General Terms and Conditions

§ 1 Scope of these Terms and Conditions
(1) These General Terms and Conditions (hereinafter also referred to as “Terms”) apply to the entire domestic and international business relationship between GAOKE GmbH, Eupener Str. 159, E38, D-50933 Köln, Deutschland (hereinafter referred to as “GAOKE”) and the customer (hereinafter referred to as “Purchasing Partner”). GAOKE’s Terms apply exclusively; additional or different terms or the Purchasing Partner's General Terms and Conditions are hereby expressly rejected. This is also the case even if the submission or acceptance of an offer by the Purchasing Partner is made subject to their own general terms and has last shot priority.
(2) Thus, the Purchasing Partner’s varying terms and conditions are hereby expressly rejected; additional conditions will not be included in the contract even when GAOKE does not expressly reject them. Varying terms and conditions which are agreed to in unique circumstances after GAOKE’ express agreement will supersede these Terms. This also applies in cases where varying agreements were made in the GAOKE offer that forms the basis of the contract.
(3) Depending on the content of the contract entered into between the parties, GAOKE’ Special Conditions in the particular case will be deemed additional terms.
(4) Relevant legal statements and declarations, which are submitted to GAOKE by the Purchasing Partner after the conclusion of the contract (f.e. deadlines, defects, notice of cancellation or reduction) need to be in written form. There are no oral agreements existing.
(5) GAOKE does not enter into contracts with consumer respectively private persons (BGB (German Civil Code) §13). The Terms shall apply only if the Purchasing Partner is a merchant/trader or businessman/company (§ 14 BGB (German Civil Code)), a legal entity under public law or a public law special fund.
§ 2 Content and Formation of the Contract, Order of Terms
(1) The content of the contract is, depending on any specific unique agreements, the sale of GAOKE’ software to the Purchasing Partner as well as possible supplemental performance of maintenance, programming, and installation tasks. This can comprise especially the performance of update and support services, the adaptation and/or customization of software and other services as requested by the Purchasing Partner such as, for example, consulting services in their broader sense (process consulting, infrastructure, security, ramp-up support), training/education, as well as hosting solutions and software services.
(2) Unless otherwise a written binding confirmation is made, GAOKE’ offers are subject to confirmation and are non-binding. Orders are only binding when they have been confirmed by GAOKE or when they are responded to by delivery of the goods or the performance of the service.
(3) The contract is created on the basis of the Purchasing Partner’s order placed by mailing a letter /a fax / an e-mail (= offer) on the one hand and the fulfillment or explicit confirmation of the order (= acceptance) by GAOKE on the other hand. Mere confirmation by GAOKE that the order has been received (e.g. via a confirmation e-mail) does not represent the acceptance of the offer.
(4) The ordering of goods by the Purchasing Goods is considered a binding contract offer. Unless otherwise specified in the order, we are entitled to accept this contract offer within 14 days of its receipt.
(5) Should, contrary to Section 3, GAOKE prepare a unique offer on its part in response to the Purchasing Partner’s prior inquiry, then this offer is merely an invitation for the Purchasing Partner to submit its own offer to contract.
(6) GAOKE advises that the noted system requirements that must be met by the Purchasing Partner reflect always only the lower limit of the requirements and that they should not fall below the noted  data in order to enable the hardware and software to run properly.
(7) The product description, the operating system, and the data carrier format for delivery should be indicated in order to avoid delays and errors in delivery.
(8) Notes to the application of statutory provisions are only of clarification. Even without such clarification, the statutory provisions, insofar as they are not directly modified in these Terms or expressly excluded. The contract documentation is ordered as follows whereby priority is given to the higher ranked document:
•Individual modifications and/or supplements to contractual agreements;
•Individual contractual agreements and especially GAOKE’ offer;
•GAOKE’ Special Conditions;
•GAOKE’ General Terms and Conditions;
•System requirements defined by GAOKE;
•Standards / DIN standards;
•Legal rules.
§ 3 Delivery time, Delivery Complications, Force Majeure, Partial Deliveries
(1) The delivery time is agreed on and specified by GAOKE upon acceptance of the order. If this is not the case, the delivery time is usually about 14 days from closing the contract.
(2) GAOKE is not responsible for delays in delivery and performance under the following circumstances even if binding commitments have been made as to dates and deadlines; and the same applies equally if these circumstances occur at GAOKE’ legal representatives, fulfillment agents, suppliers, or their sub-suppliers:
Circumstances of force majeure as well as other unusual events which GAOKE could not foresee nor avoid and which were not caused by GAOKE which only occurred after the contract was entered into or which, through no fault of its own, were unknown to GAOKE at the time the contract was entered into; furthermore subsequent strikes, fire, floods, labor disputes, interruptions in operations, changes in administrative permits or in the law and administrative orders which cannot be attributed to operational risks. You authorize GAOKE to delay the delivery and/or performance for the duration of the obstruction plus an appropriate ramp-up period. GAOKE has the right to rescind the contract if GAOKE proves to the Purchasing Partner that an unreasonable impediment to performance exists. In the preceding case, claims for damages as well as the Purchasing Partner’s right to rescission may not be asserted. This excludes circumstances which merely lead to temporary and thus acceptable delays in delivery and/or service.
(3) The occurrence of a delay by GAOKE in delivery shall be governed by the statutory provisions. In any case, however, a reminder by the Purchasing Partner is required. If GAOKE is in default of delivery, the Purchasing Partner may claim liquidated damages for delay his replacement. The allowance for damages amounts for each full calendar week of delay or 0.5% of net price (delivery value), but no more than 5% of the order value of the delayed goods. GAOKE reserve the right to prove that the other party no damage or a considerably lower damage than the aforementioned allowance.
(4) In the case of events under Section 2, GAOKE must return payments already made by the Purchasing Partner, if the payments were made in relation to delivery and/or performance. GAOKE, however, can demand that portion of the agreed upon compensation for services and/or performance that have already been completed before the force majeure occurred. Moreover, neither party has any right to a claim under these circumstances.
(5) Partial delivery and/or partial performance is allowed to the extent the Purchasing Partner does not have an obvious interest in them or if they are obviously unreasonable. The Purchasing Partner shall accept partial deliveries. If GAOKE exercises these rights, any agreed upon packaging and shipping costs will only be charged once.
§ 4 Deliveries, Shipping, Transfer of Risk, Acceptance, Delay in Acceptance, Return
(1) Deliveries are done from the storage in Cologne, where the place of performance is. At the request and expense of the Purchasing Partner, the goods are shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we reserve the right to determine the type of shipment (in particular transport company, shipping, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the transfer to the Purchasing Partner. Upon sale, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall be transferred upon delivery of the goods to the carrier, freight forwarder or other specified to execute the dispatch person or institution. If acceptance has been agreed, it is crucial for the transfer of risk. Also in the statutory provisions of the work contract law apply mutatis mutandis to an agreed acceptance. The delivery or acceptance is the same, if the Purchasing Partner is in default of acceptance.
(3) Should the Purchasing Partner be culpable in delaying acceptance of the good and/or service, then GAOKE has the right to choose between insisting on taking delivery or demanding 5% of the purchase price as a lump-sum substitute for damages and expenses. Where damages are especially high such as e.g. where special functionalities deviating from the standard version are ordered, GAOKE reserves the right to assert a verified higher damage amount in lieu of the lump-sum compensation sum set forth in Section 1.
(4) GAOKE has the right over the duration of the Purchasing Partner’s culpable delay in the acceptance to store, at the Purchasing Partner’s risk, the good at its facility, with the freight forwarder, or in a warehouse. For the duration of the delay in acceptance, the Purchasing Partner must pay GAOKE a lump-sum of EUR 20.00 net per week for any incurred storage costs.
(5) In case of return the goods are to be returned parcel like things to GAOKE. The Purchasing Partner  shall bear the cost of returning the goods if the delivered goods ordered corresponds and if the price returned the case of an amount not exceeding 40 euros or if the other party at a higher price the thing at the time of the revocation yet the return or have provided a contractually agreed partial payment. Otherwise, the return for the Purchasing Partner is free of charge. Not parcel things are picked up by a contractor. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for the Purchasing Partner with the dispatch of the revocation or the goods, for GAOKE with their reception.
§ 5 Prices, Terms of Payment
(1) GAOKE delivers against advance, cash on delivery and invoice. If in a particular case otherwise agreed, our actual prices at the time of concluding the contract are applicable, delivering from storage Cologne, in addition to separate legal VAT in the amount of 19% at present and any separate delivery and packaging costs, and to possible costs related to cash on delivery (comp. Article 5, Section 5). There are no discounts.
(2) Upon sale by delivery to a place other than the place of performance (§ 4 section 2) the Purchasing Partner shall bear the cost of transport and the cost of a stock if desired by the Purchasing Partner transportation insurance. Any duties, fees, taxes and other public charges are borne by the Purchasing Partner. Transport packaging and all other packaging according to the packing ordinance, GAOKE do not take back, they become the property of the Purchasing Partner.
(3) The purchase price shall be due and payable within 14 days of the invoice and delivery or acceptance of the goods. For contracts with a contract value of more than 5000 EUR, we are entitled to require a deposit of 30% of the purchase price. The deposit is due and payable within 14 days from date of invoice. For first time customers, we reserve the right to payment of the full invoice amount in advance before - regardless of the value of goods.
(4) If the Purchasing Partner selects advance payment then the agreed purchase price shall be transferred to GAOKE within 10 days after the order is placed and shall reference the purchase order number.
(5) If the Purchasing Partner selects payment against cash on delivery then the amount of EUR 15.00 shall be due for costs related to cash on delivery, which amount must be paid at the time of delivery and in cash. Transfer takes place only after these cash on delivery costs are paid.
(6) When making a payment by cash on delivery the Purchasing Partner must ensure that the shipment will be accepted at the delivery location provided by him. Otherwise, he will have to bear both any agreed upon shipping costs resulting from the failed attempt to delivery and also the shipping costs for a redelivery.
(7) GAOKE may agree in good faith to invoice large companies and administrative agencies for deliveries. Where payment is made against invoice, the invoiced amounts will be due without any deductions within 14 days after the invoice is issued. Prepayments or orders for debit transfers from credit cards or bank accounts will be considered at the time the invoice is issued.
(8) Upon the expiration above payment deadline, the Purchasing Partner is in default. The purchase price is payable during the delay to the respectively applicable statutory default interest rate. We reserve the right to claim further damages. For merchants is our claim to the commercial maturity interest (§ 353 HGB (German Commercial Code)) unaffected
(9) GAOKE has at a minimum the right, when the Purchasing Partner delays payment, to charge interest on the delay in the amount of 8% above the then-current base interest rate. GAOKE has the right to prove and assert higher damages caused by the delay. Should the Purchasing Partner delay payment, then any GAOKE claims against the Purchasing Partner shall be immediately due. This also applies where the Purchasing Partner's assets materially deteriorate or where he discontinues payment. The interest on delay will become due when the time for payment has passed even if no payment reminder is issued. As long as the Purchasing Partner’s payment is delayed, any rights of use that were granted will be suspended.
§ 6 Reservation of Title
(1) All deliveries and services are made subject to reservation of title. The delivered goods will remain GAOKE’s property until the purchase price and all other GAOKE claims against the Purchasing Partner arising out of the current business relationship are fully paid.
(2) The Purchasing Partner has the right to resell the reserved goods in the ordinary course of business. However he is prohibited from granting a security interest or a pledge in the reserved goods to third-parties. GAOKE must be immediately informed of third-party dispositions, especially pledges or conveyances, and any documents required for filing an interference claim must be immediately handed over.
(3) The exercise of rights arising from the reservation of title or from a demand to return the goods shall not be deemed a rescission of the contract.
(4) The Purchasing Partner hereby already assigns to GAOKE any claims that may arise from resale of the goods. The Purchasing Partner has the revocable right to collect on these claims. Upon GAOKE’s request, the Purchasing Partner shall disclose any assigned claims and their debtors. GAOKE has the right to disclose the assignment to the Purchasing Partner’s debtor.
(5) In the event the Purchasing Partner delays payment or expects to discontinue payment, GAOKE will have the right to repossess the reserved good that is in the Purchasing Partner’s possession. The Purchasing Partner must grant access to their offices without prior notice and during office hours to GAOKE employees who have been granted the right to pick up the reserved good. The claim of withdrawal does not automatically mean an action of restitution from contract; GAOKE is rather be entitled to reclaim the goods and the resignation reserve itself. Does not pay the contractor the due purchase price, GAOKE may exercise these rights only if the contractor GAOKE have previously set a reasonable deadline for payment or such a deadline in accordance with statutory regulations is unnecessary.
(6) If third parties assert rights in regard to the reserved goods, e.g. in the event of a pledge, the Purchasing Partner must immediately provide notice of GAOKE’ ownership and must immediately notify GAOKE. If it becomes necessary for GAOKE to intervene, the Purchasing Partner will compensate GAOKE for the costs that arise.
(7) GAOKE has the option to have payments first applied to older debts. GAOKE can first apply payments made by the Purchasing Partner to costs which have already arisen as a result of it exercising its legal rights – especially costs relating to reminders – and then to interest and finally to the main performance.
§ 7 Right of Retention
(1) Unless the Purchasing Partner’s claims are indisputable and have been deemed enforceable, the Purchasing Partner does not have the right to set off its own claims against demands for payment.
(2) The Purchasing Partner does not have the right to oppose GAOKE’ claims for payment by asserting rights to retention – even for claims based on defects – provided that they result from the same contractual event and are undisputed or have been deemed enforceable or are ripe for resolution.
§ 8 In-house and External Products, Data License
(1) In addition to software created by it (original products), GAOKE also sells third-party products which expand on GAOKE’ content and functionality. This can include commercial goods or software created by tertiary producers.
(2) When purchasing a software product, the Purchasing Partner will obtain a license to use this software product pursuant to the specifically applicable conditions of the license. The license conditions of the specific manufacturer apply to third-party products and can be reviewed at any time on the specific manufacturer’s homepage.
(3) When acquiring a software package, the Purchasing Partner acknowledges these license conditions. The software products will remain the intellectual property of the specific licensor. All mentioned trademarks, trade names, and logos remain the property of the specific holder. The copyrights of third parties must be taken into account when using the delivered goods. A product that is free of defects may not be subsequently returned or exchanged.
(4) The Purchasing Partner has the obligation to reasonably protect himself against the loss of data. Because new installations of, and also modifications to, installed software carry the risk of data loss, the Purchasing Partner has the obligation to undertake comprehensive preventative measures for data assurance to prevent data loss prior to making a new installation or installed software modification.
(5) The Purchasing Partner has the obligation to provide regular, risk-appropriate, data assurance at least once a day and must create backup copies in order to prevent the loss of data and to secure information that will guarantee its reconstruction.
§ 9 Hardware and Software use Rights, Copyrights
(1) The Purchasing Partner acquires a simple, non-exclusive right to use the delivered software program. The transferability of the use right and the preparation of a backup copy should be guided in each case by the terms of the license conditions. Unless you need a backup copy to secure future use, you are prohibited from making copies as a matter of principal.
(2) The Purchasing Partner will additionally respect all intellectual rights in the goods and will, at the time of any resale, transfer to his own Contract Parties any limitations on use imposed on him.
(3) GAOKE denies any assignment of use rights to third-parties.
(4) Use in a network is only permitted if explicit agreed-upon expanded contract is granted.
§ 10 Warranty
(1) For the rights of the Purchasing Partner for material and legal defects (including wrong and short delivery or improper installation), the statutory provisions, unless otherwise determined in the following, apply. The special statutory provisions for final delivery of goods remain unaffected in all cases to a consumer (supplier recourse acc. §§ 478, 479 BGB).
(2) Our liability for defects is mainly over the quality of the goods agreed upon. As regards the quality of the product, all products that are the subject of an individual contract are applicable.
(3) Where the nature of the product which has not been agreed, is to be assessed under the statutory scheme, if a defect is present (§ 434 section 1 S. 2 and 3 BGB). However, for public statements of third parties (f. e. advertising statements), we accept no liability.
(4) The warranty claims of the Purchasing Partner that his statutory inspection and notification (§§ 377, 381 HGB) is fulfilled. Shows up in the investigation or later a defect, GAOKE must be informed in writing forthwith. The notification is immediately if it occurs within two weeks and to meet the deadline, timely mailing of the notification. Regardless of this investigation and reprimand the Purchasing Partner is obligated to notify in writing of obvious defects (including wrong and short delivery) within two weeks after delivery, and also the timely dispatch of the notification to the deadline. If the Purchasing Partner fails the proper investigation and / or notification, our liability for the defect notified is excluded.
(5) If the delivered item is defective, GAOKE can first select whether a subsequent performance by eliminating the defect (rectification) or by delivery of conforming goods (replacement) will be provided. So GAOKE can comply with the duty to remove defects by supplying a new unit or a new version of the program. The right to refuse subsequent performance under the legal conditions remains unaffected.
(6) GAOKE is authorized to make the due fulfillment of the condition that the Purchasing Partner pay the purchase price due. However, the Purchasing Partner is entitled to retain a reasonable relative to the defect part of the purchase price.
(7) The Purchasing Partner has to give GAOKE the necessary time and opportunity for subsequent performance owed, in particular to pass the impugned goods for testing purposes. In case of replacement, the Purchasing Partner has to return to GAOKE the defective item under the statutory provisions. The remedy does not include the de-assembly of the defective goods or the re-assembly, if GAOKE did not originally committed to assembly.
(8) The measures necessary for the purpose of testing and subsequent performance, in particular transport-, travel-, labor- and material costs, shall GAOKE if there is an actual shortage. However, where a defect request of the Purchasing Partner is unjustified, GAOKE may demand the related expenses compensated from the Purchasing Partner.
(9) Should the rework or replacement fail after a reasonable period, the Purchasing Partner may choose to reduce the purchase price (mitigation) or cause the contract to be rescinded (rescission) The period for rework or replacement is at least four weeks. Rework or replacements are deemed failures if three attempts to remove the defect have not been successful.  Repair or replacement have failed if three attempts to correct the deficiency did not lead to success or are according to the statutory provisions unnecessary, the Purchasing Partner may withdraw from the contract or reduce the purchase price. Insignificant defects, however, gives not the right of cancellation.
(10) In the event the contract is rescinded, the Purchasing Partner has the duty to return the unit and software and to destroy the original data storage device(s) and to destroy all copies of the software, including any backup copies. Upon request, the Purchasing Partner must provide GAOKE either with evidence, or a sworn affidavit, stating that the destruction took place.
(11) Purchasing Partner claims for compensation or reimbursement of expenses exist only in accordance with § 8 and are otherwise excluded.
(12) The Purchasing Partner must return defective goods in a secure package. Within the scope of its warranty of defects, GAOKE will immediately compensate the Purchasing Partner for any counter performance already rendered and for the costs of return. This does not include any extra amounts created because the Purchasing Partner ships the goods to a location other than the place of performance. The Purchasing Partner may designate the Purchasing Partner’s customer account for any credit of the refund amount and for debiting of any future orders.
(13) If the notice of defects was unjustified and the goods were shown to be free from defects and the Purchasing Partner has acknowledged this, or negligently failed to acknowledge this because the cause of the notice of defect was within his own area of influence or responsibility, then the Purchasing Partner must compensate GAOKE fully for all expenses which GAOKE incurs as a result of the unjustified notice of defect.
(14) Claims on the warranty of defects will not lie where the defect arose because of inappropriate handling, use, or modification or is due to wear and tear caused by over-utilization. The warranty for defects does not apply where the contract product is unprofessionally installed by the Purchasing Partner or a third person and/or is independently maintained, repaired, used, changed, or subjected to ambient conditions which do not conform to installation and/or system requirements.
(15) The limitations period for the warranty of defect is one year, calculated from the time the product is delivered.
(16) GAOKE provides notice that under the state of the art it is not possible to create hardware- software that is free of error in all applications and combinations. Given the known complexity of the software, GAOKE therefore grants no assurances that the software would be suitable in a specific case for a particular purpose or that it would be compatible with all other software or hardware products or that it can be absolutely used without any interruptions.
§ 11 Product Liability
(1) The goods supplied only offer the safety that due to licensing regulations, operating instructions, the manufacturer's instructions for the use of the product - can be expected and other instructions - especially with regard to any prescribed examinations. The extent permitted by law, the replacement requirements for GAOKE derived from the Product Liability Act claims for damages suffered by the Purchasing Partner as an entrepreneur and product liability claims, which can be derived from other provisions are excluded.
(2) The Purchasing Partner expressly waive the assertion of claims for damage to property, suffered in the course of his business (§ 9 Product Liability Act).
(3) The Purchasing Partner's results in the loss of any recourse obligation, promptly and in detail to inform GAOKE about claims made by injured parties in knowledge and proclaim GAOKE in the event of a legal dispute with a service of the action immediately.
(4) If the Purchasing Partner is aware of defects of this product according to the Product Liability Law, it is for the immediate notification of defects GAOKE stating further details on the purchase of the product at GAOKE (date, delivery, device number, invoice number etc.) required. In the case of resale of the product to a reseller, the Purchasing Partner, issues a waiver in accordance with § 9 Product Liability Act and the above-mentioned obligations for immediate defects message and the declaration of rights of victims to its resellers committed to bind and these in turn to commit in the same way for further bindings.
§ 12 Liability
(1) Claims for indemnification outside of statutorily imposed claims for defects, may be only asserted by the Purchasing Partner against GAOKE for intentional or grossly negligent conduct. This exclusion of liability does not apply to injuries to life, body, or health and for material breach of contract duties.
(2) Except in the case of intentional or grossly negligent acts and for damages arising from injury to life, body, or health, GAOKE’ liability is limited to the amount of the damages that could be foreseen as typical at the time the contract was entered into. GAOKE is only liable for negligence:
(a) for damages arising from injury to life, body or health
(b) for damages arising from breach of an essential contractual obligation (obligation whose fulfillment enables the proper execution of the contract and on whose compliance the Purchasing Partner relies and may rely), in which case GAOKE´s liability is the replacement of the foreseeable, typically occurring damage limited.
3) Die sich aus Abs. 2 ergebenden Haftungsbeschränkungen gelten nicht, soweit wir einen Mangel arglistig verschwiegen oder eine Garantie für die Beschaffenheit der Ware übernommen haben. Das gleiche gilt für Ansprüche des Vertragspartners nach dem Produkthaftungsgesetz.
(4) Wegen einer Pflichtverletzung, die nicht in einem Mangel besteht, kann der Vertragspartner nur zurücktreten oder kündigen, wenn wir die Pflichtverletzung zu vertreten haben. Ein freies Kündigungsrecht des Vertragspartners (insbesondere gem. §§ 651, 649 BGB) wird ausgeschlossen. Im Übrigen gelten die gesetzlichen Voraussetzungen und Rechtsfolgen.
(5) GAOKE’s liability under the Product Liability Law and other binding regulations remains unaffected.
(6) Claims for compensation of damages against GAOKE are not recognized if the damage would not have been incurred by the Purchasing Partner f. e. by properly use under his care. If hard- and software are delivered this provision will only apply if GAOKE has properly trained the Purchasing Partner in the use and data protection.
(7) The Purchasing Partner assumes the duty to regularly check his data for viruses. GAOKE does not indemnify for damages or loss of data resulting from viruses delivered through data storage devices. Liability for damages is particularly excluded where the Purchasing Partner could have prevented it by employing a process of daily data security and backup.
§ 13 Limitation
(1) Notwithstanding § 438 section 1 No. 3 BGB, the general limitation period for claims for material defects and defects is one year from delivery. If acceptance is agreed, the statute of limitations begins to decrease.
(2) Special legal provisions for collateral rights of third parties (§ 438 section 1 No. 1 German Civil Code (BGB)), with fraudulent intent by the seller (§ 438 section 3 BGB) and to claims in the suppliers responsibility for final delivery to a consumer (§ 479 BGB) shall not be affected.
(3) The foregoing limitation of sales laws also apply to contractual and non-contractual claims for damages of the contractor, based on a defect in the goods, unless the application of the regular statute of limitations (§§ 195, 199 BGB) would in some cases in a shorter period lead. The limitation of the Product Liability Act shall remain unaffected in any case. Otherwise apply pursuant to claims for damages by the Purchasing Partner is § 10 of the statute of limitations only.
§ 14 Unique Features for Services related to Contracts for Specific Services (Maintenance, Programming, Installation, Customization)
(1) Should in addition to the purchase of software in the form of contracts for specific service (such as maintenance, programming services, installation, customization) GAOKE perform supplementary or exclusive services, the following supplemental and/or varying conditions apply:
(2) The scope of the service results from the specific details that form the basis of the specific contract between the parties.
(3) The Purchasing Partner must comply with all duties of cooperation which are within his sphere of influence and which are required for GAOKE to perform contracts for specific services. The Purchasing Partner shall bear responsibility for any lengthening in the performance accompanying insufficient exercise of its duty to cooperate which results in GAOKE not beginning the performance and/or completing it only in an untimely manner.
(4) The type and scope of GAOKE’ service and the Purchasing Partner’s duty to cooperate may be described in more detail in the particular specific contracts.
(5) GAOKE may perform the services itself, that is with the assistance of its employees, and/or it may in its discretion utilize the services of third parties, e.g. sub-contractors.
(6) The warranty period is for one year after the Purchasing Partner’s acceptance.
(7) The specific service is deemed accepted if the Purchasing Partner has productively used the service performed by GAOKE for a period of four weeks (e.g. by using the programming in the Purchasing Partner’s business operations or by using the installed software) during which period GAOKE is not notified of a claim for defect.
§ 15 Unique Features and Variations related to Contracts for the Performance of Services (Consulting, Education, Training)
(1) Should in addition to the purchase of software in the form of contracts for performance of services (such as consulting services, carrying out education courses, training, etc.) GAOKE perform supplementary or exclusive services, the following supplemental and/or varying conditions apply:
(2) The scope of the service results from the specific details that form the basis of the specific contract between the parties.
(3) The Purchasing Partner must comply with all duties of cooperation which are within his sphere of influence and which are required for GAOKE to perform the services as set forth in the contract. The purchasing partner shall bear responsibility for any lengthening in the performance accompanying insufficient exercise of its duty to cooperate which results in GAOKE not beginning the performance, or beginning it late, and/or completing it only in an untimely manner.
(4) The type and scope of GAOKE’ service and the Purchasing Partner’s duty to cooperate may be described in more detail in the particular specific contracts.
(5) GAOKE may perform the services itself, that is with the assistance of its employees, and/or it may in its discretion utilize the services of third parties, for example sub-contractors.
(6) The parties will agree in advance regarding expenses or charges (e.g. travel costs, overnight stay costs etc.) required to properly performing the contractually owed services.
§ 16 Inquiries, Processing, Data Usage
All personal data that are obtained during an inquiry will be treated as confidential. Only data necessary for processing the business transaction will be obtained, stored, and used. GAOKE let the Purchasing Partner know, moreover, that GAOKE stores data from the contract in accordance with § 28 BDSG (Federal Data Protection Act) for the purpose of data processing and reserves the right to use and forward the data as necessary for the fulfillment of the contract (f.e. insurance, credit information companies) to forward.
§ 17 Data Protection and Confidentiality
(1) To the extent documentation, information, and data which the parties obtain directly in connection with the project that is the subject of this contract and which is related to the particular other party or to third parties is not obviously publicly available and/or has not otherwise been made public, the parties must treat such documentation, information, and data as confidential and treat it with at least the care of an ordinary merchant as well as according to the determinative provisions of the laws protecting data, and specifically according to the provisions of BDSG (Federal Data Protection Act) §6.
(2) The Purchasing Partner consequently assumes the duty to maintain as confidential for an unlimited duration and to neither record, nor transmit, nor process all information to which it has been granted access and especially that which is designated confidential or which is cognizable according to other criteria as belonging clearly to GAOKE’ business and operations secrets. He must ensure that, without restriction as to time, any third parties working on his behalf will refrain from processing, transmitting or unauthorized recording of such information.
(3) Unless necessary to perform any assumed duties, the Purchasing Partner assumes the duty not to completely not partially pass on the programs or documentation. He must impose a corresponding obligation on any third party engaged for the purpose of creating the programs.
§ 18 Notices by Electronic Mail (E-Mail)
(1) Subject to the following provisions and to the extent the Purchasing Parties communicate via electronic mail (e-mail), the Purchasing Partners acknowledge the unlimited effect of any declarations of intent communicated via this medium.
(2) Ordinary information may not be suppressed or made anonymous in the e-mail; that is, they must include the name and e-mail address of the sender, the time it was sent (date and time), and a restatement of the sender's name at the end of the message. An e-mail received within the scope of this condition is subject to rebutting evidence by the other Party.
(3) All communications are to be worded in German or English.
§ 19 Claims Assignment
Without GAOKE’ consent, the Purchasing Partner does not have the right to assign or transfer his right and duties arising out of this contract.
§ 20 Changes in the Terms and Conditions
GAOKE reserves the right to change its general terms and conditions. As part of its recurring obligations, GAOKE will inform the Purchasing Partner of any changes and notify him of the – highlighted – changed provisions. The Purchasing Partner will be deemed to have silently accepted the changes from which time the contractual relationship will be deemed subject to the new version, if he does not advise within six weeks after being notified that he does not accept the new version. In all other cases, the contractual relationship will be continued subject to the unchanged version of the Terms. GAOKE assumes the duty to specifically inform the Purchasing Partner regarding the desired changes and the significance that they have as to his conduct.
§ 21 Severability clause
The remaining provisions will remain unaffected if one of the provisions included in the Terms is deemed or becomes invalid, or should a provision be found to contain a void.
§ 22 Place of Performance, Place of Jurisdiction and Applicable Law
(1) It is agreed that GAOKE headquarter in Köln, Germany, is the place of performance for all bilateral performances arising out of this contract. Köln is place of jurisdiction for all claims. German law alone applies and international provisions, such as the UN Convention on Sales, are excluded.
(2) The requirements and effects of retention of title according to § 6 are subject to the law of the respective storage location of the matter,  as far as the choice of law in favor of German law is invalid or ineffective.
(3) If the Purchasing Partner is within the meaning of the German Commercial Code (HGB), a legal entity under public law or a public special fund, the exclusive - and international - place of jurisdiction for all disputes arising from the contractual relationship, directly or indirectly arising disputes GAOKEs headquarter in Cologne. However, GAOKE is also entitled to bring an action at the general jurisdiction of the Purchasing Partner.
§ 23 Binding Language Version
Also these Terms are available in English language, only the German version of these Terms is legally binding.

State of Terms of Trade: June 2013