Terms and Conditions

General Terms and Conditions of agenos GmbH

Translation for convenience. In case of doubt, the German version shall prevail.

§ 1 SCOPE

  1. agenos provides all deliveries and services exclusively on the basis of these General Terms and Conditions (GTC), which shall also apply to all transactions without the need for express renewed agreement.
  2. agenos shall not recognize any of the customer's terms and conditions that deviate in whole or in part from these GTC unless agenos has expressly agreed to them in writing. These GTC shall also apply exclusively if agenos performs its services without reservation while being aware of conflicting terms and conditions of the customer.

§ 2 CONTRACT OFFER, CONCLUSION OF CONTRACT, TERMINATION OF CONTRACT

  1. Offers from agenos are non-binding. Technical changes and cost-related changes remain reserved within reasonable limits.
  2. The customer's order is a binding offer. agenos is entitled to accept the customer's application for conclusion of the contract within 14 days after telephone order or dispatch of the order by the customer.
  3. Information about the service portfolio of agenos contained in brochures, advertisements, websites and similar publications, including price information, is non-binding and subject to change.
  4. The contract is concluded only upon countersignature of the customer's application by agenos or upon the first act of performance.

§ 3 WITHDRAWAL

  1. agenos reserves the right to withdraw from the contract by written declaration if the information provided does not match the data obtained during identity verification.
  2. The reasons for withdrawal by agenos shall be communicated to the customer so that the customer has the opportunity to remedy them.
  3. agenos may withdraw from the contract if agenos is unable to deliver as a result of non-delivery by a supplier for which agenos is not responsible, despite agenos having made all reasonable efforts to procure the supplied items.
  4. The customer's statutory right of withdrawal due to non-performance or non-contractual performance by agenos is excluded if agenos is not responsible for the breach of duty.
  5. If, after failed subsequent performance, the customer chooses to withdraw from the contract due to a defect, the customer shall otherwise not be entitled to any claim for damages due to the defect.

§ 4 PRICES AND PAYMENT

  1. General price information from agenos, for example in brochures or on the Internet, is non-binding.
  2. The prices apply to all deliveries and services by agenos. Shipping and packaging costs shall be invoiced separately.
  3. No separate travel costs shall be charged; working time begins with travel from the company headquarters and ends with travel back to the company headquarters.
  4. For new customers or first orders, agenos is entitled to request payment of the invoice amount before delivery. This may be done by advance payment or direct debit authorization.
  5. agenos is entitled, after conclusion of the contract, to request an appropriate advance payment of up to 30% of the purchase price or order amount.
  6. If more than four months elapse between conclusion of the contract and the agreed delivery or service date, or another delivery or service date requested by the customer and accepted by agenos, the prices of agenos valid at the time of performance, delivery or provision shall apply. If these exceed the initially agreed prices by more than ten percent, the customer is entitled to withdraw from the contract.
  7. The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by agenos.
  8. Objections to invoices issued by agenos GmbH must be raised in writing with agenos GmbH within a preclusive period of six weeks after receipt of the invoice. Otherwise, the invoice shall be deemed accepted. Claims under §§ 812 et seq. BGB remain unaffected.
  9. The following rule shall be deemed agreed with service contract customers:
  • support cases are communicated between the customer and agenos via the agenos support tool;
  • support cases are entered, tracked and, if applicable, objected to there;
  • after the first week of the following month, the support cases are billed, an invoice is created and sent to the customer by email;
  • this invoice must be paid;
  • objections may only be raised during processing and during the first week of the following month or after payment.
  1. The customer may only exercise a right of retention insofar as it is based on claims arising from the same contractual relationship.
  2. The assignment of claims against agenos to third parties is excluded unless agenos has expressly agreed to the assignment.

§ 5 DEFAULT OF PAYMENT

  1. agenos is entitled to charge default interest at the statutory rate in the event of default of payment.
  2. During default, the customer shall pay interest on monetary debts at a rate of five percentage points above the base interest rate. For legal transactions in which a consumer is not involved, the interest rate for claims for payment is eight percentage points above the base interest rate.
  3. agenos reserves the right to prove and assert higher damages caused by default.

§ 6 LIABILITY

  1. agenos shall be liable without limitation in cases of intent and gross negligence.
  2. In cases of simple negligence, agenos shall only be liable for breach of a material contractual obligation, the fulfillment of which is essential for the proper performance of the contract and on whose compliance the customer may regularly rely. In such cases, liability shall be limited to the foreseeable damage typical for the contract.
  3. Liability for culpable injury to life, body or health remains unaffected. This also applies to mandatory liability under the Product Liability Act.
  4. In all other respects, liability is excluded to the extent permitted by law.

§ 7 WARRANTY

  1. The customer shall inspect delivered goods and services immediately and notify agenos in writing of any defects without delay. If the customer fails to give such notice, the goods or services shall be deemed approved unless the defect was not recognizable during the inspection.
  2. In the event of defects, agenos shall initially be entitled to subsequent performance. agenos may, at its option, remedy the defect or provide a defect-free replacement delivery or service.
  3. If subsequent performance fails, the customer may, at its option, reduce the remuneration or withdraw from the contract in accordance with statutory provisions.
  4. Warranty claims shall be excluded if the customer or third parties make changes to the goods or services without the consent of agenos, unless the customer proves that the defect is not attributable to such change.

§ 8 MANUFACTURER WARRANTIES

  1. Manufacturer warranties are granted exclusively by the respective manufacturer. agenos does not assume any independent warranty unless this has been expressly agreed in writing.
  2. The customer shall comply with the warranty conditions of the respective manufacturer.

§ 9 RETENTION OF TITLE

  1. Delivered goods remain the property of agenos until full payment of all claims arising from the contractual relationship.
  2. The customer is obliged to treat goods subject to retention of title with care.
  3. In the event of seizures or other interventions by third parties, the customer must notify agenos immediately in writing.

§ 10 OBLIGATIONS OF THE CUSTOMER

  1. The customer assures that the data communicated to agenos are correct and complete. The customer undertakes to inform agenos immediately of any changes to the communicated data and, upon request from agenos, to confirm their current correctness again within 15 days of receipt.
  2. The customer is advised that it is the customer's responsibility to perform a data backup after each working day on which the data inventory has been changed by the customer or by the customer's vicarious agents.
  3. The customer shall perform a complete data backup in particular before any work by agenos begins or before installing delivered hardware or software.
  4. The customer shall thoroughly test each program for defects and usability in the customer's specific situation before operational use. This also applies to programs received from agenos as part of warranty and maintenance. The customer is expressly advised that even minor changes to the software may affect the operability of the entire system.
  5. Volume for additional data transfer will be provided by agenos, within the technical capabilities of the data center and taking into account performance obligations towards other customers, for an additional fee whose amount is determined by the respectively valid price list.
  6. The customer shall provide agenos without delay with all information required for the performance of services by agenos. The customer shall provide agenos with the documents required to carry out the work, in particular regarding devices, programs and program components intended to interact with the subject matter of the service.
  7. The customer is obliged to keep passwords secret. The customer shall be liable for damages caused by inadequate confidentiality of passwords or by disclosure to third parties.

§ 11 DATA PROTECTION

  1. agenos points out in accordance with § 33 BDSG that personal data are stored in the context of contract processing.
  2. agenos expressly points out to the customer that, according to the current state of the art, data protection for data transmissions in open networks such as the Internet cannot be fully guaranteed. The customer is aware that the provider can view the website content stored on the web server and possibly other data stored there from a technical perspective at any time. Other participants on the Internet may also be technically able to interfere with network security without authorization and monitor message traffic. The customer bears full responsibility and liability for the security of the data transmitted by the customer on the Internet and stored on web servers.

§ 12 REPAIR

  1. Repair services are provided on the basis of the agreed scope of services.
  2. The customer shall ensure that the devices or systems to be repaired are accessible and that all necessary information is made available to agenos.
  3. If a repair cannot be carried out or can only be carried out at disproportionate expense, agenos shall inform the customer. In such cases, the customer shall bear the costs incurred up to that point, unless agenos is responsible for the impossibility.

§ 13 SOFTWARE DEVELOPMENT

  1. The scope of software development services results from the respective offer, specification sheet or other contractual agreement.
  2. The customer is obliged to cooperate in the preparation of specifications, tests and acceptances to the extent required.
  3. Unless otherwise agreed, rights of use to individually developed software shall be granted only after full payment of the agreed remuneration.
  4. Changes or extensions requested by the customer after conclusion of the contract may lead to additional expense and shall be remunerated separately.

§ 14 SPECIAL PROVISIONS FOR IT MAINTENANCE/SERVICE SERVICES

  1. The scope and response times of IT maintenance and service services result from the respective contract or service description.
  2. Service periods and response times are only binding if expressly agreed in writing.
  3. The customer shall ensure that agenos has the necessary access to systems, documentation and contact persons.
  4. The customer remains responsible for regular data backups and for maintaining suitable emergency concepts.
  5. Services outside the agreed scope of services shall be remunerated separately.

§ 15 PROVISION OF SOFTWARE

  1. Unless otherwise agreed, software is provided only in object code.
  2. The customer receives a simple, non-exclusive right of use to the software for the contractually agreed scope.
  3. The customer may make backup copies only to the extent necessary for contractual use.
  4. The customer is not entitled to rent, lend, sublicense or otherwise make the software available to third parties unless this has been expressly permitted.
  5. The customer shall keep records of the location of external data carriers, which agenos may inspect.
  6. The customer is responsible for backing up the programs and data of the installed software.
  7. Reverse translation of the software into other code forms (decompilation) is only permitted within the scope of § 69e of the German Copyright Act. The acts referred to in that statutory provision may only be transferred to third parties if, after expiry of a reasonable period for consideration, agenos is not prepared to produce the desired interoperability for an appropriate fee.
  8. Copyright notices or other rights holder notices on data carriers and user documentation may not be removed.
  9. Ownership of the delivered user documentation and accompanying materials remains with agenos.
  10. This contract does not grant the customer the right to use the name or trademarks of agenos.
  11. If the manufacturer's license terms relating to the software grant the customer more extensive rights of use or impose more extensive restrictions on use than these terms of agenos, the manufacturer's provisions on rights of use shall take precedence.
  12. If the customer breaches any provision of this § 15, agenos may terminate the right of use granted to the customer in writing with immediate effect after an unsuccessful reasonable grace period, without refunding the license fee.

§ 16 TRAINING SERVICES

  1. The agreement on the performance of training services is subject to the condition that the minimum number of participants specified by agenos is reached.
  2. The content of the training services results from the respective training program. The customer has no claim to specific training personnel. The training location and period may be changed by the supplier for good cause, provided this is reasonable for the customer.
  3. The customer may withdraw from the contract for training services by written declaration no later than five working days before the start of training. If the customer does not attend the training and has not declared withdrawal in due time, the customer shall pay half of the agreed remuneration.
  4. If the customer does not attend the training and declares withdrawal later than five working days before the start of training, the customer shall pay the agreed remuneration in full.
  5. agenos may have its services performed by third parties.

§ 17 EXPORT

  1. The export of software and hardware with encryption properties from a country or the import into a country, as well as the use of this technology in a country, may be subject to registration and approval requirements or may be prohibited. It is the customer's obligation to comply with such requirements. The import of this technology into the Federal Republic of Germany is not subject to control.
  2. Export by agenos is subject to approval by the competent authority on the day of export. If an export license is refused, agenos is entitled to withdraw from the contract. No claim for damages due to delay in export caused by the duration of the approval procedure may be asserted.
  3. The use of services of agenos, in particular the use of software and hardware with encryption properties necessary for this purpose, may be prohibited under penalty outside the
    Federal Republic of Germany. It is the customer's obligation to obtain knowledge of this and to observe possible prohibitions. This may also apply to short-term stays in such a country.

§ 18 FINAL PROVISIONS

  1. The place of performance for all our services is Weimar. The place of performance is the place of jurisdiction, without prejudice to agenos's right to choose a statutory place of jurisdiction.
  2. Should provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. Rather, the parties undertake to agree, in place of each invalid provision, on a substitute provision that corresponds to or at least comes as close as possible to the purpose of the agreement. The same applies to omissions.
  3. The contractual relationships of the contracting parties are governed by the law of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
  4. The contract language is German.