General Terms and Conditions of Business of ipro Consulting GmbH for Services - hereinafter referred to as the Contractor

Transcription

1 General Terms and Conditions of Business of ipro Consulting GmbH for Services - hereinafter referred to as the Contractor 1. Scope of applicability 1.1 The following terms and conditions apply exclusively for service contracts on consulting, planning, training or programming work and other services (except for hotline and software maintenance) of the Contractor with its customers For differing or supplementary arrangements, particularly contradictory general terms and conditions of business, the explicit written consent of the Contractor will be necessary. All orders and commissions and any special warranties shall require written confirmation by the Contractor in order to be effective. This requirement of written form can only be waived through a written arrangement. 2. Project and service description 2.1 The parties shall set down the description of the project and the service description in the service contract. 2.2 The service description shall contain the type, scope and specification of the services to be performed by the Contractor and information on the type and scope of the items to be provided by the customer. 3. The performance of the contract 3.1 The Contractor s services shall be aimed at supporting the customer in the implementation of its project (section 2.1). The customer shall bear the responsibility for the course of the overall project and for its results. 3.2 Within the framework of the service contract the Contractor shall determine and be responsible for the manner in which its services are carried out. The customer shall not have any rights to issue instructions to the Contractor or its employees, assistants or vicarious agents. However, the Contractor shall make every effort to take the customer s wishes into account. 4. Deadlines and time limits 4.1 Deadlines and time limits are binding if they have been designated as such in writing by the customer and the Contractor in an individual case, otherwise all deadlines and time limits are non- binding. 4.2 If a failure to comply with a deadline or time limit is attributable to an unforeseeable event which lies outside the Contractor s sphere of influence, the deadline/time limit shall be extended by a reasonable period. In the event of a delay by the Contractor, the customer shall have the right, after the ineffective lapse of a reasonable additional time limit set for the Contractor in writing, to terminate the relevant contract without notice, to the exclusion of all other rights, with the exception of the rights under section 4.3. Any partial performances which have been rendered by the Contractor under the relevant contract up to the time of termination shall be paid for by the customer in full. 4.3 Any claims for compensation of the customer due to late deliveries or services shall be limited to 0.5% per completed week for the period of the delay, and a maximum of 5% of the order value affected by the delay. This shall cover all claims for compensation stemming from delay or impossibility. This shall not apply in the event of mandatory liability in cases of wilful misconduct or gross negligence.

2 5. The parties contact persons The parties shall nominate their contact persons and substitutes for issues related to their cooperation in the service contract. 6. The customer s cooperation obligations 6.1 The customer shall ensure that all the necessary cooperative acts by it or its vicarious agents are performed in good time, to the necessary extent and free of charge for the Contractor. 6.2 The customer s cooperation obligations and its provision obligations (section 2.2) are key obligations of the customer. 6.3 The customer shall provide the Contractor s employees with all the necessary support in their work in its company. 6.4 The customer shall ensure, to the benefit of the employees of the Contractor working with the items provided by it, that the items provided comply with health and safety regulations. 6.5 Data carriers provided by the customer must be free of defects in terms of content and technically. If they are not, the customer shall compensate the Contractor for any losses that arise from the use of those data carriers and indemnify against all third- party claims. 6.6 The customer shall retain copies of all documents and data carriers provided to the Contractor, which the Contractor will be able to access at any time free of charge. 6.7 After the provision of the services, the Contractor shall have the right to destroy the documents provided to it by the customer. At the customer s request, the Contractor shall send the documents back. 6.8 If the customer fails to fulfil a necessary cooperation obligation or fails to fulfil it in good time or in the agreed manner, the resulting consequences (e.g. delays or additional expenses) shall be borne by the customer. 6.9 Any further obligations and responsibilities of the customer shall be regulated in the service contract. 7. Service record The Contractor shall draw up a record of the services provided by it in a form agreed with the customer and attach it to its respective invoice. 8. Prices and payment terms 8.1 The remuneration for the services covered by the service contract shall be specified in the service contract. If the contract contains no provisions in that respect, remuneration shall be paid on a time and materials basis according to the Contractor s price- list/fee regulation effective at the moment when the services are provided. 8.2 Travel and other expenses which the Contractor must pay its employees engaged in connection with the service contract in accordance with the current travel expenses regulations of the Contractor shall be passed on to the customer after the deduction of input tax. Travel time shall be paid at 50% of the hourly rate effective as at the moment when the service is provided according to the Contractor s price- list/fee regulation. 8.3 Statutory VAT and any other statutory charges shall be charged additionally in the amount of the rates effective at the moment when the invoice is issued. 8.4 The remuneration and the travel and other expenses will be invoiced in arrears each calendar month. 8.5 Invoices shall be due and payable within 10 days after the receipt of the invoice, without any deductions.

3 8.6 The Contractor shall have the right to charge interest in the amount of 3% over the current discount rate of the German Central Bank (Bundesbank) in commercial trading from the due date or in the event of a payment default by the customer. 9. Usage right The customer shall be granted a non- exclusive, non- transferable usage right to the contractual services. It shall only be permitted to use the outcomes of all the services provided by the Contractor under the service contract for its own internal company purposes and shall not be permitted to pass them on to third parties without the prior written consent of the Contractor. All further usage rights shall remain with the Contractor. 10. The performance of the services The Contractor shall provide the services to be performed by it according to the principles of correct professional practice, in accordance with the scope agreed in the service contract and in the period agreed with the customer. 11. Liability The following liability provisions apply for the Contractor s liability and for the own liability of its employees, vicarious agents and assistants, irrespective of the legal basis: 11.1 The Contractor shall be liable for any personal injury or property damage caused by it due to minor negligence for up to 2,000,000, for basic environmental cover for up to 2,000,000 and for up to 100,000 for rental property damage to buildings or rooms due to fire, explosions or mains water or wastewater damage, for each loss event and double that per year. The Contractor shall not be liable for the restoration of data, unless it caused the destruction thereof through gross negligence or intentionally and the customer ensured that that data can be reconstructed at reasonable expense from data material kept available in machine- readable form The above limitations of liability do not apply insofar as the Contractor is subject to mandatory statutory liability, for example under the German Product Liability Act (Produkthaftungsgesetz) The customer must promptly report to the Contractor in writing or have recorded by the Contractor any damage or losses for which the Contractor is liable If any claims for compensation exist against the Contractor or its employees, assistants or vicarious agents due to minor negligence, they shall expire by time limitation within one year from the moment when the contractual performance should have been rendered. 12. Confidentiality 12.1 The parties mutually undertake to treat confidentially any information made available by the other party under the service contract and any information that they obtain in connection with the cooperation on matters (e.g. technical, commercial or organisational) of the other party and refrain from utilising or using it or making it available to third parties, both during the term of the contract and after the end thereof, without the prior written consent of the affected party. Use of that information shall be limited exclusively to use for the purpose of performing this contract This non- disclosure obligation does not apply to information a) that the other party demonstrably lawfully received or receives from third parties or b) that was already generally known upon the conclusion of the contract or subsequently became generally known without any breach of these obligations The parties shall obligate their employees, vicarious agents and assistants accordingly The obligations described above shall continue to exist for both parties after the termination of the contract, for a further five years after the end of its term.

4 12.5 The Contractor shall have the right to process or have processed by third parties the personal data entrusted to it in compliance with the data protection laws, within the limits of the objective of the service contract. The Contractor shall process personal data of the customer in accordance with its written instruction pursuant to Article 11 of the German Data Protection Act (Bundesdatenschutzgesetz BDSG) The employees of the Contractor are subject to an obligation in accordance with Article 5 BDSG. 13. Loyalty obligation The parties undertake to be loyal towards one another. During the performance of the contract and for 12 months thereafter the customer shall refrain from either appointing employees of the Contractor in its company or employing them in another form in its own or a dependent company without the Contractor s explicit consent. 14. The end/termination of the contract 14.1 In the event of early termination of the contract for reasons attributable to the Contractor, the remuneration for the services provided up to that point shall be paid according to the prices/hourly or daily rates agreed in the service contract or in accordance with section 8 plus additional costs and expenses. If the early termination of the contract is not attributable to the Contractor, the Contractor shall receive, on top of the remuneration referred to in sentence 1, at least 35% of the remuneration agreed for the services which have not yet been performed. The Contractor shall have the right to provide proof that as a result of not performing further services it saved less than 65% of the value of the remaining remuneration in expenses and therefore can claim remuneration in excess of the minimum remuneration of 35% in accordance with sentence Service contracts without a defined contractual term can be terminated by either party, giving three months notice, effective at the end of each quarter Any notice of termination must be sent by registered letter. 15. Miscellaneous 15.1 Differing or supplementary terms and conditions, additional agreements or amendments to these terms and conditions or changes to the service description shall only apply if they are agreed in writing The contract concluded according to these terms and conditions shall otherwise remain binding even if individual points are legally ineffective. Ineffective provisions shall be replaced by the parties with effective ones which come as close as possible to the intended purpose. The same shall apply in the event of an unintended gap/omission The customer is only permitted to transfer rights or obligations stemming from the contract with the prior written consent of the Contractor The customer will only be able to set off against claims of the Contractor or exercise a right of retention if its counterclaim is undisputed or legally binding The place of performance for the agreed performances shall be specified in the service contract If the customer is a trader, the place of jurisdiction for all disputes stemming from or related to this contract is the Contractor s registered office.

5 General Terms and Conditions of Business of ipro Consulting GmbH for Software - hereinafter referred to as the Contractor - Preamble The software of ipro Consulting GmbH is copyright protected. Impermissible reproduction or use of that software or a part thereof is punishable, will be prosecuted under civil or criminal law and may lead to severe penalties or claims for compensation. Intrexx is a registered trademark of United Planet GmbH, Freiburg. Microsoft, Visual Basic, the Visual Basic logo, Windows, NT, Word and Excel are either registered trademarks or trademarks of the Microsoft Corporation in the United States (USA) and/or other countries. 1. Scope of applicability 1.1 The following terms and conditions apply for all contracts of the Contractor with its customers which include the provision of ipro software licences or the performance of hotline and software maintenance services with regard to the ipro software products. 1.2 For differing or supplementary arrangements, particularly contradictory general terms and conditions of business, the explicit written consent of the Contractor will be necessary. All orders and commissions and any special warranties shall require written confirmation by the Contractor in order to be effective. This requirement of written form can only be waived through a written arrangement. 2. The provision and use of ipro software licenses 2.1 Through the conclusion of a licence agreement with the Contractor the customer (licensee) acquires usage rights to software products of ipro Consulting GmbH. 2.2 The customer shall receive the software on a machine- readable carrier along with documentation. It has the right to use the programme. Use is any permanent or temporary full or partial reproduction (copying) of the programme through storage, loading, running or displaying for the purposes of executing the programme and processing of data contained in the programme by the computer. 2.3 The customer has the right to create a back- up copy of the programme if this is necessary to secure the future use thereof. Any further use or utilisation is excluded. 3. Software maintenance for acquired ipro software licenses The Contractor offers the customer software maintenance services for ipro software products, the scope of which is regulated in the individual contract. 4. The customer s contact person (administrator) 4.1 For all hotline and software maintenance services, the customer shall nominate for the Contractor a contact person (administrator) who is trained in handling the product. That contact person or a substitute nominated by the customer for the event that he/she is not available shall alone have the right to take advantage of the hotline support services of the Contractor. 4.2 Before taking advantage of the hotline support, the contact person shall attempt to solve the problem which has arisen or at least limit or specify it in greater detail through its own action, with the aid of the documentation provided with the software. 5. The service scope and exclusion of the hotline 5.1 The Contractor shall advise and support the customer via the hotline for the following issues: reporting application errors and problems, and questions regarding the operation of the software, the use of the software or software functions.

6 5.2 The hotline does not replace training on the operation, use or functions of the licensed material. 5.3 Expenses incurred by the Contractor on the hotline which arise due to wilful misconduct or gross negligence of the customer are not a part of the hotline services. 5.4 The Contractor shall have the right (in consultation with the customer) to pass on issues which are not subject to this arrangement to other parties who can provide assistance regarding those issues. If the customer orders and makes use of services from those parties, the charging of those services will be separately regulated. 5.5 The scope of the hotline support does not include, in particular, services for the purpose of troubleshooting in the event of errors in the licensed material. Those services shall be provided as part of the software maintenance. 5.6 The deployment of employees of the Contractor on site at the customer is not included in the scope of the hotline support. If the customer would like a deployment on site, it shall be separately agreed. 6. The term of the contract and maintenance fees 6. A software maintenance contract for the software can be concluded between the Contractor and the customer, which must be in writing. The software maintenance contract, which will also include the hotline, shall have a term of 12 months and shall be extended automatically by periods of a further 12 months unless it is terminated by one of the two parties three months before it expires. The notice of termination must be in writing. The contract can be terminated by one of the parties for the first time after a period of 12 months. 6.2 The software maintenance fees agreed in the individual contract shall be payable in advance for 12 months, for the first time on the first day of the month following the delivery of the licensed material. All invoices shall be payable within 10 calendar days from the invoice date without any deductions. 7. Warranty 7.1 Please note that according to the current state of the art of technology it is not possible to develop computer programmes which are free of errors for all conditions of use. The Contractor therefore warrants that the programme will be usable in the meaning of the description issued by it and effective upon purchase. An insignificant reduction in usability shall be disregarded. If it turns out that the software is unusable in this sense within a warranty period of six months, beginning upon the handover of the data carrier, the Contractor shall be obliged to ensure usability within a reasonable period not exceeding four weeks. If usability cannot be ensured within that time limit, the customer shall have the right, according to its choice, to a price reduction or repayment against the return of the data carriers and documentation it has received. 7.2 The Contractor warrants that the module will be correctly recorded on a tested data carrier. If it turns out that the data carrier is defective, within a six- month warranty period beginning upon the handover of the data carrier it shall provide the customer with a replacement data carrier free of charge. 7.3 No further warranty obligation exists. In particular, there is no warranty for the programme package meeting the customer s specific requirements. The customer alone shall be responsible for the selection, installation and use and the intended outcomes thereof. 8. Limitation of liability 8.1 The Contractor shall be liable, irrespective of the legal basis, for any losses caused by a culpable breach of a key contractual obligation for which it is responsible, in a manner which jeopardises the achievement of the objective of the contract. The liability is limited to the losses under a typical contract which the Contractor could expect upon the conclusion of the

7 contract on the basis of the circumstances known to it at that time, and the liability shall not on any account exceed 1,000. Any liability for lost profits, lost savings, indirect losses or consequential losses is excluded. 8.2 The limitations of liability referred to paragraph 9.1 do not apply for losses which result from wilful misconduct, gross negligence or the absence of assured properties, or for possible claims on the basis of the German Product Liability Act (Produkthaftungsgesetz). 9. Miscellaneous 9.1 Differing or supplementary terms and conditions, additional agreements or amendments to these terms and conditions shall only apply if they are agreed in writing. 9.2 The contract concluded in accordance with these terms and conditions shall remain binding even if individual points in its other parts are legally ineffective. Ineffective provisions shall be replaced by the parties with effective ones which come as close as possible to what the parties intended. The same shall apply in the event of an unintended gap/omission in the contract. 9.3 The customer is only permitted to transfer the rights or obligations stemming from the contract with the prior written consent of the Contractor. 9.4 The customer will only be able to set off against claims of the Contractor or exercise a right of retention if its counterclaim is undisputed or legally binding. 9.5 If the customer is a trader, the place of jurisdiction for all disputes stemming from or related to this contract is the Contractor s registered office. (October 1, 2015)