THIS DOCUMENT IS A TRANSLATION FOR THE STANDARD BUSINESS TERMS (AGB) APPLIED BY CMS HAIDER THE CURRENT VERSION OF THE (LEGALLY BINDING) GERMAN TEXT IS AVAILABLE AT https://haider.vc/agb.html
(1.) All services are carried out by CMS HAIDER GmbH, Stepbergweg 5, 82491 Grainau, Germany or its subsidiaries (hereinafter titled as “CMS”) solely on the basis of these Standard Business Terms. Diverging Standard Business Terms of any client shall not apply, even if their consideration has not been expressly been refuted by CMS. By concluding or initiating a contract with CMS or by using one of CMS’s online services you as a natural or legal entity agree to these Standard Business Terms (SBT). These Standard Business Terms constitute the conditions of a contract between you or the organization you represent (hereinafter “Client”) and CMS.
(2.) By concluding or initiating a contract with CMS, by requesting an offer, or by using a service operated by CMS, you, as a natural or legal person, agree to these terms and conditions. These terms become part of the contract between you or the organization you represent (hereinafter referred to as the "client" or "customer") and CMS. These Standard Business Terms only apply if the customer is an entrepreneur (§ 14 BGB), a legal person under public law or a special fund under public law.
(3.) CMS reserves the right to amend or change these terms and conditions at any time in the future, e.g. if this becomes necessary due to changes in the services offered by CMS, for security reasons or changes in legislation or case law. Any service by CMS will be provided from this point forward on the basis of the current version of these Standard Business Terms. If you are in an ongoing contractual relationship with CMS, in which CMS provides services based on these Standard Business Terms, CMS will notify you in advance of the change in the terms and conditions if the terms and conditions are changed in a not insignificant manner. The notification can also be sent to the email address you provided. The changed terms and conditions will take effect six (6) weeks after this notification, unless you object to the change in due time. In this case, CMS reserves the right to terminate the current contractual relationship with you properly at the next possible time. The continued use of the services of CMS after this period of six (6) weeks without objection, or the acceptance of the changed terms and conditions for another order, constitutes approval of the changed terms and conditions for all contractual relationships with CMS. You can download the current version of the See the terms and conditions at any time at the following Internet address: https://www.cms-haider.com/agb/
(4.) Insofar as declarations or notifications relating to the contract must be made in writing in accordance with these Standard Business Terms, text form is also sufficient for this purpose, e.g. by letter, e-mail or fax.
(5.) References to the current legal regulations are only occur for the purpose of clarification. Therefore, even without such a clarification, the statutory provisions apply, unless they are directly modified or expressly excluded in these Standard Business Terms.
(1.) “Hardware Products” include comprises physical components, devices and systems as well as their accessories and auxiliary equipment.
(2.) “Software Products” include computer software, application modules, media, printed material, as well as documentation. A Software Product furthermore includes all Updates, extensions and add-ons for the originally delivered or subscribed Software Product.
(3.) “Subscriptions” comprehend all licensing and hosting services, e.g. the renting and operation of Software Products, as well as the processing and storage of data.
(4.) An “Upgrade” describes the enrichment of an existing Software Product or Subscription with additional features and characteristics. These are in particular (i.) additional functions and application modules, (ii.) an increased number of user accounts or (iii.) an increased amount of traffic or storage. Similarly, a “Downgrade” describes the depreciation of existing features and characteristics.
(5.) An “Update” comprehends a collection of changes in order to decrease the number or errors or increase the functionality of an existing Software Product or Subscription.
(6.) “Services” enclose any services performed by CMS or one of CMS’s affiliates.
(1.) CMS undertakes to provide the services set out in this SBT for the Client at the agreed-upon quality and deadlines.
(2.) Free-of-charge services and/or products provided by CMS may be terminated at any time without prior notification. The Client cannot demand the continuing of the free-of-charge services and/or products. Also, no claims for refund or damages derive from this.
(3.) CMS will prepare all offers and perform all services on the basis of a written requirement specification created by the Client. The accuracy of the offer is always dependant on the precision of the written requirement specification by the Client. CMS cannot confirm any possible price or time deviations, in particular if type and scope of the respective project change during its term.
(4.) All services provided by CMS require the Client's approval within four weeks from the date of full delivery. If the Client does not make a declaration of approval of the service within the four-week period, the delivered services (particularly software) will automatically be deemed approved starting from the end date of this period, without an of official declaration of approval on the part of the Client. The Client can prevent this automatic approval by notifying CMS in time and in writing of any errors contradicting the approval of the services. If the Client uses individual programs in live operations within the four weeks period after delivery, the service is deemed approved in any case. Errors, if any, i.e. deviations from the performance specification agreed in writing, are to be notified to CMS immediately in writing and with a detailed description by the Client in order to ensure the rectification of the error. In case of any major errors, which have been reported in writing, i.e. errors due to which commencement or continuation of live operation is not possible, a new approval becomes necessary after the repair of the errors. The Client may not refuse the approval of services (particularly software) due to minor errors.
(5.) When ordering products and services, in particular Software Products and Subscriptions, the Client confirms their awareness of the ordered programs' scope of performance by virtue of their order.
(6.) Should it become apparent, during the realization of the order, that the realization according to the performance specification is actually or legally impossible, CMS will notify the Client immediately. Should the Client fail to change the performance specification accordingly or fail to establish preconditions for the realization of the order, CMS may decline the realization. Should the impossibility of realization be the result of neglect or subsequent changes to the performance specification by the Client, CMS has the right to withdraw from the Agreement. The Client must compensate CMS for any costs and expenses incurred for this operation up to that date, as well as any dismantling costs.
(7.) The shipment of data carriers, documentation and performance specifications shall be at the expense and risk of the Client. Additional training and elucidation requested by the Client will be billed separately.
(1.) CMS is entitled to immediately charge for services provided. This also applies to partial deliveries or the realization in stages of orders that include several units or services. Unless otherwise agreed in writing, all CMS invoices are payable within 10 days of the invoice date.
(2.) Compensation for services (especially work time), reimbursement of travel and accommodation costs and other expenses, as well as the payment of daily and absence allowance, unless otherwise agreed in writing, is based on the price list of the CMS, which is attached at the end of these terms and conditions is. Travel times count as working hours. Changes to prices can be made in accordance with § 5 paragraph 2 of these terms and conditions.
(3.) Compliance with the agreed payment schedule is an essential condition for the provision of services by CMS. Compliance with payment dates is measured by the actual receipt of payment at CMS. Failure to comply with agreed payment dates entitles CMS to immediately stop providing the service and to withdraw from the contract. All associated costs are to be borne by the customer and the customer has to compensate CMS for the damage incurred, in particular lost profit. In addition, the statutory provisions apply and during the delay the outstanding amounts are subject to default interest at the statutory rate. The assertion of further damage and rights in the event of default remains unaffected.
(4.) Balancing outstanding payments against counterclaims of the customer or withholding payments due to such claims is only permitted if the counterclaims are undisputed or legally binding or arise from the same order under which the delivery was made.
(5.) If a minimum term is agreed upon then the respective contract will automatically be renewed at the end of its duration for another term equal to the original contract period, unless it has been properly cancelled beforehand. The general cancellation period is three months in advance of maturity.
(1.) CMS reserves the right to amend or discontinue running services and/or products without prior notice at any time, if there has not been agreed in writing a running time or specific deadline with the Client, and if the Client has not made any payment yet for the period after the change or discontinuation.
(2.) CMS reserves the right to adjust the prices for all services in the future. From this point on, any CMS service will be provided on the basis of the current prices of CMS. If you are in an ongoing contractual relationship with CMS and the prices for ongoing services in this contractual relationship are to be changed, CMS will notify you in advance of the change in prices. The notification can also be sent to the email address you provided. The changed prices will take effect six (6) weeks after this notification, unless you object to the change in due time. In this case, CMS reserves the right to terminate the current contractual relationship with you properly at the next possible time. The continued use of the services of CMS after this period of six (6) weeks without objection, or the acceptance of the changed prices for another order, represents an agreement to the changed prices for all contractual relationships with CMS. You can download the current version of the View the price list at any time at the following Internet address: http: //www.cms-it/agb/
(1.) All offers are subject to change. Delivery occurs only as long as items are in stock. All delivery and service dates specified by CMS are non-binding delivery and service dates, unless a delivery or service date is expressly agreed in writing as binding. If the customer requests changes or additions to the order after the order has been placed, or if the customer does not fulfill his obligations or fails to do so in good time, the delivery or service date will be postponed for a reasonable period of time.
(2.) CMS is not liable for the impossibility or delays of the delivery or service, insofar as these are due to force majeure or other unforeseeable events at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of workforce, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the lack of delivery, incorrect or late delivery by suppliers), which CMS is not responsible for. If such events make delivery or service significantly more difficult or impossible for CMS and the hindrance is not only temporary, CMS is entitled to withdraw from the contract. In the event of temporary obstacles, delivery or service deadlines are extended or delivery or service dates are postponed by the period of the disability plus a reasonable start-up period. If the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract in writing if has given CMS a reasonable grace period after the original delivery or service date – which should normally be at least six weeks – and CMS has failed to deliver within the grace period.
(3.) The cost of transport and delivery as well as any transport insurance are to be borne by the customer, with the choice of shipping route and shipping method being at the discretion of CMS. Deliveries are only insured against theft, breakage, transport, fire and water damage or other insurable risks at the customer's express request and at his expense.
(4.) The risk is passed to the customer at the latest when the goods or service have been handed over to the carrier or any other third party designated to carry out the shipment. This also applies if partial deliveries are made or CMS has undertaken other services (e.g. shipping or installation). If dispatch or delivery is delayed due to a circumstance the cause of which lies with the customer, the risk passes to the customer from the day on which the delivery item is ready for dispatch and CMS has notified the customer of this.
(5.) The customer is obliged to examine the goods immediately upon arrival and to notify CMS immediately of any visible transport damage and any damage to the packaging. Same applies to hidden damages. If CMS loses its claims against the insurance company or the sub-supplier due to the failure to fulfill this obligation, the customer shall be liable for all costs and damage resulting from this breach of duty.
(6.) If CMS is in arrears with a delivery of goods or services or if CMS - for whatever reason – becomes entirely unable to provide the goods or services, liability is limited to the provisions set in §9 of this agreement.
(1.) The delivered goods remain property of CMS until full payment of all current and future receivables to CMS without reservation.
(2.) The customer is obliged to properly insure all items (i.e. theft, fire, water and low-voltage insurance) which are still subject to reservation of ownership by CMS and to provide evidence of such insurance to CMS on request. In the event of damage, the customer's insurance claim shall be vested to CMS.
(3.) Before the outstanding receivables have been paid in full, the customer is not authorized to use or claim any items that are still subject to reservation of ownership by CMS. If the customer should file for insolvency or is subject of an attachment procedure, the customer must immediately inform CMS in writing and he must immediately inform third parties of the reservation of ownership by CMS in a suitable form. If the third party is unable to reimburse CMS for the judicial or extrajudicial costs, the customer is fully liable and obliged to reimburse CMS for all related costs and expenses. In the event that the customer nevertheless sells the goods for which CMS has reserved ownership and CMS has approved of the transaction, the customer will transfer all resulting claims against the buyer to CMS upon the conclusion of the contract – should CMS merely co-own the goods subject to reserved ownership, the claim will be transferred in proportion to the co-ownership share . The customer also enters other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or tort claims in the event of loss or destruction, from the time they arise to CMS.
(4.) The customer is obliged to provide CMS with all the information necessary to assert these claims or rights and to provide the necessary cooperation.
(1.) The statutory provisions apply to the customer's rights in the case of material and legal defects, unless otherwise specified below. CMS guarantees that the services rendered, in particular the functional scope of the hardware, software products or subscriptions supplied, essentially correspond to the written service description of the original order or another agreement on the quality of the service (in particular a product to be delivered). In case both parties have not agreed on the specific condition of goods and services, it is to be judged according to the legal regulation whether there is a defect or not. CMS assumes no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the customer did not indicate to CMS that they were decisive for the purchase.
(2.) CMS does not provide any warranty for Products which are labelled or declared (a.) “pre-production”, (b.) “demo”, (c.) „prototype“, (d.) „sample“, (e.) „alpha“, (f.) „beta“ or (g.) „free“ or any other label that refers to limited usability. Products with limited usability do not yet have a full set of features and CMS only provides them to the customer for test purposes; These are therefore not to be used by the customer in productive operation, but only to be tested in a closed test environment without influencing productive operation.
(3.) The customer is obliged to immediately install the latest version of software products made available by CMS, if requested to do so by CMS. Updates, upgrades and downgrades by a newer version of software products may change the character or scope of the original software product; this does not give rise to a warranty claim, unless the customer has been asked to install a new version of the software product and this new version affects or loses a property or functionality of the software product which the customer has been assured by CMS. Increased effort by the customer when commissioning or operating the latest version of software products (such as training time, training effort, etc.) does not constitute a defect.
(4.) The rights of the customer in the event of material and legal defects require that he has complied with his statutory inspection and notification obligations (§§377, 381 HGB). If there is a defect in the delivery, the inspection or at any later point in time, the customer must immediately notify CMS in writing. If the customer fails to properly inspect and / or report defects, CMS's liability for the defect that is not reported, or not reported in time or incorrectly, is excluded in accordance with the statutory provisions.
(5.) If a defect exists, CMS can first attempt to fix the defect through a supplementary performance. A supplementary performance can be provided at discretion of CMS by (a.) replacing the defective service (replacement delivery) or (b.) eliminating the defect (rectification). If the defect does not affect the item’s functionality or only does so insignificantly, CMS is entitled, with the exclusion of further defect rights, to remedy the defect by delivering a new version or an update as part of its version, update and upgrade planning. The right of CMS to refuse supplementary performance under the legal requirements remains unaffected.
(6.) CMS may choose to provide the supplementary performance depending whether the customer pays any outstanding receivables. However, the buyer is entitled to retain a reasonable part of the price in relation to the defect.
(7.) The customer must provide CMS the time and opportunity required for the subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to CMS in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if CMS was not originally obliged to install it.
(8.) CMS bears or reimburses the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, as well as any expansion and installation costs, in accordance with the statutory provisions, if there is actually a defect. Otherwise, CMS can demand reimbursement from the customer of the costs arising from the unjustified request to remedy the defect (in particular inspection and transport costs), unless the customer was not aware of the deficiency.
(9.) If the supplementary performance has failed or a reasonable period of time to be set by the customer for the supplementary performance has expired unsuccessfully or can be dispensed with in accordance with the statutory provisions, the customer can withdraw from the contract or reduce the price. In a minor defect, however, there is no right of withdrawal.
(10.) The services provided by CMS (especially software products) may be based on technologies and components from other manufacturers. CMS cannot guarantee the fault tolerance and availability of these technologies and components, and CMS is also not liable for malfunctions and failures, unless otherwise required by statutory provisions. If the technologies or components of the other manufacturer are defective and for this reason the customer's claims for defects against CMS exist under the other conditions of these General Terms and Conditions, the customer's claims for defects are initially limited to the assignment of CMS's claims for defects against the other manufacturer. This does not apply if the defect is due to improper handling of the technologies or components of the other manufacturer for which CMS is responsible. If the customer cannot enforce his claims for defects against the other manufacturer out of court, CMS's subsidiary liability for claims for defects remains unaffected.
(11.) If the customer extends or modifies (himself or through a third party) the services provided by CMS, in particular hardware, software products or subscriptions, without express prior consent, any warranty by CMS is void, unless the customer proves that the extension or modification for the Lack is not the cause; in this case, any warranty by CMS is void if the extension or modification makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer has to bear the additional costs of remedying the defect caused by the extension or modification. CMS is also not responsible for defects that can be attributed to improper operation, operating conditions or the use of unsuitable equipment by the customer.
(12.) Insofar as the object of the order is to change or supplement services or software products already delivered, the warranty relates to the change or supplement. This does not revive the guarantee for the original performance.
(13.) Insofar as CMS provides technical information or acts in an advisory capacity and this information or advice does not form part of the scope of services owed by CMS, this is done free of charge and to the exclusion of any guarantee.
(14.) Claims by the customer for damages or reimbursement of futile expenses, even in the case of defects, only exist in accordance with §8 and are otherwise excluded.
(1.) CMS is only liable for damages insofar as intent or gross negligence can be proven, within the framework of statutory regulations. Liability is excluded in case of slight negligence, insofar as no contractual obligation, the fulfilment of which determines the functioning of the contract in the first place, is violated; in this case, liability is limited to the compensation of the foreseeable and typical damage and the CMS is liable to a maximum of the payments made or to be made by the client to CMS in the context of the respective contract. The liability for damages from the injury of life, limb or health as part of an assured guarantee or according to Product Liability Act (“Produkthaftungsgesetz”) remains untouched by the aforementioned limitations of liability and disclaimers. The above exclusions and limitations of liability apply to the same extent for the personal liability of legal representatives, employees and other vicarious agents of CMS.
(2.) The client is responsible for regularly backing up his data with the care of a prudent businessman. In particular, he will perform a complete data backup of all system and application data immediately before each installation and / or other intervention by the contractor or third parties commissioned by the latter. The data backups are to be kept in such a way that the backed up data can be restored at any time. If there is a fundamental liability of CMS for the loss of data of the client, this is limited to the amount that would have been incurred to restore it if the data had been properly and regularly backed up.
(1.) Notwithstanding the statutory provisions, the general limitation period for claims arising from material and legal defects is twelve months from date of delivery of the defective item or, if customer acceptance is required, from the date of acceptance.
(2.) The foregoing limitation periods also apply to contractual and non-contractual claims for damages of the customer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in an individual case a shorter period.
(3.) The above limitation periods do not apply to claims for damages by the customer from injury to life, limb or health or from intentional or grossly negligent breaches of duty by CMS or its vicarious agents, from the Product Liability Act (“Produkthaftungsgesetz”), if CMS has maliciously concealed a defect or a guarantee for the quality took over the goods, as well as in the cases of § 438 Paragraph 1 No. 2, § 445b and § 634a Paragraph 1 No. 2 BGB; rather, the limitation period in these cases is based on the statutory provisions.
(1.) CMS and their suppliers reserve the right of ownership and copyright for all products and their components, including, but not limited to, images, photos, animations, video, audio, music, texts and applets and any other included contents or services (hereinafter “The Proprietary Information”) unless otherwise agreed in writing or resulting from these terms and conditions. CMS may use or develop software libraries or general components. CMS may reuse such Proprietary Information in the future and will not grant any exclusive rights over such assets. Proprietary Information usually reside in a subdirectory called “lib”, “res”, “inc”, “external” or “assets” inside the project’s source code repository.
(2.) In case of an individual development project, CMS will grant a non-exclusive, unlimited, non-transferable simple rights of use for all Proprietary Information connected with this project. The extent of this license and the Proprietary Information included in this license is defined by the original project specification created by CMS. The right of use is basically limited to the respective contract purpose.
(3.) CMS may use Proprietary Information developed by third parties, such as icons, software libraries or interfaces. CMS can make no guarantees regarding any licensing conditions of such components and must not violate the component’s licensing agreement.
The customer acknowledges that hardware as well as software may be subject to export and import restrictions. In particular, approval requirements may exist or the use of software or associated technologies abroad may be subject to restrictions. The customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfillment of the contract by CMS is subject to the condition that there are no obstacles due to national and international regulations of export and import law as well as no other legal regulations.
The customer is obliged to CMS to keep all business and trade secrets of CMS, which become known to him within the scope of a contractual relationship with CMS, indefinitely secret and not to pass them on to third parties or to exploit them in any way; the customer will only grant access to the business and company secrets of CMS to those employees who need to know them for the respective execution of the contract with CMS. Documents, drawings and other information that the customer receives due to the business relationship with CMS may only be used within the scope of the respective contractual purpose.
(1.) The customer is prohibited from actively soliciting CMS employees or assisting third parties in solicitation activities in a period from the first assignment of a CMS service to the end of two years after CMS has last performed a service for the customer. This prohibition on solicitation also includes other offers and agreements, on the basis of which the employee's workforce should no longer benefit CMS, but in whole or in part to the customer or third parties. The non-solicitation also protects a third party affiliate of CMS in terms of their employees and also obliges affiliates of the customer; In this respect, the customer is responsible for the actions of the company associated with him.
(2.) For each case of violation of §14 paragraph 1, the customer has to pay a contractual penalty in the amount of three gross monthly salaries per attempt at poaching, whereby the average gross monthly salary of the employee in the last 12 full calendar months must be used. Every single attempt to poach each individual employee is considered an independent violation of the solicitation ban. In the event of a successful attempt to poach, the contractual penalty is twelve gross monthly salaries. The assertion of further damage remains unaffected.
(3.) In the event of an infringement of the prohibition of solicitation under §14 paragraph 1, CMS is also entitled to terminate or withdraw from any contractual relationship with the customer with immediate effect for an important reason.
Data that are stored in electronic registers or otherwise in electronic form at the company are considered to be admissible evidence for the proof of data transfers, contracts and payments made between the parties.
(1.) CMS reserves any rights not expressly granted herein.
(2.) For Agreements with traders, the place of performance and court of jurisdiction for both parties is the District Court of Munich II, Germany. The Laws of the Federal Republic of Germany shall apply to all legal relationships between CMS and the Client.
(3.) In case of doubt, this Agreement remains binding with respect to its remaining parts, even if individual provisions are legally ineffective or unenforceable. Invalid or unenforceable provisions are to be replaced by provisions that correspond as far as possible to the commercial purpose of the Agreement.
(4.) The Client notifies CMS without delay of any change of the Client's name or designation under which they are administrated in the provider's business documents, as well as any change of address.
(5.) Any assignment of rights or transfer of obligations arising from this Agreement requires CMS's written consent.
(6.) This Agreement is subject to the German law, in particular the UrhG (Copyright Act), BGB (Civil Code) and HGB (Commercial Code). The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods shall not apply.
(7.) Alterations and additions to the Agreement between CMS and the Client must be made in writing in order to be effective. This also applies to the written form requirement. Oral additional agreements are deemed invalid.
The service is billed based on the service actually performed.
The following hourly rates apply:
Travel times are taken into account at 50%, there are no additional costs such as expenses, overnight stays and km flat rates.