General Terms and Conditions of Business and License of INNOSYSTEC GmbH


1 Scope

1.1 All business relations between INNOSYSTEC GmbH (hereinafter referred to as “INNOSYSTEC”) and the CUSTOMER (hereinafter referred to as “CUSTOMER”) are exclusively subject to the following General Terms and Conditions of Business and Licence, unless otherwise stipulated in our individual offer. INNOSYSTEC does not recognise any terms and conditions of the CUSTOMER that deviate from or contradict these terms and conditions, unless INNOSYSTEC has given its express consent. Even if INNOSYSTEC carries out the deliveries and services without reservation in the knowledge of terms and conditions of the CUSTOMER that deviate from or contradict these General Terms and Conditions of Business and Licensing, this does not mean consent – the present General Terms and Conditions of Business and Licensing also apply in this case.

1.2 These General Terms and Conditions of Business and Licensing shall also apply to all future business relations with the CUSTOMER, even if they are not separately agreed again.

1.3 Insofar as INNOSYSTEC delivers hardware from third parties (e.g. manufacturers) under these General Terms and Conditions of Business and Licensing, their terms and conditions take precedence over the contractual terms and conditions of INNOSYSTEC.

2 Conclusion of Contract

2.1 The offers of INNOSYSTEC are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.

2.2 INNOSYSTEC reserves all industrial property rights and copyrights regarding its cost estimates, technical designs and other documents (hereinafter referred to as “Documents”). The Documents may only be made available to third parties with the prior consent of INNOSYSTEC and must be returned to INNOSYSTEC immediately upon request or destroyed if INNOSYSTEC does not receive the order. Sentences 1 and 2 of this section 2.2 apply accordingly to the CUSTOMER’s documents, although these may be made accessible to third parties to whom INNOSYSTEC has lawfully subcontracted delivery.

2.3 INNOSYSTEC reserves the right to change the Software Products in the sense of section 3.1 during continuous product development and product improvement, insofar as this is reasonable for the CUSTOMER.

3 Subject of the Contract

3.1 The subject of these General Terms and Conditions of Business and Licensing is the permanent transfer of the computer programs distributed by INNOSYSTEC, including any demo versions in object code, including the associated application documentation – if available – in paper form or as pdf format, and the granting of the rights specified in section 7 (“Software Product”). The release of the source code is generally not owed. The hardware and software environment within which the Software Product is to be used is not part of these Terms and Conditions. The CUSTOMER shall be responsible for checking the compatibility of the software with its own hardware.

3.2 The Software Product also includes new editions or supplements to the Software Product provided by INNOSYSTEC to the CUSTOMER during the Term and pursuant to this Agreement.

3.3 The Software Product is the intellectual property and integral know-how of INNOSYSTEC.

3.4 INNOSYSTEC reserves all rights, in particular copyrights, rights of use and industrial property rights to the items released to the CUSTOMER, in particular regarding software material, test programmes, documents, information and data, unless they are granted to the CUSTOMER on the basis of an agreement or the law (in particular copyright or property rights).

3.5 The type and nature of the owed Software Product result exclusively and completely from the performance description of the offer or the user manuals (see section 3.1). Other descriptions of the INNOSYSTEC products, public announcements and advertising do not contain any performance descriptions owed to the CUSTOMER.

3.6 For copyright reasons, the CUSTOMER may not make any partial or temporary changes, translations, reproductions, or so-called reverse engineering of the Software Product, regardless of the type and in what manner. Printing out the source code is also an impermissible reproduction.

4 Prices, Terms of Payment, Set-Off

4.1 The agreed prices shall be determined in accordance with the purchase contract. All prices do not include taxes, fees, levies, deductibles and withholding taxes. If such taxes, fees, levies, deductibles and withholding taxes are payable by INNOSYSTEC, INNOSYSTEC has the right to adjust the prices accordingly.

4.2 Unless otherwise agreed, payment shall be due within 30 days of the invoice date.

4.3 The CUSTOMER has the right to offset only in the case of undisputed, acknowledged, or unchallenged recognised counterclaims. The CUSTOMER is only entitled to assert the right of retention if his counterclaim is based on the same contractual relationship.

5 Terms of Delivery, Installation, Transfer of Risk, Delay in Delivery

5.1 The delivery of the Software Product by INNOSYSTEC takes place on a data carrier, by the retrievable provision on a server hosted by INNOSYSTEC or pre-installed on the respective hardware. INNOSYSTEC provides the CUSTOMER with the access data for download separately. For the use of the Software Product in the contractually agreed scope, the CUSTOMER receives a personal licence key from INNOSYSTEC. The CUSTOMER is exclusively entitled to use this licence key only in connection with the delivered Software Product. The provisions also apply to new editions or supplements of the Software Product.

5.2 The delivery dates agreed with the CUSTOMER shall be subject to the proviso of self-delivery and presuppose that all commercial and technical questions between the contracting parties have been clarified and that the CUSTOMER has fulfilled all obligations incumbent upon it, such as the timely provision of documents, required permits, supplies or approvals or the payment of a deposit. If this is not the case, the delivery dates shall be extended accordingly. This does not apply if INNOSYSTEC is responsible for the delay.

If the CUSTOMER fails to comply with the changed dates of provision, INNOSYSTEC may

  • extend the milestone dates appropriately and/or
  • send the CUSTOMER a reminder with a reasonable deadline to perform the delayed provision.

If the CUSTOMER allows the deadline to expire, the milestone dates shall be deemed to have been reached and the corresponding payments shall become due without further request.

5.3 For compliance with the delivery dates and the transfer of risk, the agreed delivery clause according to Incoterms 2020 is decisive, alternatively when the delivery leaves the premises of INNOSYSTEC. In case of electronic delivery, the date is decisive on which the software product is made available for retrieval and when this is communicated to the CUSTOMER. Insofar as an acceptance has to take place, the acceptance date is decisive – except in the case of justified refusal of acceptance – alternatively the notification of readiness for acceptance.

5.4 If the non-observance of the delivery dates is due to force majeure, labor disputes or other events that are beyond the control of INNOSYSTEC, INNOSYSTEC is entitled to postpone the delivery for the duration of the hindrance or to terminate the contract in whole or in part because of the part that has not yet been fulfilled.

The same applies if these hindrances occur with the suppliers of INNOSYSTEC or their sub-suppliers.

INNOSYSTEC will immediately inform the CUSTOMER of the beginning and end of such circumstances.

5.5 The CUSTOMER may withdraw from the contract without setting a deadline if the entire performance becomes finally impossible for INNOSYSTEC before the transfer of risk. In addition, the CUSTOMER may withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and the CUSTOMER has a justified interest in refusing the partial delivery. If this is not the case, the CUSTOMER shall pay the contract price attributable to the partial delivery. The same applies in case of inability of INNOSYSTEC. In all other respects, Clause 14.2 applies.

If the impossibility or inability occurs during the delay in acceptance or if the CUSTOMER is solely or predominantly responsible for these circumstances, he remains obligated to counter-performance.

6 Reproduction Right and Access Protection

6.1 The CUSTOMER may reproduce the Software Product within the scope of the contractually agreed licensing, insofar as the respective reproduction is necessary for the use of the software. The necessary reproductions include the installation of the software from the original data carrier to the mass storage of the hardware used, the loading of the programme into the main memory and the execution of the programme, but not the parallel installation and parallel operation of the software in another system, such as an additional Central Processing Unit.

6.2 The CUSTOMER may also make backup copies and ordinary data backups in a reasonable number. The backup copies shall be marked as those of the released programme.

6.3 The CUSTOMER shall be obliged to prevent unauthorized access to and access to the software product as well as access identification with appropriate security measures. Its backup copies and the access identification shall be kept in a place protected against access by third parties. The CUSTOMER shall expressly draw the attention of all persons to whom it grants access to the Software Product, in particular its employees, to compliance with these General Terms and Conditions of Business and Licensing as well as the provisions of copyright law and shall oblige these persons in writing to comply with them.

6.4 Furthermore, the CUSTOMER may not make any reproductions including the release of the source code on a printer as well as copies of the complete user manual or integral parts thereof. If required, the CUSTOMER shall receive further user manuals from INNOSYSTEC.

7 Granting of Rights

7.1 Upon full payment of the fee pursuant to section 4 of these General Terms and Conditions of Business and Licensing, the CUSTOMER shall be granted a simple (non-exclusive), temporally unlimited, worldwide (with the exception of countries subject to an embargo) and non-sublicensable right to productively use the Software Product within the scope of these General Terms and Conditions of Business and Licensing.

7.2 For the use of a demo version, the CUSTOMER shall receive a simple (non-exclusive), non-transferable right of non-productive use limited in time to the period of the test period against payment of a fee, unless otherwise agreed individually.

7.3 The Software Product may only be used by a maximum number of natural persons at the same time which corresponds to the number of licences purchased by the CUSTOMER and the licence model (e.g. as a so-called named user licence or a so-called floating licence). The number of licences as well as the type and scope of use shall otherwise be determined in accordance with the purchase agreement. Furthermore, the permissible use includes the installation as well as the intended use by the CUSTOMER. Under no circumstances shall the CUSTOMER have the right to lease or otherwise sub-license the software, to reproduce it publicly or make it accessible or to make it available to third parties against payment or free of charge, e.g. by way of “application service providing” or as “software as a service”.

7.4 The CUSTOMER may only use the Software Product to carry out its own business operations. Insofar as the processing of third party data takes place within the scope of the CUSTOMER’s business operations (“Service Provider”), the processing of the CUSTOMER’s own data and / or third party data with the Software Product provided to the CUSTOMER for use shall be granted in accordance with the End User Certificate of the Federal Office of Economics and Export Control (BAFA).

7.5 The CUSTOMER is entitled to decompile the Software Product in order to be able to establish the required interoperability with other programs. The CUSTOMER shall in principle give INNOSYSTEC the opportunity in advance, within the scope of what is reasonable, to provide the information required to establish interoperability. The CUSTOMER is also entitled to edit the provided Software Product to eliminate an error.

7.6 If the CUSTOMER uses the software to an extent that exceeds the acquired rights of use qualitatively (regarding the type of permitted use) or quantitatively (regarding the number of acquired licences), he shall immediately acquire the rights of use necessary for the permitted use. If he fails to do so, INNOSYSTEC will assert the rights to which it is entitled. Notwithstanding these rights, INNOSYSTEC is free to exclude the CUSTOMER from further acquisition of Software Products, software updates, etc.

7.7 Copyright notices, serial numbers and other features serving to identify the programme may not be removed or changed from the software.

7.8 The CUSTOMER shall be entitled to pass on/sell the products provided once to a third party, giving up its own use. In this case, the CUSTOMER shall surrender to the purchaser or delete all copies made by him of the Software Product provided.

7.9 The Software Product may contain licensed software, i.e. software that was not developed by INNOSYSTEC itself. For such software, to which INNOSYSTEC has only derived rights of use and which is not open-source software (third party software), the provisions of this section 7 shall be amended and replaced by the terms of use agreed between INNOSYSTEC and its licensor to the extent that they relate to the CUSTOMER (e.g. an end user licence agreement); INNOSYSTEC shall notify and make available such terms to the CUSTOMER upon request. INNOSYSTEC’s liability to the CUSTOMER shall in any case be governed by these General Terms and Conditions of Business and Licence.

7.10 Insofar as the Software Product contains open-source software, the provisions of this section 7 shall be amended and replaced by the terms of use on which the open-source software is based. The open-source software terms of use also apply with priority insofar as these grant the CUSTOMER certain rights of use also with respect to the proprietary components due to the combination of open-source software components with proprietary components. INNOSYSTEC will notify the CUSTOMER of such terms and conditions and make them available to the CUSTOMER if this is required in accordance with the open-source software terms of use. In addition, INNOSYSTEC will provide or make available to the CUSTOMER the open-source software source code to the extent that the terms and conditions of use for the open source software provide for such release of the source code. The open-source software is distributed WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. Further details may be contained in the respective open-source terms of use. INNOSYSTEC’s liability towards the CUSTOMER shall in any case be governed by these General Terms and Conditions of Business and Licensing.

8 Information Requirements

8.1 The CUSTOMER must inform INNOSYSTEC in advance in writing about changes of his right of use or the licence fee.

8.2 The CUSTOMER is obliged to notify INNOSYSTEC in writing of the removal of the copy protection or a similar protection mechanism from the source code, whereby the CUSTOMER is obligated to give INNOSYSTEC the opportunity to eliminate the interference beforehand within a reasonable period of time. The CUSTOMER shall describe the disruption of the use of the program, which is the prerequisite for such permissible program changes, as precisely as possible. The CUSTOMER’s obligation to describe shall include a detailed description of the malfunction symptoms that occurred, the reason for the assumed malfunction and a detailed description of the programme changes made.

9 New Edition of the Software Product

The CUSTOMER’s right of use with respect to the original Software Product shall expire immediately after the start of productive use of the newly issued Software Product (e.g. as part of a subsequent improvement or maintenance). The CUSTOMER is obliged to completely remove the replaced version of the Software Product as well as all copies and partial copies thereof.

10 Obligations of the CUSTOMER

In principle, the CUSTOMER is responsible for the

  • Selection, installation and use of the Software Product and the resulting outcomes;
  • Creation and maintenance of the working environment required for the Software Product (hardware, programs and test data) insofar as this is not included in the scope of delivery of INNOSYSTEC;
  • Documents, information and data of the CUSTOMER;
  • Measures to secure data and programmes.

11 Conditions of Performance / Export Control

11.1 The CUSTOMER is aware that the Software Product may be subject to export and import restrictions. In particular, there may be licensing obligations or the use of the Software Product or associated technologies may be subject to restrictions abroad. The CUSTOMER shall observe and comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and other relevant countries. INNOSYSTEC’s performance of the contract is subject to the proviso that no obstacles due to national and international regulations of export and import law as well as no other legal regulations oppose the performance.

11.2 The CUSTOMER may only use the software within the scope of the specifications provided in the end user certificate of the Federal Office of Economics and Export (BAFA).

11.3 The CUSTOMER undertakes to provide INNOSYSTEC with all information and documents required for exports, transports and imports.

12 Obligation to test and accept

12.1 The CUSTOMER is obliged to inspect the Software Product immediately after delivery in accordance with § 377 of the German Commercial Code (HGB) and to notify INNOSYSTEC of any defects. For this purpose, he shall in particular install the Software Product immediately upon receipt and check its functionality. Defects which are detected or which are recognisable in this process shall be reported immediately upon receipt of the delivery by means of a detailed description. In doing so, the CUSTOMER must observe the information of INNOSYSTEC for problem analysis and error determination.

12.2 Insofar as acceptances have been agreed, these shall be carried out together with INNOSYSTEC or by the CUSTOMER’s personnel. After successful acceptance, the contracting parties sign the acceptance protocol. If the protocol is not signed by one party, although there are no defects preventing acceptance, the protocol shall be deemed to have been signed even without the signature of the CUSTOMER. The documents required for the acceptance test in question shall be sent to the CUSTOMER at least six weeks before the acceptance test in question.

13 Specification of the Service, Liability for Material Defects

13.1 The performance specification (see section 3.1 and 3.5) is subject to quality agreements and not to guarantees. In case of doubt, the declarations of INNOSYSTEC in connection with this contract do not contain any guarantees in the sense of an intensification of liability or the assumption of a certain liability. In case of doubt, only express written declarations of INNOSYSTEC on guarantees are authoritative.

13.2 INNOSYSTEC is liable for material defects of the Software Product exclusively according to the rules of section 12 and 13 insofar as it is not compulsory in accordance with section 15 is liable. A material defect exists if the Software Product does not have the contractually agreed quality and functionality and shows considerable deviations from this. Significant deviations are deviations which affect the stored data in such a way that a purposeful and reasonable use of essential parts of the Software Product is not possible or only possible to a very limited extent. The contractual quality and functionality of the Software Product are conclusively determined by the provisions of these General Terms and Conditions of Business and Licensing, the purchase contract and the specifications in the descriptions and documentation of the Software Product.

13.3 Claims of the CUSTOMER based on material defects are excluded:

  • in the case of only minor deviations from the agreed quality which only insignificantly impair the suitability of the Software Product for the use stipulated in the contract (so-called minor deviations);
  • in the event of defects caused by deviations from the conditions of use specified in the user documentation for the software.

13.4 The CUSTOMER’s right to claim a defect presupposes that the CUSTOMER has fulfilled the obligations to inspect and report defects in accordance with section 12.1 of the General Terms and Conditions of Business and Licensing.

13.5 INNOSYSTEC assumes no liability for material defects if the CUSTOMER has modified the Software Product in an unauthorised manner or has had it modified by third parties, in the event of an operational failure of the CUSTOMER as well as in the event of the use of hardware, software or other devices that are not suitable for the Software Product, unless the CUSTOMER proves that its aforementioned measures do not significantly hinder INNOSYSTEC’s error analysis and the expenses for the repair of errors and that the error was inherent at the time of delivery.

13.6 Supplementary performance

13.6.1 If there is a material defect, INNOSYSTEC is entitled, at its own discretion, to carry out a subsequent performance in the form of a defect removal or delivery of a defect-free new Software Product. If one or both types of subsequent performance are impossible or unreasonable, INNOSYSTEC is entitled to reject them. INNOSYSTEC can also refuse the subsequent performance as long as the CUSTOMER does not fulfil his payment obligations to an extent that corresponds to the defect-free part of the performance.

13.6.2 After receipt of the error report from the CUSTOMER, INNOSYSTEC will carry out a central customer service via the INNOSYSTEC hotline or send information and/or documents for troubleshooting or problem avoidance or corrected programme parts. If the central customer service is not successful, INNOSYSTEC will decide together with the CUSTOMER whether and how the Software Product complained about should be checked and rectified by INNOSYSTEC at the CUSTOMER’s premises within the scope of an on-site customer service.

13.6.3 The CUSTOMER shall grant INNOSYSTEC sufficient time and opportunity to perform the defect removal. For the fulfilment of the defect removal, the employees and representatives of INNOSYSTEC are granted free access to the Software Product. The CUSTOMER shall provide INNOSYSTEC with the appropriate rooms, equipment, software, documents with possible error examples and data material as well as test data, computer times and employees for information purposes to the extent necessary and shall remove its programs (including its application programs), data, media, modifications, etc., upon INNOSYSTEC’s instruction prior to the rectification of defects.

13.6.4 INNOSYSTEC is not obliged to bear the costs incurred within the scope of the subsequent performance, such as travel, transport, labour and material costs, insofar as these costs have increased due to the fact that the delivery item was taken to a place other than the original place of performance of the delivery.

13.6.5 INNOSYSTEC is entitled to have the supplementary performance carried out by third parties. Replaced Software Product becomes the property of INNOSYSTEC.

13.6.6 To the extent reasonable, the CUSTOMER shall also accept as supplementary performance a new version of the Software Product which no longer contains the defect. If the CUSTOMER does not accept a new version as supplementary performance due to impossibility / unreasonableness, the remaining rights of the CUSTOMER instead of supplementary performance shall remain unaffected.

13.6.7 The delivery of a printable correction instruction for the documentation affected by the defect is part of the supplementary performance.

13.6.8 If it turns out that there is no defect or INNOSYSTEC is not responsible for the defect within the scope of liability for defects, INNOSYSTEC can demand reimbursement of costs and expenses according to the usual hourly rates plus the necessary expenses.

13.7 In the event of a finally failed or impossible supplementary performance, culpable or unreasonable delay or serious and final refusal of supplementary performance or supplementary performance which is unreasonable for the CUSTOMER, the CUSTOMER shall be entitled, at its option, either to reduce the price or to withdraw from the contract.

13.8 Insofar as the contractual provisions contain no or deviating provisions regarding the requirements and consequences of subsequent performance, reduction and withdrawal, the statutory provisions of these rights shall apply.

14 Liability for Defects of Title

INNOSYSTEC and / or third parties are entitled to copyrights or exploitation rights that are protected by the copyright of the Software Product. A defect of title exists if the CUSTOMER could not be effectively granted the necessary rights (rights of use) for contractual use. Insofar as it is not mandatory according to section 15 INNOSYSTEC is liable in the case of defects of title in accordance with section 1313 with the exception of the following provisions:

14.1 The CUSTOMER is obliged to inform INNOSYSTEC immediately and in detail about the assertion of claims by third parties. As far as possible, INNOSYSTEC is entitled to exercise sole control over the judicial and extra-judicial defence and related measures. The CUSTOMER shall grant INNOSYSTEC the necessary support, information and authority to carry out the above measures.

14.2 If the contractual use of the Software Product is impaired by the rights of third parties, INNOSYSTEC has the right to provide a subsequent service of its choice to the extent that is reasonable for the CUSTOMER

  • either modify the Software Product in such a way that it falls outside the scope of protection or
  • the granting of a right of use that the Software Product may be used without contractually agreed restrictions and without additional costs for the CUSTOMER or
  • to provide the CUSTOMER with a new software stock in the contractually agreed scope of functions with the possibility of faultless use or
  • the replacement of the Software Product with software that can be used as contractually agreed and does not infringe any protected rights.

15 Total Liability

15.1 Legal or contractual rights and claims to which INNOSYSTEC is entitled are neither excluded nor limited.

15.2 Unless expressly regulated otherwise, INNOSYSTEC is liable, irrespective of the legal cause, exclusively according to the following provisions under section 15.2.1 to 15.2.4.

15.2.1 INNOSYSTEC is liable in accordance with the statutory provisions

  • in the case of intent;
  • in the event of gross negligence on the part of legal representatives or executive employees;
  • in case of culpable injury to life, body and health;
  • in case of defects that were fraudulently concealed
  • in the case of defects, the absence of which is guaranteed or insofar as a guarantee of quality or other guarantee has been given;
  • in the event of defects in the software product, insofar as liability exists under product liability law, for personal injury and property damage to privately used objects.

15.2.2 In accordance with the statutory provisions, INNOSYSTEC is also liable for slight negligence by its legal representatives, executive employees and other vicarious agents in the case of material contractual obligations. However, the liability is limited to the damage that is reasonably foreseeable and typical for the contract.

15.2.3 Liability for loss of data is limited to the typical recovery effort that would have been incurred in the event of regular and hazardous backup. Liability for the loss of signal data is excluded.

15.2.4 Further liability claims are excluded.

15.2.5 The statutory rules on the burden of proof shall remain unaffected by the provisions under section 15.2.

16 Statute of Limitation

16.1 The limitation period for claims and rights based on defects in the Software Product, irrespective of the legal reasons, shall be one year with the exception of section 16.3 below.

16.2 The limitation period pursuant to section 16.1 also applies to all claims for damages against INNOSYSTEC.

16.3 The limitation period pursuant to section 16.1 shall not apply in the cases of section 15.2.1 and 15.2.2. In this respect, the statutory time limits are decisive.

16.4 Unless expressly stipulated, the statutory provisions on the commencement of the limitation period, the suspension of the expiry of the limitation period, the suspension and the renewed expiry of the period shall remain unaffected.

17 Nondisclosure

All documents provided by INNOSYSTEC to the CUSTOMER, including samples, drawings, models, data, know-how as well as any other forwarded information which is obviously not intended for the public, shall be subject to confidentiality for a period of 10 years from the effective date of these General Terms and Conditions of Business and Licence. This confidential information may only be made accessible to third parties if they need to have knowledge of the confidential information to fulfil the purpose of the contract. Products developed based on or otherwise derived from INNOSYSTEC documents – such as drawings, models or other confidential information – may not be used by the CUSTOMER or passed on or offered to third parties.

18 Written Form

Amendments and supplements to these General Terms and Conditions of Business and Licensing must be made in writing. This formal requirement may only be deviated from after prior written agreement. Agreements on amendments and supplements shall be designated as such. Unless otherwise expressly stipulated in these General Terms and Conditions of Business and Licensing, the prescribed written form shall also be complied with by fax and e-mail.

19 Place of Performance, Place of Jurisdiction, Applicable Law, Severability Clause

19.1 The place of performance is the registered office of INNOSYSTEC.

19.2 For all disputes arising from the contract, the place of jurisdiction is the court responsible for the registered office of INNOSYSTEC.

19.3 All legal relations between the CUSTOMER and INNOSYSTEC shall be governed by the law of the Federal Republic of Germany, without the provisions on private international law and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

19.4 If a provision or a part of a provision of these General Terms and Conditions of Business and Licensing or other agreements concluded with INNOSYSTEC is or becomes ineffective or has a gap, the validity of the remaining provisions or agreements shall not be affected thereby. In place of the invalid or unenforceable provisions or in filling the gap, an appropriate provision shall apply which, within the scope of what is legally permissible, comes as close as possible to what the contracting parties intended or would have intended if they had considered the point.