Terms and Conditions

General Terms and Conditions

I. Scope of Application

These General Terms and Conditions (hereinafter “Terms”) shall exclusively govern all business relations between GONICUS GmbH (hereinafter “GONICUS”) and the contracting party, in the version valid at the time the contract is concluded. Any conflicting or deviating terms and conditions of the contracting party shall not apply unless GONICUS has expressly agreed to their validity in writing.
GONICUS reserves the right to modify these Terms, provided such changes do not affect material contractual obligations, such as prices or performance content, or are not unreasonable for the contracting party. Any amendments shall take effect 14 days after publication on www.gonicus.de and notification by email, unless the contracting party objects in writing within that period.

II. Formation of Contract

The services, goods, and prices offered by GONICUS — including information provided in brochures, advertisements, analyses, documentation, or similar publications — do not constitute binding offers or warranties regarding characteristics. They are invitations to treat and shall not be construed as offers under §§ 145 ff. of the German Civil Code (BGB). Any warranties or contractual commitments require express written agreement.
Written offers made by GONICUS shall remain valid for 14 calendar days unless otherwise stated in writing. The relevant period begins on the date of the offer.
The contracting party shall remain bound by its order or offer for 14 calendar days from receipt by GONICUS. If GONICUS requests further information to assess the offer, this period shall be extended by the time elapsed between the request and the receipt of the information.
A contract is deemed concluded upon timely acceptance of a written offer by GONICUS or upon written confirmation of an order or offer submitted by the contracting party. Fulfilment of the order by GONICUS may be deemed equivalent to written confirmation. Email communication shall satisfy the written form requirement for this purpose.

III. Prices

All prices and license fees shall be individually negotiated between GONICUS and the contracting party prior to the commencement of any assignment. Depending on the nature of the services, hourly rates, daily rates, or flat fees may apply. Unless otherwise expressly agreed in writing, all prices are quoted in EURO exclusive of statutory VAT, shipping, packaging, and insurance.
Prices and license fees shall include installation services, training in the use of software products, delivery of accessories, or other services only if expressly agreed in writing.

IV. Terms of Payment

Invoices issued by GONICUS shall be payable in full within five (5) business days from the date of receipt. The date of payment shall be deemed the date on which GONICUS receives the funds and is able to dispose of them. Payments shall only be deemed discharging if made directly to GONICUS or to a bank account specified by GONICUS.
GONICUS shall be entitled to request reasonable partial payments for separately completed portions of the contract.
The contracting party shall only have a right to set-off if its counterclaims have been legally established or are undisputed by GONICUS. The contracting party may only exercise a right of retention if its counterclaim arises from the same contractual relationship.
If justified concerns arise regarding the financial standing of the contracting party, GONICUS shall be entitled to require advance payment before making deliveries. In the event of payment default, GONICUS may suspend further services until all outstanding amounts under the relevant contract — or any economically connected or prior contracts — have been settled or adequate security has been provided. Should the contracting party fail to comply with such a request, GONICUS shall be entitled, without prejudice to any other rights, to dispose otherwise of the goods and to charge liquidated damages in the amount of 20% of the agreed purchase price, unless the contracting party proves that the actual damage incurred by GONICUS is lower.

V. Delivery and Delay in Delivery

Risk shall pass to the contracting party upon handover of the goods to the carrier. The choice of transport method lies with GONICUS. Timely acceptance of delivery is a material contractual obligation of the contracting party. In the case of collection by the contracting party, risk shall pass upon provision of the goods for loading. GONICUS does not provide transport insurance unless explicitly agreed.
Partial deliveries are permissible and may be invoiced separately, unless such deliveries are not economically usable by the contracting party.
For new contracting parties, delivery of goods shall only be made against cash on delivery or advance payment.
GONICUS’s obligation to deliver is subject to correct and timely supply by its own suppliers, unless GONICUS is responsible for the delay or incorrect delivery.
Delivery dates shall be deemed non-binding unless expressly confirmed as binding in writing. Delivery periods commence upon contract conclusion unless otherwise agreed. If binding delivery periods are exceeded, the contracting party must grant GONICUS a reasonable grace period while declaring its intent to withdraw from the contract after the grace period expires. If delivery does not occur within this additional period, the contracting party may withdraw from the contract — subject to any further rights under clause XIV — and waives all other claims.
Force majeure events or operational disruptions at GONICUS or its suppliers that are beyond GONICUS’s control and temporarily prevent performance shall entitle GONICUS to extend agreed delivery periods by up to four months. If performance becomes unreasonable for either party, that party may withdraw from the contract by written notice. Events equivalent to force majeure include any circumstances that substantially hinder or render delivery impossible, whether arising internally or externally.
Title to all goods delivered (“retained goods”) shall remain with GONICUS until full payment of all claims arising from the contractual relationship has been made. This retention of title shall also apply to claims included in current account balances (current account retention).
As long as title has not passed, the contracting party shall immediately inform GONICUS in writing if the retained goods are subject to seizure or other third-party intervention. If the third party is unable to reimburse GONICUS for the judicial and extrajudicial costs of legal action under § 771 ZPO, the contracting party shall be liable for the resulting loss.
The contracting party may only dispose of retained goods in the ordinary course of business. Claims arising from resale are hereby assigned to GONICUS in advance without the need for a separate declaration in each individual case. Upon request, the contracting party shall provide a list of such claims and inform the purchasers of the assignment, instructing them to pay GONICUS directly. GONICUS is entitled to notify such third parties and collect the claims directly. Pledging or transferring retained goods by way of security is not permitted.
The contracting party shall store retained goods separately or label them clearly as such.
The return of retained goods shall only be deemed a withdrawal from the contract if GONICUS expressly declares it as such.
GONICUS is entitled to demand reasonable and adequate security from the contracting party to ensure fulfillment of contractual obligations. If the value of securities held by GONICUS exceeds the secured claims by more than 20%, GONICUS shall release securities at the contracting party’s request accordingly.

VI. Installation

GONICUS shall install the delivered product in operational condition at the contracting party’s site within Germany, provided that installation is included in the agreed price or has been separately commissioned by the contracting party.
Operational readiness of the installed product shall be confirmed by a successful functional test using test procedures and programs developed by GONICUS, and shall be documented in writing by the contracting party. This confirmation shall constitute acceptance. If such written confirmation is not provided despite a successful functional test, operational readiness shall nonetheless be deemed accepted as of the date of the test, unless the contracting party fails to respond within a reasonable grace period of at least two weeks set by GONICUS, including notice of the legal consequences of non-response. Minor deviations shall not entitle the contracting party to refuse acceptance.
If installation in operational condition cannot be performed after delivery due to reasons attributable to the contracting party, operational readiness shall be deemed established as of the delivery date, provided GONICUS has granted a 30-day period with notice of the consequences of its expiration and the contracting party has failed to enable installation within this period.
GONICUS is under no obligation to connect the delivered product to third-party equipment not supplied by GONICUS.

VII. IT Projects

Beyond the delivery and, where applicable, installation of hardware or software, GONICUS shall only be obligated to fully design, plan, and implement IT concepts and/or to develop new or modify existing custom software (“proprietary software”) if expressly agreed in writing.
The licensing of proprietary software developed by GONICUS shall be subject to a separate agreement, which shall specifically govern rights of use, modification, and transfer to third parties.
Any planning or implementation timelines provided by GONICUS are non-binding unless explicitly confirmed in writing.
The provisions of clauses VI.2 through VI.4 shall apply accordingly to the acceptance of proprietary software.

VIII. Support

GONICUS shall provide support services upon agreement. Support includes consulting, guidance, and assistance with specific technical issues affecting the operational usability of the IT systems at the contracting party’s premises. Where technically feasible, the contracting party may choose to perform required inputs and changes under the guidance of GONICUS or to have them carried out by GONICUS directly. Excluded from support are all programming activities exceeding what is necessary for troubleshooting and system maintenance, as well as the development of complex IT concepts, feasibility studies, or similar IT projects.
GONICUS makes no guarantees regarding the resolvability of any support request.
Services rendered under clause VIII.1 shall be billed according to the agreed rates specified in clause III.1. Billing shall commence at the start of error diagnosis, which may begin with telephone consultation, and end upon resolution of the issue or a determination that, despite commercially reasonable efforts, GONICUS is unable to resolve the issue.

IX. Duties of the Contracting Party

The contracting party shall provide GONICUS with all documents and information required for the execution of the work and shall ensure the functionality of all necessary technical infrastructure — including power supply, telephone lines, and data connections — and make such infrastructure available to GONICUS free of charge and to a reasonable extent. Where necessary, the contracting party shall also grant GONICUS access to the IT systems and premises where services are to be performed and shall designate an on-site employee as a point of contact.
In the case of installations pursuant to clause VI, the contracting party shall actively support GONICUS in enabling such installation to the extent reasonably possible. This includes, among other things, preparing and equipping a suitable installation site and refraining from modifying, mishandling, or subjecting the delivered product to abnormal conditions prior to installation.
The contracting party shall take appropriate precautions in the event that software or systems supplied by GONICUS fail to function properly — for example, by performing daily data backups, monitoring for malfunctions, and regularly checking the results of data processing. Unless otherwise explicitly stated in advance, GONICUS may assume that all data it encounters has been backed up by the contracting party.
The contracting party shall bear any disadvantages and additional costs resulting from a breach of the above obligations.

X. Warranty for Hardware

GONICUS warrants that the delivered hardware is free from material and manufacturing defects at the time of transfer of risk and that it possesses the characteristics expressly confirmed in writing. No warranty is provided regarding the merchantability or suitability of the hardware for any specific purpose unless expressly agreed in writing.
Technical specifications or quality descriptions provided by GONICUS do not constitute warranties unless expressly confirmed as such in writing by GONICUS.
The contracting party shall inspect the delivered goods and packaging immediately upon receipt. Any defects, shortages, or incorrect deliveries must be reported to GONICUS in writing within five (5) business days of delivery. Hidden defects must be reported promptly upon discovery. Failure to comply with this obligation shall be deemed acceptance of the goods. The contracting party shall, to the extent reasonable, take all measures required to identify, report, isolate, and document defects or irregularities.
Warranty claims for material defects shall expire one (1) year after the transfer of risk, provided the contracting party is a legal entity under public law, a special fund under public law, or a business acting in a commercial or self-employed capacity at the time of contract conclusion. Statutory claims remain unaffected if GONICUS is mandatorily liable by law or has expressly agreed to a longer warranty period, particularly in cases involving guarantees. Minor deviations in color, quality, or weight customary in trade shall not constitute defects.
Assignment of warranty claims by the contracting party is excluded.
If installation is not carried out by GONICUS at the request of the contracting party, the burden of proof for proper installation lies with the contracting party in the event of a warranty claim.
The contracting party shall follow GONICUS’s instructions regarding the use of hardware and the identification, reporting, and resolution of defects. Warranty coverage shall be void if the hardware is improperly installed, maintained, repaired, used, or modified by the contracting party or third parties, or if the hardware is subjected to environmental conditions inconsistent with GONICUS’s or the manufacturer’s specifications — unless the contracting party proves that such actions are not the cause of the defect. Warranty shall also lapse if technical labels, serial numbers, or other identifiers are removed or altered without GONICUS’s written consent.
If, upon inspection, GONICUS determines that no warranty issue exists, the costs of inspection and any repairs shall be invoiced in accordance with clause III.1.
In the event of a warranty claim, GONICUS shall only be obligated to restore the hardware and software installation to the condition in which it was delivered. GONICUS is not responsible for backing up or restoring the contracting party’s data unless a separate written agreement exists covering this service.

XI. Gewährleistung für Fremdsoftware

Software products and operating systems from third-party providers (“third-party software”) are provided by GONICUS solely on the basis of, and subject to, a separate software license and/or software transfer agreement between the third-party provider and the contracting party. GONICUS provides no warranty for such third-party software.
No warranty claims shall arise for software not supplied by GONICUS or for software operated on systems that do not meet the minimum hardware or software requirements set out in the relevant product documentation.
Where third-party software is sold by GONICUS in its own name, the provisions of clause X shall apply accordingly.

XII. Warranty for IT Projects / Proprietary Software

GONICUS warrants that IT concepts and proprietary software developed and implemented as part of IT projects in accordance with clause VII.1 shall be free from defects that eliminate or materially impair their value or suitability for ordinary use or the use specified in the contract. Minor impairments of value or suitability shall not be taken into account. The contracting party acknowledges that, according to the current state of technology, it is not possible to create completely error-free software.
A software defect exists only if program functions deviate reproducibly from the specifications in the functional description and such deviation is demonstrably not caused by defects in hardware, system software, or other components not supplied by GONICUS.
The warranty period shall be one (1) year, commencing upon formal acceptance of the software.
GONICUS warrants that proprietary software developed and licensed for a fee meets the performance and functional specifications defined in the product documentation valid at the time of licensing, and that it is free from defects that eliminate or significantly impair its value or suitability for the contractual use. GONICUS further warrants that the licensed proprietary software is, at the time of transfer, free from third-party rights that would restrict its intended contractual use. Technical data, specifications, and descriptions in the product documentation do not constitute warranties unless expressly confirmed in writing by GONICUS.
GONICUS warrants the compatibility of the proprietary software with the IT environment of the contracting party as defined or agreed at the time of contract conclusion, and with the license conditions applicable at that time. Any subsequent changes by third parties that impair such compatibility or conflict with newer license conditions shall not constitute a defect in the contractual performance.
In all other respects, clauses X.2, X.3, and X.5 through X.9 of these terms and conditions shall apply accordingly.

XIII. Test and Maintenance Materials

Diagnostic software, documentation, devices, and other materials required by GONICUS for installation, warranty services, or other support tasks may be delivered together with GONICUS products and, upon request, stored at the contracting party’s premises. However, such materials shall remain the property of GONICUS.
The contracting party shall ensure proper storage of these test and maintenance materials and may not use them or grant access to third parties without prior written consent from GONICUS.

XIV. Limitation of Liability

GONICUS shall only be liable — including for its executive staff, employees, representatives, and vicarious agents — for damages arising from breach of contractual or non-contractual obligations (including impossibility, delay, culpa in contrahendo, and tort) in cases of intent or gross negligence. This limitation shall not apply to breaches of essential contractual obligations where failure would endanger the purpose of the agreement.
In cases of slight negligence, GONICUS’s liability shall be limited to damages that are typical and foreseeable based on the circumstances known at the time of contract conclusion. In such cases, GONICUS shall not be liable for indirect or consequential damages or lost profits.
The above limitations do not apply to liability for injury to life, body, or health; liability arising from fraudulent concealment of a defect; the assumption of a guarantee or procurement risk; or mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
GONICUS shall not be liable for security vulnerabilities, including deficiencies in secure data transmission, unless caused by intentional or grossly negligent conduct or if the assurance of such security was explicitly part of the contractual obligation.
If damage results from an event attributable to a service provider with whom GONICUS has contracted, GONICUS shall not be liable for such damage.

XV. Data Protection

Unless expressly agreed otherwise in writing, any information or data provided by the contracting party to GONICUS shall not be considered confidential.
Under the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG), the collection, storage, modification, transmission, or use of personal data is permitted for the purpose of fulfilling the company’s own business objectives, provided it serves the purpose of a contractual or contract-like relationship with the data subject (§ 28(1) no. 1 BDSG). GONICUS reserves the right to make use of this provision. Special categories of personal data (§ 3(9) BDSG) shall not be collected or processed.
The contracting party agrees that the data required for contract execution may be stored by GONICUS and, where necessary for contractual performance, transmitted to partner companies commissioned by GONICUS.

XVI. Final Provisions

If GONICUS receives confidential documents from the contracting party that are explicitly marked as confidential, GONICUS shall treat such documents accordingly and instruct its employees to maintain confidentiality. The same obligation applies reciprocally to the contracting party.
The assignment of rights and claims arising from a contract with GONICUS requires the prior consent of the other party. This does not apply to the assignment of payment or license fee claims.
If the contracting party transfers GONICUS products to third parties, it shall keep records of such transfers and, upon request, provide GONICUS with information necessary to inform recipients of important product or safety information, if required.
No oral agreements have been made. Any side agreements, amendments, or additions must be confirmed in writing by GONICUS to be valid. This also applies to any waiver of the written form requirement.
GONICUS reserves the right to implement product changes that do not impair functionality.
All business relationships between the contracting party and GONICUS shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of performance and — to the extent legally permissible — the exclusive place of jurisdiction for all disputes arising from a contract with GONICUS shall be Arnsberg, Germany. GONICUS reserves the right to bring legal action at the contracting party’s general place of jurisdiction.