August 1st, 2018
August 1st, 2018
1.1 Unless otherwise agreed, the remuneration shall be calculated on a time and material basis at the contractor's generally applicable prices at the time of conclusion of the contract. Remunerations are basically net prices plus statutory value-added tax. The contractor can bill monthly. If services are remunerated on a time and material basis, the contractor shall document the nature and duration of the activities and submit this documentation together with the invoice.
1.2 All invoices shall in principle be paid no later than 14 calendar days after receipt free paying agent without deduction.
1.3 The client may only offset or retain payments due to defects insofar as he is actually entitled to payment claims due to material defects or defects of title of the service. Due to other warranty claims, the client may retain payments only to a proportionate extent taking into account the defect. Section 4.1 shall apply accordingly. The client has no right of retention if his claim for defects has become statute-barred. In all other respects, the client may only offset or exercise a retention with undisputed or legally established claims.
1.4 The contractor reserves the ownership and rights to be granted to the services until the payment owed has been made in full; justified retentions for defects in accordance with section 1.3 sentence 2 are taken into account. Furthermore, the contractor reserves the right of ownership until all claims arising from the business relationship with the client have been fulfilled. The contractor is entitled to prohibit the client from continuing to use the services for the duration of a delay in payment. This right can only be exercised by the contractor for a reasonable period of time, usually a maximum of 6 months. This does not constitute a withdrawal from the contract. § 449 para. 2 BGB remains unaffected. If the client or his client returns the services, the acceptance of the services does not constitute a withdrawal of the contractor, unless he has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the contractor. The client may neither pledge nor assign by way of security objects subject to retention of title. The client is only permitted to resell the goods as a reseller in the ordinary course of business on the condition that the contractor has effectively assigned to the client his claims against his clients in connection with the resale and that the client transfers ownership to his client’s subject to payment. By concluding this contract, the client assigns his future claims in connection with such sales against his clients to the contractor by way of security, who hereby accepts this assignment. If the value of the Contractor's security interests exceeds the amount of the secured claims by more than 20%, the Contractor shall release a corresponding share of the security interests at the Client's request.
1.5 The client is obliged to impose the contractually agreed restrictions on the recipient in the event of an admissible transfer of rights of use for deliveries and services.
1.6 If the client does not settle a due claim in full or in part on the contractual payment date, the contractor may revoke agreed payment targets for all claims. The contractor is also entitled to provide further services only against advance payment or against security by means of a performance guarantee from a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective billing period or - in the case of one-off payments - their remuneration.
1.7 If the client is economically unable to fulfil his obligations towards the contractor, the contractor may terminate existing exchange contracts with the client without notice by withdrawing from the contract or by giving notice of termination of the contract, even if the client files for insolvency. § 321 BGB and § 112 Ins0 remain unaffected. The Client shall inform the Contractor in writing of any imminent insolvency at an early stage.
1.8 Fixed performance dates are binding if they have been agreed in writing. The agreement of a fixed performance date is subject to the proviso that the contractor receives the services of his respective upstream contractors in good time and in accordance with the contract.
2.1 The client and the contractor each designate a responsible contact person. Unless otherwise agreed, communication between the client and the contractor takes place via these contact persons. The contact persons must immediately bring about all decisions relating to the execution of the contract. The decisions shall be documented in a binding manner.
2.2 The client is obliged to support the contractor as far as necessary and to create all necessary conditions for the proper execution of the order in his business sphere. In particular, he will provide the necessary information and, if possible, enable remote access to the client's system. If remote access is not possible for security reasons or other reasons, the affected periods shall be extended appropriately; the contracting parties shall agree an appropriate regulation for further effects. The Client shall also ensure that competent personnel are available to support the Contractor. Insofar as it is agreed in the contract that services can be provided on site at the client's, the client shall, at the request of the contractor, provide sufficient workstations and work equipment free of charge.
2.3 Unless otherwise agreed, the client shall ensure proper data backup and failure precautions for data and components (such as hardware, software) that are appropriate to their nature and significance.
2.4 The client shall immediately report defects in writing in a comprehensible and detailed form, stating all information useful for the identification and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be indicated. Unless otherwise agreed, the relevant forms and procedures of the contractor will be used for this purpose.
2.5 The client shall support the contractor reasonably upon request in examining and asserting claims against other parties involved in connection with the provision of services. This applies in particular to the contractor's right of recourse against upstream contractors.
2.6 The contracting parties are obliged to maintain secrecy regarding business and trade secrets as well as other information designated as confidential which becomes known in connection with the execution of the contract. The disclosure of such information to persons who are not involved in the conclusion, execution or performance of the contract may only take place with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information becomes known, but not before its termination in the case of continuing obligations. The contracting parties shall also impose these obligations on their employees and any third parties employed.
2.7 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. With this type of communication, you will therefore not assert any claims based on the absence of encryption, unless encryption has been agreed beforehand.
3.1 If a cause for which the contractor is not responsible, including strike or lockout, impairs adherence to the deadline ("disorder"), the deadlines shall be postponed by the duration of the disorder, if necessary, including an appropriate restart phase. A contractual partner shall inform the other contractual partner immediately of the cause of a disturbance that has occurred in his area and of the duration of the postponement.
3.2 If the expense increases due to a disorder, the contractor can also demand payment for the additional expense, unless the client is not responsible for the disorder and its cause lies outside his area of responsibility.
3.3 If the client can withdraw from the contract due to improper performance by the contractor and / or claim damages instead of performance or asserts such, the client shall declare in writing at the request of the contractor within a reasonably set period of time whether he asserts these rights or continues to desire the performance. In the event of rescission, the client must reimburse the contractor for the value of previously existing usage options; the same applies to deterioration due to intended use. If the contractor is in default of performance, the client shall be entitled to assert claims for damages and reimbursement of expenses in accordance with the statutory provisions.
4.1 The contractor guarantees the contractually owed quality of the services. There shall be no claims for material defects in the event of only an insignificant deviation between the Contractor's services and the contractual quality.
Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible or otherwise verifiable software errors by the client or in the event of damage resulting from special external influences not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the client or third parties, unless this does not impede the analysis and rectification of a material defect. Clause 6 shall apply in addition to claims for damages and reimbursement of expenses.
4.2 The limitation period for material defect claims shall be one year from the start of the statutory limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected. The same applies insofar as the law prescribes longer periods in accordance with § 438 Para. 1 No. 2 or § 634a Para. 1 No. 2 BGB, in the case of a premeditated or grossly negligent breach of duty on the part of the contractor, in the case of fraudulent concealment of a defect as well as in cases of injury to life, limb or health and for claims arising from the Product Liability Act. The processing of a notification of material defects by the client by the contractor only leads to the suspension of the statute of limitations insofar as the legal prerequisites for this exist. A restart of the statute of limitations does not occur as a result. A subsequent performance (new delivery or subsequent improvement) can only have an influence on the limitation period of the defect triggering the subsequent performance.
4.3 The contractor may demand reimbursement of his expenses, provided that
a) he takes action on the basis of a notification without a defect being present, unless the client could not reasonably be expected to recognize that there was no defect, or
b) a reported malfunction is not reproducible or otherwise demonstrable by the client as a defect, or
c) additional expenditure is incurred due to improper fulfilment of the client's obligations (see also Sections 2.2, 2.3, 2.4 and 5.2).
5.1 The contractor is only liable for infringements of third-party rights by his service if the service is used in accordance with the contract and in particular in the contractually agreed, otherwise unchanged environment. The contractor is liable for violations of third-party rights only within the European Union and the European Economic Area as well as at the place of contractual use of the service. Section 4.1 sentence 1 shall apply accordingly.
5.2 If a third party asserts to the client that a service provided by the contractor violates his rights, the client shall notify the contractor immediately. The contractor and, if applicable, its contractors are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permitted. The client is not entitled to acknowledge claims of third parties before he has given the contractor a reasonable opportunity to defend the rights of third parties in any other way.
5.3 If third party rights are infringed by a service of the contractor, the contractor shall, at his own discretion and expense, make the following claims against the contractor
a) provide the client with the right to use the service or
b) the performance is free from infringement of rights or
c) take back the service with reimbursement of the remuneration paid by the client (less an appropriate compensation for use), if the contractor cannot achieve any other remedy with reasonable effort.
The interests of the client are taken into account appropriately.
5.4 Claims of the client due to defects of title shall become statute-barred in accordance with Clause 4.2. Clause 6 shall apply additionally to claims for damages and reimbursement of expenses of the client, Clause 4.3 shall apply correspondingly to additional expenses of the contractor.
6.1 The contractor is liable to the client at all times
a) for damages caused intentionally or grossly negligently by him or his legal representatives or vicarious agents,
b) in accordance with the Product Liability Act and
c) for damages resulting from injury to life, body or health for which the contractor, its legal representatives or vicarious agents are responsible.
6.2 The contractor is not liable for slight negligence unless he has violated an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place or the violation of which endangers the achievement of the purpose of the contract and on the observance of which the client may regularly rely. This liability is limited to the contract-typical and foreseeable damage in the case of material damage and pecuniary loss. This also applies to lost profits and missed savings. Liability for other remote consequential damages is excluded. For an individual case of damage, liability is limited to the contract value, for ongoing remuneration to the amount of remuneration per contract year. Section 4.2 shall apply mutatis mutandis to the limitation period. The contracting parties may agree in writing on further liability at the time of conclusion of the contract, usually against separate remuneration. Priority shall be given to an individually agreed liability sum. Liability pursuant to Clause 6.1 shall remain unaffected by this paragraph. In addition, and with priority the liability of the contractor due to slight negligence arising from the respective contract and its execution for damages and reimbursement of expenses - irrespective of the legal basis - shall be limited in total to the percentage of the remuneration agreed upon at the time of conclusion of the contract agreed upon in this contract. Liability pursuant to Section 6.1 b) shall remain unaffected by this paragraph.
6.3 The contractor is only liable for damages arising from a guarantee declaration if this has been expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in Clause 6.2.
6.4 If data or components (e.g. hardware, software) need to be restored, the contractor shall only be liable for the expenditure required for the restoration with proper data backup and failure precautions by the client. In the event of slight negligence on the part of the contractor, this liability shall only arise if the client has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This does not apply if this is agreed as a service of the contractor.
6.5 Clauses 6.1 to 6.4 shall apply mutatis mutandis to claims for reimbursement of expenses and other liability claims of the client against the contractor. Sections 3.3 and 3.4 shall remain unaffected.
The client will conclude with the contractor data protection agreements necessary for the handling of personal data.
8.1 The client shall observe the import and export regulations applicable to the deliveries or services on his own responsibility, in particular those of the USA. In the case of cross-border delivery or service, the client shall bear any customs duties, fees and other charges incurred. The client will handle legal or official proceedings in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.
8.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
8.3 The contractor provides his services on the basis of his General Terms and Conditions. The general terms and conditions of the client shall not apply, even if the contractor has not expressly objected to them. The acceptance of the services by the client shall be deemed acceptance of the general terms and conditions of the contractor waiving the general terms and conditions of the client. Other conditions are only binding if the contractor has accepted them in writing; in addition, the general terms and conditions of the contractor apply.
8.4 Amendments and supplements to this contract shall only be agreed in writing. If written form has been agreed (e.g. for cancellations, rescission), text form is not sufficient.
8.5 The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law is the registered office of the contractor. The contractor may also sue the client at his place of business.