General terms and conditions
As of December 2023
IANUS Simulation GmbH
Sebrathweg 5
D-44149 Dortmund
www.ianus-simulation.de
Phone: +49 (0) 231 58692470
Fax: +49 (0) 231 58692475
Email: info@ianus-simulation.de
Managing Director:
Prof. Dr.-Ing. Frank Platte,
Dr.-Ing. Tobias Herken
AG Dortmund HRB 19888
Ust-IdNr.: DE 251718971
A. Applicability of IANUS
B. Purchasing and Order Conditions C. General Performance Conditions D. Special Terms and Conditions for Consulting Services
A. Applicability of IANUS Terms and Conditions
A.0
These General Terms and Conditions govern all business relationships between IANUS and its contractual partners, even if specific transactions no longer explicitly reference these terms and conditions, provided that the contracting party is an entrepreneur (§ 14 BGB), a legal entity under public law, or a public-law special fund. In these terms and conditions, contractual partners refer to those parties engaging in transactions with IANUS on the provider and/or customer side.
A.1
These General Terms and Conditions are always applicable and exclusive. Any deviating, conflicting, or supplementary general terms and conditions of the contractual partner shall only become a part of the agreement if IANUS has expressly agreed to their validity in writing. In individual cases, agreements made on an individual basis with the contractual partner (including subsidiary agreements, supplements, and amendments) shall take precedence over these General Terms and Conditions in any event. The content of such agreements is, subject to evidence to the contrary, determined by a written contract or IANUS’s written confirmation.
A.2
References to the applicability of legal provisions are for clarification purposes only. Therefore, legal provisions apply even without such clarification, to the extent that they are not directly modified or expressly excluded in these General Terms and Conditions.
B. Purchase and Order Conditions
B.0
The definitive terms for orders and purchases issued by IANUS are exclusively the purchase and order conditions of IANUS.
B.1
All orders placed by IANUS and purchases made – to the extent these conditions do not address the matter – are exclusively processed based on statutory regulations. The terms and conditions of the contractual partner of IANUS do not apply.
B.2
The contractual partner of IANUS is obligated, within the legal scope and for the statutory duration, to provide warranty and compensation. In these terms and conditions, warranty means claims for defective performance due to the delivery of a faulty item or the provision of a defective service.
B.3
For both contractual parties, the place of performance and payment is the headquarters of IANUS.
B.4
For all disputes arising from or in connection with the contractual relationship between the contractual partner and IANUS, the place of jurisdiction is Dortmund. In this case, IANUS is entitled to sue the contractual partner at its respective place of business.
B.5
The law of the Federal Republic of Germany applies, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
C. General Performance Conditions
C.0. Object of the Contract
IANUS operates in various areas, including but not limited to services in the field of flow simulation, geometry and process optimizations, as well as the development and provision of individual or standard software solutions, particularly through Software as a Service (SaaS).
C.1. Order Confirmation / Scope of Services
C.1.01
The following provisions apply when IANUS provides services.
C.1.02
For the content of each contract, in the absence of a mutually signed contract, the order confirmation issued by IANUS in written form, possibly in conjunction with the service description prepared by IANUS, is authoritative.
C.1.03
Oral agreements made with non-authorized employees in connection with contract conclusions also require written confirmation from IANUS for their effectiveness.
C.1.04
Upon the conclusion of a contract through mutual signature, all preceding cost models, negotiation protocols, statements, subsidiary agreements, and preliminary contracts lose their validity unless the contract explicitly refers to them.
C.1.05
Clause C.1.04 applies accordingly when a contract is confirmed by an order confirmation from IANUS.
C.1.06
The customer must provide IANUS with all information and documents necessary or useful for the execution of the order. Additionally, the customer must ensure the availability of the necessary IT prerequisites. At the beginning of the contract, the customer will designate suitable employees responsible for fulfilling these information obligations. If a service description is created and submitted to the customer for review and approval, this service description definitively defines the scope of services for both parties. If the processes to be carried out by IANUS involve customer-specific legal and/or operational regulations, the customer is responsible for verifying the accuracy of the proposed processes.
C.1.07
Physical transfer of software to the customer does not occur unless expressly agreed otherwise between the parties.
C.1.08
Installation and configuration services for software are not part of the contract unless expressly agreed between the parties. Consultation and organizational services are also owed and provided by IANUS only based on a separate contract and for separate compensation. Even in the case of consulting services from IANUS, the customer is required to cooperate appropriately, including adhering to agreed-upon schedules, providing access to necessary infrastructure, and the like.
C.2. Permanent Rights / Scope of Rights / Compensation / Protection of Software
C.2.01
If, within the scope of the contract, IANUS provides the customer with information (excluding work results) containing protectable inventions, IANUS reserves all rights (especially the right to file patent, utility model, and design applications) regarding inventions originated solely by IANUS. The customer shall not derive any rights, especially no pre-existing rights, from the fact that they gain knowledge of protectable inventions through the information provided by IANUS, for which IANUS may file protective rights.
C.2.02
IANUS grants the customer a non-exclusive, temporally limited, non-transferable, and non-sub-licensable right to use the standard software (hereinafter “standard software”)and individual customizations as per section C.3.01 (hereinafter collectively referred to as“software”)within the scope granted by these general terms and conditions and the order documents of IANUS In case of discrepancies, the individual order documents take precedence over the provisions in these general terms and conditions. Unless otherwise agreed in the contract, the customer acquires a single-use right. Multi-use rights must be separately contractually agreed upon as such. Multi-use, in this context, refers to the simultaneous installation and/or use of the software on multiple workstations by the customer. Multi-use also occurs when the software is installed on a single storage unit but simultaneous access to the software can be made from multiple workstations. Whether and to what extent the customer is allowed to use the software with different clients is determined by the respective contract. The customer is not allowed to sell, lend, rent, sublicense, publicly reproduce, or make the software publicly accessible. Any use of the software by the customer contrary to these terms constitutes a copyright infringement.
C.2.03
The customer is not entitled, except in the case of explicit written consent from IANUS, to make copies of the software and the provided documentation materials. The right to create a backup copy of the software (§ 69d para. 2 Copyright Act) remains unaffected.
C.2.04
The customer may not, subject to section C.2.05, disclose the software, documentation, or copies thereof to third parties without the express written consent of IANUS.
C.2.05
If the software has been provided to the customer for temporary use, especially if it has been rented, the customer must not, under any circumstances, disclose the software and copies thereof to third parties. If the customer has rented the software, they are allowed to use the software exclusively at the location of their business and under their business name. Any other use entitles IANUS to terminate the rental contract without notice. The customer grants IANUS the right to verify compliance with this usage regulation in their premises during business hours.
C.2.06
The customer acquires the right to use the version of the standard software that is current at the time of contract conclusion or initial installation.
C.2.07
Decompilation of the software is generally not allowed. If, for the purpose of interoperability according to §69e Copyright Act, the customer requires interface information, IANUS will provide the information to the customer upon request. If IANUS does not comply with this request within a reasonable period, the customer is allowed to decompile the necessary parts of the software for the purpose of interface analysis.
C.2.08
A violation of the usage provisions of this section C.2 is a criminal offense according to § 106 Copyright Act and can be prosecuted ex officio by the public prosecutor’s office in cases of special public interest or upon a criminal complaint.
C.2.09
For each individual case of a violation of the above usage regulations, the customer agrees to pay a lump-sum compensation equal to 50% of the purchase price paid for the software, or in the case of a Software-as-a-Service contract (SaaS), an amount equivalent to one year’s fee for software provision. The customer is allowed to provide evidence that no damage or significantly less damage than the specified lump sum has been incurred. IANUS expressly reserves the right to claim any further, specifically proven damages.
C.2.10
The above regulation also applies in the event that the customer uses the software beyond the permitted multiple-use.
C.2.11
In cases where the corresponding software has been provided to the customer for a limited time, as agreed, IANUS is entitled to ensure, through technical measures, that the software is no longer operational after the agreed usage period expires. This does not limit the contractual usability of the software for the customer.
C.2.12
The customer is obligated to secure the software or its use against unauthorized access by suitable measures, especially by keeping any copies of the software in a secure location.
C.3. Rights to Individual Customizations
C.3.01
If expressly agreed upon in the contract or the offer, IANUS will customize parts of the standard software to meet the customer’s needs. Customizations to the standard software mean selecting, modifying, and combining the respective components of IANUS and its partners based on the customer’s defined requirements for the purpose specified by the customer (hereinafter referred to as “individual customizations“).
C.3.02
All individual customizations, as well as the data and insights, combination possibilities, codes, and software components resulting from the development of individual customizations for the customer, remain in full ownership and possession of IANUS.
C.3.03
The customer is entitled to use the individual customizations to the same extent as the standard software. IANUS grants the customer simple usage rights for the individual customizations according to section C.2.
C.4. Customer Data, Rights to Result Data
C.4.01
Full utilization of the software requires the provision of information and data by the customer in digital form in the agreed format (hereinafter “customer data“). IANUS will use the customer data solely to fulfill the services agreed upon in the offer and these general terms and conditions. For this purpose, the customer grants IANUS simple usage rights to the customer data, exclusively for the fulfillment of the agreed services, limited to the duration of the contract. The aforementioned granting of rights includes the right to process, edit, especially transfer to other formats, store, copy, and evaluate the customer data. All customer data remains the property and ownership of the customer. IANUS will not use the customer data for its own purposes, particularly not for the training of the software.
C.4.02
IANUS grants the customer exclusive usage rights to all (raw) data resulting from the software processing, as well as to all evaluations of this data in the agreed-upon form (hereinafter collectively referred to as “result data“). The customer is free to use the result data for their own purposes, particularly for filing protective rights, optimizing their own products, publishing, further research purposes, or training models.
C.5. Place of Performance / Acceptance
C.5.01
The place of performance for the services to be provided by IANUS and by the customer is the operating location of IANUS at the headquarters in Dortmund.
C.5.02
The customer is obligated to confirm in writing the provision of services by IANUS after they have been rendered..
C.5.03
If a test run is agreed upon to determine the provision of services, the customer is obliged to confirm to IANUS, after a proper and successful test run, that the service has been provided.
C.5.04
If partial acceptances are agreed upon, sections C.5.02 and C.5.03 apply accordingly to partial services.
C.5.05
The subject matter of the contract or the partial subject matter is deemed accepted in any case:
- when the customer uses it for productive work,
or
- when the customer or third parties independently make modifications to the subject matter of the contract,
or
- when, within 10 days of a justified request for confirmation of performance/partial performance confirmation, the customer does not provide such confirmation in writing or, if test runs were agreed upon, does not provide the opportunity for the corresponding program acceptance to take place.
C.6 Delivery Times and Delay in Delivery
C.6.01
Any agreed-upon delivery times are subject to the condition that the service is available at IANUS. If the service is not available (unavailability of the service), IANUS will immediately inform the customer about it and simultaneously provide the estimated new delivery time. If the service is still unavailable within the new delivery time, IANUS is entitled to withdraw entirely or partially from the contract; any consideration already provided by the customer will be promptly refunded.
C.6.02
If a delivery time is agreed upon, it is reasonably extended if the customer fails to fulfill their obligations of cooperation.
C.6.03
If changes to the order are requested by the customer after order confirmation, any agreed-upon delivery time begins only upon confirmation of the change by IANUS. The delivery time is adjusted accordingly.
C.6.04
The delivery time is reasonably extended in the event of unforeseen obstacles that IANUS despite reasonable care under the circumstances, cannot prevent, such as natural disasters, pandemics, blockades, war, terrorist attacks, strikes, lockouts, and other labor disputes, confiscation, government orders, embargo, or a total or partial failure of subcontractors for which IANUS is not responsible unless IANUS has expressly assumed the procurement risk or a delivery guarantee. In such cases, IANUS also has the right to withdraw from the contract, provided it is not merely a temporary obstacle to performance.
C.6.04
The occurrence of delivery delays by IANUS is determined by legal regulations. In any case, a reminder by the customer is required.
C.6.05
If the performance by IANUS is delayed due to circumstances attributable to the customer, the customer bears any resulting disadvantages.
C.7. Payment Terms/ Price Adjustment
C.7.01
Prices and costs are exclusive of the applicable value-added tax.
C.7.02
Cash discounts are granted only with an explicitly agreed-upon agreement in written form.
C.7.03
Unless otherwise agreed, payments are due immediately.
C.7.04
Unless expressly agreed otherwise, payments for services provided by IANUS during a month are due on the 1st of the following month. This applies even if the services provided by IANUS for the customer extend over multiple months.
C.7.05
Payments to be made to IANUS are due no later than 10 days after the invoice date. If this date is exceeded, the debtor automatically enters into default without notice.
C.7.06
In the event of the customer’s payment default, the customer owes default interest at the respective applicable statutory interest rate.
C.7.07
IANUS reserves the right to assert damages beyond what is stated in section C.7.06.
C.7.08
The place of performance for payments to be made to IANUS is the business headquarters of IANUS in Dortmund.
C.7.09
In the case of ongoing contractual relationships, such as Software-as-a-Service (SaaS) contracts, including Partner Packages and StrömungsRaum Packages, IANUS reserves the right to increase the recurring (usually monthly) compensation at the beginning of each new calendar year by up to 9% in accordance with the then-current IANUS price list.
IANUS will notify the customer of a change in compensation in writing two months in advance. If the customer does not object to the price increase within one month of the announcement in written form, the price increase is deemed approved. If the customer objects within the specified period and in the correct form, IANUS has the right to terminate the contract with effect from the beginning of the announced price increase. The notice period for IANUS in this case is two weeks to the end of the month, deviating from any other agreed-upon deadlines or contract durations.
C.7.10
The customer may only offset with undisputed or legally established claims. However, this limitation does not apply if the customer’s counterclaim for offsetting is in a reciprocal relationship to IANUS’s claim.
C.7.11
Except in cases of C.7.10, the customer has no right of retention. The rights under § 320 BGB are preserved as long as IANUS does not fulfill its own warranty obligations.
C.7.12
If, after the conclusion of the contract – if a declaration of intent by the customer is required for the conclusion of the contract, it becomes apparent after IANUS’s last declaration of intent aimed at concluding the contract – e.g., by applying for the opening of insolvency proceedings – that IANUS claim for the purchase price is jeopardized by the customer’s lack of performance, IANUS is entitled to refuse performance and, if necessary, to withdraw from the contract after setting a deadline (§ 321 BGB). In contracts for the manufacture of unique items (custom-made products), IANUS can declare withdrawal immediately; the legal regulations on the dispensability of setting a deadline remain unaffected. In this case, IANUS may demand flat-rate damages without special proof, amounting to 25% of the unpaid contract sum, with the customer reserving the right to prove that IANUS incurred no damage or significantly less damage than the flat-rate amount. IANUS is also entitled to claim compensation beyond the flat-rate amount.
C.7.13
IANUS’s hourly rates, surcharges, etc., apply for each regular waiting and working hour based on the respective statutory weekly working hours. The current fee and travel expense list of IANUS applies. Travel hours are also calculated according to the current fee and travel expense list of IANUS. IANUS charges expenses (food and accommodation within the country) for each day of travel and work. If an installation or other customer service continues after a weekend, compensation or travel costs are payable for the weekend, at IANUS’s discretion, unless expressly agreed otherwise. Holiday surcharges and expenses are also charged on local (applicable at the place of use) holidays.
C.7.14
Travel expenses are billed as follows: – Air travel: Economy class (general principle) Business class (for flights lasting >>4 hours (one way)) – Train travel: 1st class – Local transportation: Taxi and, if necessary, baggage carrier – Company-owned or IANUS employees’ vehicles: Kilometer allowance according to IANUS billing rates.
C.7.15
Travel hours and return travel expenses can and will be recorded on work certificates or time sheets only after their completion.
C.7.16
The aforementioned billing rates by IANUS are based on the current wage, salary, and working time rates. In the event of changes to the latter, IANUS reserves the right to make corresponding adjustments to the billing rates. The current billing rates will be provided to the customer upon request.
C.7.17
If the installation, maintenance, configuration, data transfer, or any other service provided by IANUS is delayed due to reasons beyond IANUS control, the customer is responsible for all resulting costs, including waiting times and additional travel expenses and expenses incurred by IANUS employees or other agents due to the delay, if the reasons for the delay are attributable to the customer.
C.8. Inspection and Complaint Obligations
C.8.01
The customer is obligated to continuously inspect the proper execution of services by IANUS. The services provided by IANUS must be promptly examined by the customer upon delivery, installation, or provision (depending on what IANUS is obligated to provide) for any defects, and any defects must be reported to IANUS promptly, but no later than in written form.
C.8.02
The inspection and complaint obligations also apply to any agreed-upon specifications, service descriptions, needs analyses, and similar information that IANUS provides to the customer in connection with services to be rendered by IANUS.
C.9 Data Backup
IANUS emphasizes that data (including programs and the like) may be lost for various reasons, and recovery is often not possible or only with disproportionate effort.
It is the customer’s responsibility to professionally and adaptably back up their entire data regularly, considering the volatility of the database. The customer meets these requirements, especially if they follow the DIN ISO 27001 IT baseline protection standard.
In the event of data loss attributable to IANUS, IANUS’s liability is limited to compensating the customer as if they had fulfilled their data backup obligations. However, the liability of IANUS under the provisions of Section C.11.02 remains unaffected.
C.10. Warranty Claims of the Customer (Guarantee)
C.10.01
The customer’s rights regarding defects in quality and title (including incorrect or insufficient delivery or defective user manuals) are governed by the respective applicable statutory provisions, unless otherwise stipulated below. In all cases, the statutory special regulations for the final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them.
C.10.02
If the customer fails to fulfill the control and complaint obligations listed in Section C.8, IANUS’s liability for the undisclosed defect is excluded.
C.10.03
Regarding the provision of software usage and the possible (explicitly to be agreed upon) provision of storage space, the warranty provisions of tenancy law (Sections 535 et seq. BGB) apply. Warranty for only insignificant impairments of the fitness for use of the service is excluded. Strict liability under Section 536a(1) BGB for defects existing at the time of contract conclusion is excluded.
C.10.04
If the warranty period is inhibited or interrupted by work performed by IANUS, such inhibition or interruption only applies to the functional unit affected by the rectification.
C.10.05
IANUS may fulfill its warranty obligation in the case of program errors or similar by offering the customer a solution that eliminates the effects of the error (workaround). If this does not significantly impair the program’s user-friendliness, further claims by the customer are excluded.
C.10.06
To carry out warranty-related rectifications and replacement deliveries, the customer must provide IANUS with the necessary time and opportunity. Only in urgent cases of operational safety endangerment and to prevent disproportionately large damages, with immediate notification to IANUS if possible beforehand, or if IANUS is in default of rectifying a defect, the customer has the right to rectify the defect themselves or through third parties and demand IANUS of the necessary costs from IANUS.
C.11. Other Liability
C.11.01
Unless otherwise stipulated in these general terms and conditions, excluding the provisions of C.11.02 below, claims for damages and reimbursement of expenses by the customer against IANUS, regardless of the legal grounds, are excluded. This applies, in particular, to claims for damages in tort (e.g., § 823 BGB). To the extent that liability is excluded or limited, this also applies to the personal liability of IANUS’s employees, workers, staff, representatives, and agents.
C.11.02
The liability limitations in these general terms and conditions do not apply:
- In case the cause of the damage is based on intent or gross negligence by IANUS or its representatives or agents;
- In the event of culpable breach of material contractual obligations, in which case damages are limited to the foreseeable typical contractual damage at the time of contract conclusion. Material contractual obligations are obligations that protect essential contractual rights and positions of the contracting party, which the contract is supposed to grant him by its content and purpose; essential are also obligations whose fulfillment enables the proper execution of the contract in the first place, and on whose compliance the customer regularly relies and may rely;
- For damages arising from injury to life, body, and health;
- In case of delay if a fixed delivery date is agreed upon;
- In case of fraudulent concealment of a defect;
- In the case of assuming a guarantee and/or procurement or manufacturing risk within the meaning of § 276 BGB by IANUS;
- In cases of mandatory statutory liability, especially under the Product Liability Act.
The above provisions do not involve a reversal of the burden of proof against the customer.
C.11.03
For a breach of duty that does not constitute a defect, the customer can only withdraw or terminate if IANUS is responsible for the breach of duty. A free right of termination by the customer (especially according to §§ 650, 648 BGB) is excluded. Otherwise, the legal requirements and consequences apply.
C.12. Performance and Place of Fulfillment
C.12.01
The place of performance and fulfillment for the services to be provided by IANUS is the business premises of IANUS.
C.12.02
The place of performance and fulfillment for all services to be provided by the customer is the registered office of IANUS.
C.13. Retention of Title / License Retention
C.13.01
All deliveries are made subject to retention of title. For software deliveries, this means that the right to use the software, in accordance with the applicable license terms, is transferred under the condition precedent of a justified demand for surrender by IANUS in accordance with Section C.13.04.
C.13.02
This reservation, together with the following extension, applies until payment of all claims arising from the business relationship with the customer and until complete release from contingent liabilities that IANUS has entered into in the interest of the customer.
C.13.03
Pledging the software is not permitted.
C.13.04
IANUS is entitled to demand the surrender of the software for good cause, especially in case of default in payment, or to cease its provision for use, without this constituting a withdrawal from the contract. At the moment
IANUS demands the surrender of the software from the customer because of any claim arising from the business relationship or due to a release from contingent liabilities that IANUS has entered into in the interest of the customer, any right to use this software ceases, without this constituting a withdrawal from the contract. The condition is that IANUS has announced the demand for surrender to the customer with a performance deadline of 7 days. This deadline can be set simultaneously with the reminder.
If, after the futile expiration of the deadline, the customer continues to use the software, it constitutes a criminal offense under § 106 of the German Copyright Act (UrhG) and can be prosecuted by the public prosecutor’s office ex officio in the event of a special public interest or upon a criminal complaint.
C.14. Confidentiality / Data Protection
C.14.1
IANUS and the customer undertake to treat all knowledge acquired during the contractual relationship regarding trade secrets or information designated as confidential confidentially. Legal provisions remain unaffected.
C.14.02
IANUS will, in particular, comply with the currently applicable data protection regulations.
C.14.03
The customer must ensure that data provided by them does not contain any personally identifiable information within the meaning of relevant data protection regulations.
C.14.04
If and to the extent that IANUS, in the course of providing services, exceptionally has access to the customer’s personal data, the parties will conclude a corresponding data processing agreement before the processing begins. In this case, IANUS will process the relevant personal data solely in accordance with the provisions outlined therein and in accordance with the instructions of the customer.
C.15. Headings / Definition
C.15.01
Headings in the terms and conditions of IANUS serve only for ease of readability and do not affect the meaning and interpretation of individual provisions.
C.15.02
As written declarations of intent and knowledge within the meaning of the terms and conditions of IANUS, statements transmitted in text form (such as by fax, email, or letter) by an authorized representative are also considered.
C.16. Jurisdiction and Substantive Law
C.16.01
For all disputes arising out of or in connection with the contractual relationship between the customer and IANUS, the place of jurisdiction is Dortmund. In this case, IANUS is entitled to sue the contracting party at its respective place of business.
C.16.02
The law of the Federal Republic of Germany applies, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
C.17. Final Provision
If any provision of the contract or a provision subsequently incorporated into it is wholly or partially invalid, void, or unenforceable, or if a gap is found in the contract, this does not affect the validity of the remaining provisions. Sections 306 (2) and (3) of the German Civil Code (BGB) remain unaffected.
D. Special Conditions for Consulting Services
D.0. Object of the Contract
The subject of the contract is the consulting of the customer in the field of geometry and process optimizations.
D.1. Scope of Obligations
IANUS, by virtue of its special technical knowledge, is a qualified consultant in the field of flow simulations. IANUS provides consulting services based on the experience derived from this technical knowledge. If there are specific circumstances within the customer’s domain that deviate from general experience, IANUS is only responsible for considering these circumstances in the consultation if the customer has informed IANUS about such specifics.
D.2. Compensation
Consulting services provided by IANUS under Clause D.1 will be invoiced separately from other services according to the then-current IANUS price list.
D.3. Due Date
Unless expressly agreed otherwise, payments for consulting services provided by IANUS within a month are due 10 days after invoicing. This applies even if the consulting services provided by IANUS for the customer extend over several months.
D.4. General Terms of Service
Furthermore, the general terms of service of IANUS, as outlined in Section C, apply supplementarily to the contractual relationship between the parties and also to consulting services.