Terms and conditions

1. Scope, Written Form, Contract Conclusion

1.1 These general terms and conditions apply to all contracts of kothes GmbH and affiliated companies (participation of at least 25%), hereinafter referred to as "we". We exclusively conclude contracts under these terms and conditions, even if we do not explicitly refer to them, e.g. in ongoing business relations. Deviating conditions on the part of the customer are not valid.

1.2 Deviations from these terms and conditions and alterations/supplements to contracts must be explicitly agreed on in advance and in writing; e-mail exchange is also allowed as written form.

1.3 All offers are subject to confirmation; the customer order is the legal offer to conclude the contract. If we do not confirm the order, our provision of services is our acceptance of the order.

1.4 The customer is only permitted to transfer claims with our written consent in advance.

2. Prices, Payment

2.1. All price quotations are net prices; estimated costs can be exceeded by up to 10%. If costs that we cannot influence, e.g. personnel costs bound by collective agreements, should increase by over 10% after the contract has been concluded, we can increase the prices for services that are to be provided more than four months after the contract is concluded with proof of the cost increase.

2.2. Remuneration takes place in line with the specifications in our offer. Working days are 8 hours plus break times.

2.3. Remuneration is subject to any shipping costs that may be incurred for the shipment of devices or larger packages.

2.4. Payment must be made without deductions within 14 days of the date on the invoice. Default interest will be charged if the agreed term of payment is not complied with. If a fixed price has been agreed, remuneration is paid according to the following scale: 40% after order confirmation, 40% after service provision, 20% after the correction cycle is completed or the agreed acceptance of services rendered.

2.5 If a customer does not make the agreed payments as part of a business agreement, we can declare all outstanding receivables due immediately and demand advance payment for further orders; this also applies if the customer’s credit rating is downgraded by notable rating agencies or a credit reform. In the cases specified above, we have the right to withhold services until payment is received.

2.6 The customer is only entitled to the right to set-off/withhold within the framework of the respective contract and only insofar as the customer’s claims have been acknowledged by us or determined by legal ruling.

3. Delivery Dates, Provision of Services

3.1 Delivery dates specified only then apply as binding if we have expressly confirmed them as fixed dates.

3.2 Adherence to delivery dates is subject to the customer having provided all advance services required for our service provision. These are: Provision of all the necessary documentation and information including design data and product samples where required. Agreed delivery periods are extended accordingly until the advance services are provided. We are within our rights to set deadlines for the provision of advance services; if these dates are reached without provision, we can withdraw from the contract and demand reimbursement of costs that have already been incurred.

3.3 The customer is obliged to participate in the service provision. This includes: Participation in research interviews and structure workshops as well as allowing research opportunities at any time and the performance of corrections (see item 5). For translation services in particular, the customer is obliged to provide the text to be translated as a file, any terminology, translation memory entries or reference material (to compare/extract terminology – where commissioned to do so); we are not obliged to check this information.

3.4 Any technical changes that arise after the editorial deadline justify the billing of additional costs; as long as no other agreement has been made, the completion of research, indicated to the customer with a notice period of five working days is deemed as the editorial deadline.

3.5 As long as not arranged otherwise, the risk is transferred to the customer when our service is prepared for dispatch or upon sending from our e-mail system.

3.6 We are within our rights to make partial deliveries as long as this does not constitute an unreasonable disadvantage for the customer.

4. Quality of Services

4.1 Our offer alone is decisive for the quality of the service. Information in presentations or online are always non-binding examples.

4.2 Documents such as operating instructions are created with the components described in the offer and correspond to the agreed structure (usually the result of a structure workshop). Software marketed by us is supplied with the components specified in the order confirmation.

4.3 Suitability of documents for the USA, Canada and Australia is generally not owed.  

4.4. The relevant standards and directives are also representative for the quality. The customer must inform us of technical standards that apply to the customer’s industry and in the product’s distribution areas outside of Germany, Austria and Switzerland. If we carry out standards research including a standards list and transmit this to the customer for release, only the released standards list is representative.

4.5 Translations are based on the meaning in line with applicable standards, directives and translation conventions. Customisation to the market conditions (localisation) is not owed.

4.6 It can only be guaranteed that the translations will be ready to print in the event of the contractor expressly communicating the requirements to the translator in writing and submitting the proofs for correction (including content corrections) and if there has been an opportunity and a suitable amount of time for checks. If the points mentioned above are not adhered to, warranty and damage claims are excluded.

5. Correction Cycle for Documents, including Translations

5.1. Before finalising the documents, we send the customer a draft of the document in PDF for the correction cycle; there is only one correction cycle in each case. The customer must fully check the technical accuracy and notify us of any deviations immediately; if we are not notified of errors within 20 working days after transmitting the draft, the document is regarded as approved; the document is also regarded as approved with respect to any inaccuracies not indicated in the draft.

5.2 Translations shall be corrected by native speakers who have access to a copy of the source document. Only errors in content or violations of translation rules are considered as errors to be corrected, and stylistic aspects do not fall under this category. In principle, stylistic changes or additions to the content are to be remunerated as additional services.

5.3 Texts that are intended for advertising or public relations purposes shall be checked by the customer with regard to their suitability for the intended purpose. A “translation” can only ever be a “qualified draft” for a text to be created for a purpose such as this. The decision of whether a translation already complies with the requirements falls to the customer. Any changes to the “translated text” desired by the customer are not “improvements” at the expense of kothes but an “extension to the order” at the expense of the customer.

5.4 As far as spelling, grammar and language use are concerned, translations are carried out in accordance with the generally accepted rules of the target language.

kothes translates specialist terminology and vocabulary with the conventional, lexicographical and standard meaning. Depending on the meaning of the translation text, translations are either literal or suited to the mentality.

Any terminology or style requests by the customer that deviate from generally accepted rules must be expressly agreed when placing the order. The customer shall provide corresponding instructions (sample texts, parallel texts, glossaries and similar), and the customer shall provide specialist consultation if requested by kothes.

6. Software

6.1 In accordance with the manufacturer’s licence as saved under smart space , and in accordance with the following regulations, we grant the customer a non-exclusive, neither transferable nor assignable and non-sublicensable licence for the use of software, based on a specific release version in each case. The customer must not exceed the specified number of users authorised for access at any one time specified in the offer.

6.2 The customer is obliged at all times to document exactly how many copies of the software exist, where these are and the date on which they where created; the customer must also take all required measures to prevent unauthorised copying.

6.3 The customer is not permitted to modify the software unless to rectify a fault and we or the manufacturer are in default or refuse this rectification. Back translation (decompilation or reverse engineering) or other interference with the program code is not permitted by the customer. The customer is not permitted to reproduce, modify, adapt, combine with other programs or translate the software outside of the framework of permissible use.

6.4 The customer is not permitted to pass the software and documentation on to third-parties without written consent from us in advance.

6.5 Any correction of faults is carried out by transmitting a maintenance release, as long as a replacement delivery or the delivery of a maintenance release is not unacceptable to the customer. We are not obliged to rectify faults and do not have to take responsibility for these if the customer does not use the software as per the contract or alters/supplements the software, unless the customer proves that the relevant fault cannot be attributed to the counter-contractual use or the alteration/supplement.

7. Development and IT Projects

7.1 The customer shall support kothes in the provision of the services

• by providing their own personnel as Project Manager (or product owner for projects realised according to a Scrum-based methodology) and sufficient resources per project. These employees have sound process and IT knowledge or are able to acquire this knowledge during the project;
• by participating in regular Sprint Reviews for Scrum projects;
• by carefully testing new IT processes after we have technically tested them and handed them over to the customer;
• by coordinating subcontractors or other companies of the customer or the customer's holding not commissioned by the licensor;
• by the timely provision of infrastructure (especially hardware and software requirements) for the project and our employees.

7.2 The late performance of obligations to cooperate may mean the delay of a project.

7.3 The acceptance criteria shall be determined by kothes during the course of the project, in consultation with the client, or shall be derived from the offer or the project description.

• The acceptance of the defined services by the customer takes place after completion of the functional test, but no later than 30 calendar days after the operational readiness as declared by kothes.
• The functional test begins immediately after installation. Partial services/deliveries can also be accepted separately (e.g. as part of a Sprint Review).
• With the acceptance of the last partial delivery, the entire system shall be deemed to have been accepted.
• If the functional test cannot be carried out on the scheduled date for reasons for which kothes is not responsible, then the entire service will be deemed accepted no later than 30 calendar days after this date.
• Any use of the service by the customer is equivalent to an acceptance.
• Seminar and consulting services provided do not require acceptance.
• Acceptance by the customer also constitutes the acceptance of the services as essentially rendered in accordance with the contract.
• The customer shall not be entitled to refuse acceptance due to minor errors.
• Errors shall be documented during the acceptance process in the acceptance document, to be signed by both parties, and shall be remedied by kothes within the framework of the warranty obligation.
• The customer may only refuse acceptance if defects of Error Class 3 are present.

7.4 The following Error Classes apply:

• Error Class 3 – Acceptance-Preventing Defect (Significant)
  The problem is so serious that the entire system cannot be used (completely) by the customer over a continuous period of one working day.
  In the event of such a problem, kothes' contractual obligations to perform shall not be fulfilled to the extent that the customer may refuse acceptance.
• Error Class 2 – Not an Acceptance-Preventing Error (Significant)
  The error that occurs does not prevent the customer from using the overall system in a financially beneficial way, but it does hinder the use of the overall system or the system components that are important for the beneficial use of the overall system over a longer period of time.
  In the event of such an error, the contractual services of kothes shall be deemed to have been fulfilled so that acceptance cannot be refused, but the defect shall nevertheless be remedied by kothes within the scope of the warranty.
• Error Class 1 – Not an Acceptance-Preventing Defect (Insignificant)
  Such a defect exists if the development deviates from the functionalities defined in the detailed specification, but the defect does not lead to a permanent use of the overall system that hinders meaningful beneficial use.
  Such a defect is remedied by kothes within the usual warranty, without any time-related priorities.

8. Granting Rights of Use

8.1 We grant the customer the right to reproduce, distribute and make publicly available the copyrightable illustrations and texts for the purpose of product-related information with respect to the product described in the offer.

8.2 The right of use as per item 8.1 refers solely to documents released by us and is subject to the condition precedent that the agreed remuneration is paid in full.

8.3 The customer guarantees and confirms that the transfer, editing and translation of the source material (including fonts) and the publication, marketing, selling and any other use of the translation to be delivered does not represent any violation of patent rights, copyright, trademark rights or other third party rights and that the customer has unrestricted authorisation to edit the text and have it translated. The customer exempts kothes from all claims concerning this matter.

If, for any reason, claims are made on kothes for violating an existing copyright on work provided, the customer is obliged to exempt Kothes! from this liability in full.

9. Reservation of Ownership

We retain the ownership of objects that we deliver until all the claims we have against our customers from the business relationship, now or in the future, are complied with.

10. Warranty

10.1. We guarantee the provision of our services in accordance with the quality as per item 4. Stylistic deviations in translations do not entitle the customer to assert claims for defects.

10.2 In correction cycles, the customer is obliged to inform us of patent faults immediately. If this notification is not carried out or is carried out too late, the customer has thereby forfeited their legal warranty rights. Any legal warranty rights are limited to the service affected by the fault. If there are multiple faults in a service, these can only be considered as a whole when in comes to enforcing rights if they are functionally related to one another.

10.3 In the event of justified complaints of defects, we will provide improvement within a suitable time frame of our choice or create a completely new version of the same document (right to perform improvement). We have the right to perform improvement three times for the same fault. If we fail to provide improvement, or in the legally specified cases where we are not entitled to the right to perform improvement, the customer has the right to withdraw from the contract as long as the faults mean that the service is not suitable for the purpose given in the contract. The right to reduce the purchase price is excluded, unless no further appeal would be available to the customer in the event of complaints of defects.

10.4 Warranty claims are subject to a limitation period of 12 months after the service is provided; at the latest 13 months after the draft is handed over.

11. Liability

11.1 With the exception of bodily injury, we limit the liability for damages caused by our services depending on the reason and amount to the services of our liability insurance up to EUR 2 million, unless gross negligence or intent exist on our part.

11.2 If a faulty service should result in a product recall, there is only a duty to compensate if we are informed of the recall measure and if it is imperative according to the German Product Safety Law.

11.3 The client vouches for the accuracy of the information provided. The client is also liable for the material not being tainted by third party rights and exempts us from any claims by third parties.  

11.4 In the event of delay, we are liable for a maximum of 0.5% of the order value per week; however a total of maximum 5%. Claims for compensation are also restricted to the compensation of proven additional costs (reacquisition based on three settlement offers). Claims due to delay are restricted to the respective part of the service that is delayed. The customer must assert any claims due to delay with the final payment at latest; otherwise they lapse.  

11.5 In the event of breaches of duty that are not for essential contractual obligations, we are not liable in the event of slight negligence, except in the case of bodily injury.

11.6 If the applicable law permits the exclusion or restriction of our liability to a larger extent than described here, this restriction or exclusion is deemed to be agreed.

12. Place of Fulfilment, Court of Jurisdiction

The place of fulfilment for delivery is the plant/warehouse determined by us. The place of fulfilment for payments is Kempen. The court of jurisdiction is Kempen or the customer’s official address if selected by us.

13. Choice of Law

The law of the Federal Republic of Germany applies, including the Convention on the Sale of International Goods (CISG). This excludes the right to assess the inclusion and validity of these business conditions, particularly regulations that restrict liability; as far as these are concerned, the law at the customer’s official address applies as selected.