usage fee for software, hardware sale price, fees for one-off services) shall be due 14 days after the goods or services have been performed or delivered. All payments must be made by the due date with no deductions. 

3. The specified rate for services is based on an 8-hour workday. Expenses are to be reimbursed according to the allowances specified in the offer. Costs emitting from special services and services provided due to incomplete or incorrect statements made by the client, unverifiable complaints regarding defects or inappropriate system use are to be paid by the client. 

4. S4-Analytics has the right to credit client payments firstly against the oldest outstanding payment, as well as firstly against expenses, then against interests and finally against the main amount owed, even if requested otherwise by the client. 

5. The customer may only offset S4-Analytics’ claims against them with such counterclaims that are legally established or undisputed.  

§ 3 Retention of title 

1. Contractually delivered goods shall remain the property of S4-Analytics until all goods provided to the client by S4-Analytics have been paid in full. This also applies to programme instances that shall be delivered on data carriers or transmitted online and to all accompanying materials. If usage rights only are granted for software, the previous provision shall also apply to all transferred data media. 

2. The client has the right to process, modify or otherwise adapt the retained good to their own needs or sell it in normal business transactions as long as they are not in default of payment or S4-Analytics’ licensing conditions do not forbid it. Pledging and transfer of ownership by way of security are not permitted. Upon signing the contract, the client agrees to immediately assign to S4-Analytics any claims arising from resale or other legal reasons, according to S4-Analytics’ co-ownership share of the product. Subject to revocation at any time, S4-Analytics authorises the client to collect in their own name the claims for their invoices which have been assigned to S4-Analytics. Upon S4-Analytics’ request, the client shall disclose the assignment, make available any required information and submit any relevant documents to S4-Analytics. 

3. In the event that third parties access the goods subject to reservation of title, particularly in the case of pledging, the client is obligated to inform the third parties of S4-Analytics’ ownership and notify S4-Analytics immediately. In the event that the client behaves in a way which goes against the terms of this contract, in particular in case of default of payment, S4-Analytics has the right to take back the goods at the client's expense or to require the assignment of the client's claim for restoration against a third party. The withdrawal of the goods by S4-Analytics shall not be regarded as a withdrawal of the contract. Processing or modification by the customer shall always be done for S4-Analytics as the manufacturer, nonetheless without obligation for S4-Analytics. If S4-Analytics’ ownership expires through processing, combining or mixing, the client's ownership or co-ownership of the complete item shall be transferred to S4-Analytics in proportion to the item’s invoice value, not including legally applicable VAT. The client shall maintain S4-Analytics’ ownership or co-ownership free of charge.

§ 4 Default of payment 

1. In the event that the client is in default of payment of over 25% of the price excluding legally applicable VAT for a period exceeding 4 weeks, S4-Analytics may, without prejudice to any of its other rights, take back its hardware and software and use them elsewhere. 

§ 5 Delivery

1. Programmes are delivered on data media specified in the offer. S4-Analytics shall choose the delivery method and the type of packaging used for transport according to its best judgement. Deliveries and passage of risk are considered as completed when the programme, including any support material, is handed to the client, excepting if it is sent. If it is sent, risk is transferred to the client as soon as the delivery is handed over to the person carrying out the transport by S4-Analytics. If delivery is delayed or made impossible at no fault of S4-Analytics, the risk shall be transferred to the client upon notification of readiness to dispatch. Any insurance of the goods against transport damage shall be taken out exclusively at the express request of the client and at their charge. 

2. The client is obligated to accept the delivery of products and services by S4-Analytics within the agreed upon deadline. The dates and deadlines specified by S4-Analytics are not binding unless something else has been agreed expressly in writing. All delivery dates shall be conditional on correct and punctual delivery to S4-Analytics. In the event of an extension to delivery or service deadlines for which neither party is responsible, the customer shall not be entitled to any damage claims. 

§ 6 Liability for material defects and defects of title 

1. If the whole or part of the products sold by S4-Analytics, whether newly manufactured or intended for use, have any faults at the time of delivery which significantly prevent their use for the intended service as specified in the contract, the client can only request rectification within their liability for material defects and defects of title. Products are not to be considered as defective if they essentially meet the specifications detailed in the programme’s documentation. Rectification may not be attempted if it would entail disproportionate effort. There is generally no cost for rectification. If the client takes the products bought to another location than their home or company’s registered HQ after delivery, they shall bear the additional expenses incurred by rectification if the relocation of the products does not correspond to their intended use. If the rectification claim is declined or if the defects cannot be repaired within the 3 months following notification, the client can assert their legal warranty rights, in particular, a reduction to their licence fee.  

2. S4-Analytics provides consulting and other services to the best of its knowledge, according to the standards applicable to the programme and service in question and with the aim of enabling part of the client’s work with the product. There is no guarantee of the services’ success. 

3. Complaints of defects are to describe the defect and the operating steps which lead to it in as much detail as possible and to be made in writing, immediately after the first malfunction or error message. Client attempts to rectify errors on their own often lead to further damage, for which S4-Analytics is not liable. In particular, S4-Analytics is not liable for damage which can be traced back to by improper handling, operation or input; incorrect installation or use; unauthorised modifications to the source code or usage with an unreleased operating system or other programmes in a way that goes against the contract. Any further commercial duties of the client concerning the examination of the goods and giving notice of defects remain unaffected. If the reported defect proves to be the result of any of the above-mentioned circumstances, the client is to reimburse S4-Analytics for any expenses incurred due to this according to the relevant sections of the up-to-date price list for services. S4-Analytics is, however, not obligated to provide the service in question. This also applies to cases in which these circumstances significantly complicate, prevent or increase S4-Analytics’ rectification work. 

4. Claims of quality defects are limited to 12 months. 
 
§ 7 Liability

1. S4-Analytics shall be liable for intent and gross negligence, for initial incapacity, delay and impossibility, for the existence of the promised features, also with respect to the vicarious agents, nevertheless respectively limited to contractually typical, foreseeable damages. Furthermore, all liability is excluded. This also applies to loss of data and other consequential damages. In the event of ordinary or simple negligence, liability shall be restricted to the amount paid for the one-off fee for the licence programme in question, or to the amount paid for the partial delivery during which the damage was caused. A requirement of liability to reconstruct data is that the client’s data was stored in a sufficiently up-to-date and complete state and that reconstruction is possible at a reasonable cost. 

§ 8 Client obligations 

1. The client undertakes to ensure that all the prerequisites which are necessary for the implementation of the services agreed upon in the contract are in place. In particular, one of these prerequisites is for the client to make workspaces including all necessary equipment available to S4-Analytics’ employees according to their needs; provide sufficient, unobstructed computing time according to priorities and requirements; make test data and other tools required for work available on time; fully, truthfully and willingly share all information necessary to the project with S4-Analytics and its employees; submit all required documents, permits, software parts, etc. on time; mobilise their own employees available to support S4-Analytics and manage operating and system maintenance. 

2. The functional capability of the products and the provided consulting service is to be confirmed by the client through a declaration of acceptance. Acceptance shall also be considered declared if S4-Analytics declares that installation is finished, the client starts using the product(s) and does not report any missing or inadequate service in writing within two weeks. The client shall be liable without limitation for any infringement of these contractual obligations. S4-Analytics shall only be bound to binding delivery deadlines according to § 5 of these terms and conditions as long as the client meets their obligations from § 8. 

§ 9 S4-Analytics’ copyrights 

1. S4-Analytics remains the owner of all rights to the programmes provided to the client, all rights to parts of this software and software derived entirely or partially from it, including the associated materials. This applies even if the client modifies the programme to an extent permitted by the contract or combines it with their own programmes or that of a third party. S4-Analytics remains free to use and sell results achieved through or as an indirect result of work commissioned by the client such as computer programmes, ideas, methods, behaviour and know-how in its own name as wished. In particular, this includes publishing, copying, distributing, adapting, modifying and integrating or incorporating into other software. The client may not remove S4-Analytics identifiers, copyright or proprietary notices from programmes and must keep them in any copies made. S4-Analytics exempts the client from all third-party claims against the client of property rights relating to programmes developed and made available by S4-Analytics as they are described in the contract. The application of this liability is valid on the precondition that the client makes no statement, orally or in writing, to the third party about the copyright infringement and, in particular, does not recognise any rights or circumstances or claim any liability. Furthermore, the client may not have connected the programme with any other programmes without the prior written agreement of S4-Analytics, or have improperly used the programme. S4-Analytics has the right to make necessary changes to its programmes at its own expense due to third party claims of copyright violation on the client’s behalf. The client cannot derive any contractual rights from this. The client must immediately inform S4-Analytics in writing if they have been charged with a violation of commercial protection and copyrights for a product supplied by S4-Analytics. The client may only use the programme for their own purposes, if not specifically agreed otherwise. The client may only make copies of the programme(s) provided to them for security reasons. Provided documents, users manuals, etc. may only be copied with the prior written extent of S4-Analytics. The customer shall be liable to S4-Analytics for all damage resulting from the breach of the above client obligations. 
 
§ 10 Advertising

1. Once the contract is signed, S4-Analytics has the right to refer to the contractual relationship and publicly advertise with it in a reference list stating the client’s company. 

§ 11 Poaching ban 

1. The client undertakes not to employ any S4-Analytics employees, either as an employee or a freelancer, whilst the two companies are working together on a project and for the following six months. For each case of the culpable infringement the client must pay a conventional penalty of EUR 8000 to S4-Analytics. The right to claim damages over and above this amount remains unaffected. 
 
§ 12 Transfer of rights 

1. The customer shall only be entitled to transfer any rights arising out of the contract with the prior agreement of S4-Analytics. S4-Analytics has the right to have any of its obligations met by a third party. In this case, S4-Analytics is still to properly fulfil its contractual obligations to the client as a contracting partner and the client is to accept the services performed by S4-Analytics. 

§ 13 Contract term, notice

1. The contract term will be specified in a special contract based on these terms and conditions. The legal provisions apply to the premature termination of this contract. 
 
§ 14 Place of jurisdiction 

1. Überlingen, Germany (Bodenseekreis district court) shall be the agreed place of jurisdiction for commercial customers. 
 
§ 15 Final provisions 

1. Subsequent supplements or amendments to the concluded agreements must be made in writing. Verbal waiver of the written form requirement is not permitted. 

The law of the Federal Republic of Germany shall apply. The provisions of the uniform international law on sale of goods are invalid as far as possible. 

Should one or more provisions of these terms and any further conditions and agreements based on them be or become invalid or contain any loopholes, this shall not affect the validity of the remaining provisions. The invalid provisions or loophole in the contract are to be replaced by an appropriate arrangement that the contracting parties want or would have intended with the original provision’s meaning purpose, had they considered the invalidity or loophole. 

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