Common use of Warranty, limitations on liability Clause in Contracts

Warranty, limitations on liability. 7.1. A warranty for the software only exists with regard to the conformity of the software with the specifications agreed upon at the time of the conclusion of contract, provided that the software is used in accordance with the installation conditions and the conditions of use and that it is fundamentally usable within the meaning of the program description and user instructions. Both parties acknowledge that, according to the state of the art, it is not possible to produce software that is completely free of errors, omissions or discrepancies. Therefore, the software is also deemed to have the agreed quality if it contains errors and if there are omissions or discrepancies of the kind mentioned in sentence 2. The agreed quality also includes the fact that the software may have errors, omissions or discrepancies that occur as a result of improper installation or the incompatibility of the software with other software, provided this does not relate to software supplied by us and released for use with the licensed software. The software's lack of suitability for the customer's purposes is only regarded as a defect if this was the subject of negotiations between the parties and if we have confirmed to the customer in writing that the software is suitable for the customer's purposes; however, such confirmation does not constitute an assurance or a guarantee of quality. Any functional impairments affecting the software that result from incompatibilities or defects in the hardware used by the customer, non-observance of the working environment (hardware and software) specified in the software product description, incorrect operation or the like, do not constitute defects. 7.2. For individually produced software, the agreements on quality are solely based on the specifications to be agreed between the parties. The customer shall provide us with the information necessary for the production of individual software prior to the conclusion of the contract. 7.3. Any responsibility and liability on our part is excluded insofar as the customer has made changes to the software and/or the software environment unless the changes have been made in agreement with us after appropriate consultation and advice. Any liability on our part is excluded in any case if the customer has suffered a loss or a higher loss due to the fact that the customer has not taken reasonable precautions (e.g. data backups, fault diagnoses, regularly checking work results) in the event that the software does not work properly in whole, in part or at times. 7.4. Before connecting or transporting IT products and/or before installing computer programs, the customer shall sufficiently back up the data already on the computer system, failing which it is responsible for any data lost and all related damage sustained.