§ 1 General, Scope

(1) These General Terms and Conditions (hereinafter referred to as „GTC“) apply to all our business relationships with our customers (hereinafter referred to as „customer/s“), especially when it involves the provision of IT services such as installation, configuration, user training, development of software, and the creation of interfaces (hereinafter collectively referred to as „IT services“). (2) The GTC, in their respective version, serve as a framework agreement also for future contracts for the provision of IT services with the same customer, without the need for us to refer to them in each individual case. (3) Our GTC apply exclusively. Deviating, contrary, or supplementary General Terms and Conditions of the customer shall only become part of the contract if we have expressly agreed to their validity. This requirement for consent applies in any case, for example, even if we begin to provide services to the customer in knowledge of the customer’s GTC without reservation. (4) Individual agreements made with the customer in specific cases (including side agreements, supplements, and amendments) shall, in any case, take precedence over these GTC. A written contract or our written confirmation is decisive for the content of such agreements. (5) Legally relevant declarations and notifications that the customer is to submit to us after the conclusion of the contract (e.g., setting deadlines, notifications of defects, declaration of withdrawal or reduction) require written form to be effective. (6) References to the applicability of statutory provisions are only of clarifying nature. Thus, even without such clarification, the statutory provisions apply, to the extent that they are not directly amended or expressly excluded in these GTC.

§ 2 Conclusion of the Contract

(1) Our offers are non-binding and without obligation. This also applies if we have provided the customer with service descriptions, documentation (e.g., user documentation, calculations, cost estimates, references to DIN standards), other product descriptions, or documents – also in electronic form. We expressly reserve the ownership and copyright rights to the documents mentioned above. (2) The customer’s order of IT services is considered a binding contractual offer. Unless otherwise specified in the order, we are entitled to accept this contract offer within thirty (30) calendar days of its receipt by us. (3) Acceptance can be declared either in writing (e.g., by order confirmation) or by starting to perform the service to the customer.

§ 3 Scope of Services

(1) The service description contained in the written offer documents, if any, which was provided to the customer before placing the order or incorporated into the contract in the same manner as these GTC (hereinafter also referred to as „service description“), is the sole basis for the services to be provided by us. The customer must carefully check the service description before placing the order. If the written offer documents do not contain a service description, the scope of services is derived from the content of the offer. (2) Technical or other standards are only to be complied with if they are expressly listed in the service description, in the version applicable at the time of contract conclusion. (3) We reserve the right to replace employees named in the contract with employees of comparable qualification and experience after prior notification to the customer. (4) The introduction and training of the customer’s personnel are carried out by agreement against separate remuneration. (5) We are entitled to use third parties as subcontractors and agents for providing the service.

§ 4 Customer’s Obligations to Cooperate in IT Services (1) The provision of the agreed IT services requires close cooperation and the participation of the customer. In particular, the customer will make decisions on the implementation and content of IT services promptly and inform us as well as promptly review any change proposals from us. (2) The customer acknowledges that fulfilling his obligations to cooperate is a fundamental prerequisite for our service provision and a significant performance obligation of the customer. (3) To fulfill his obligation to cooperate, the customer will deploy sufficiently qualified employees. In particular, the customer’s employees will unsolicitedly and promptly inform us about industry-specific or company-specific requirements and procedures and provide us with all technical or other documents and information necessary for the successful performance of the service, unsolicitedly – if necessary, in the form specified by us. (4) The customer will continuously and promptly inform us about all circumstances within his sphere that can affect our contractual obligations, especially the provision of IT services, schedules, and prices. To the extent that the approval obligation originates from his sphere, the customer is also obligated to obtain the necessary official approvals for the provision of IT project services, if required. (5) The customer will promptly inform us about the legal framework conditions originating from his sphere, to the extent that they result in specific requirements for the provision of IT services.
(6) If the customer fails to properly or timely fulfill any of their cooperation obligations, the contractually agreed execution deadlines will be extended accordingly to the delay in performance. If a lesser or greater impact on the execution deadlines is specifically proven or agreed otherwise, the extension of the execution deadlines will be adjusted according to the actual impact. We are entitled to charge additionally, at the agreed rates, for the additional effort caused by the customer’s inadequate cooperation, especially for extended deployment of our personnel or resources. (7) The application of §§ 642, 643, 645 of the German Civil Code (BGB) remains unaffected by this. In the event of early termination of the contract according to § 643 sentence 2 BGB, we are entitled to demand a portion of the remuneration corresponding to the work performed and reimbursement for expenses not included in this remuneration.

§ 5 Delivery Deadlines for IT

Services Delivery deadlines for IT services, especially project milestones, are only binding if they have been agreed upon in writing between us and the customer. Otherwise, the occurrence of default is determined according to the legal provisions. In any case, a written reminder from the customer is required.

§ 6 Changes to IT Services

(1) We reserve the right to decide on the acceptance or rejection of the customer’s requests for changes or additions to existing contracts for the provision of IT services. If we implement change requests, the agreed execution and acceptance deadlines for the originally commissioned IT services will be invalidated unless they are confirmed by us or newly set. (2) We also reserve the right to charge the customer for the effort of reviewing change and addition requests and for preparing cost estimates and change offers based on the agreed rates. (3) We continue the work based on the concluded contract until written agreement on any changes/additions is reached.

§ 7 Prices and Payment Terms

(1) Unless otherwise agreed in individual cases, our price list current at the time of contract conclusion applies, all prices are subject to statutory value-added tax. (2) The remuneration is due and payable within 10 days from the invoice date without deductions. (3) IT services are billed according to effort. If the remuneration specified in the offer is based on „daily rates“, „man-days“, „person-days“, „service days“, etc., these each correspond to eight working hours. Unless otherwise agreed, services are billed based on the daily or hourly rates according to the price list applicable at the time. We reserve the right to adjust the daily or hourly rates during the contract period with reasonable consideration of the general cost development. If changes exceed 7.5% within a year, the customer is entitled to terminate the contract. Travel expenses, expenses, and other incidental costs and outlays incurred for the provision of the contractually owed service by us will be billed additionally. (4) Upon expiration of the payment period according to the above § 7 (2), the customer is in default. The remuneration is subject to interest at the applicable statutory default interest rate during the default. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) remains unaffected towards merchants. (5) The customer has the right to offset or withhold payment only to the extent that their claim is legally established or undisputed. (6) If it becomes apparent after the conclusion of the contract that our claim to the agreed remuneration is jeopardized by the customer’s lack of ability to perform (e.g., through the application for the opening of insolvency proceedings), we are entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract according to the legal provisions (§ 321 BGB). (7) In case of the customer’s default in payment and fruitless expiry of a reasonable grace period, we are also entitled to terminate the contract with immediate effect by cancellation and, at our discretion, to demand a lump sum damage of 40% of the outstanding part of the agreed total remuneration, damages instead of performance, or reimbursement of our futile expenses according to § 284 BGB. If an effort-based remuneration is agreed between the parties, the sum of the still outstanding originally planned effort multiplied by the agreed daily rates forms the basis for calculating the lump sum damage. If we claim the lump sum damage, the customer reserves the right to prove that no damage or a lesser damage has occurred.

§ 8 Rights to Software Developments and Other Work Results

(1) Subject to § 8.6, we grant the customer a non-exclusive right of use to the individual software adaptations, additional programming, and/or other protectable work results (hereinafter collectively referred to as „work results“) specifically commissioned by him, once the payment claims from us against the customer from the related contract are fully met. We permit the customer to use the work results to the extent necessary to fulfill the contractually assumed purpose.
(2) The customer is entitled to use the work results within their business operations for their own internal business purposes. If the work results are software or software components, we provide the customer with the software in machine-readable form (object code). The source code of the software is not provided. (3) The rights granted do not extend to models, methods, utilities, program modules, program components such as „libraries“, pre-existing materials, and standard products used by us in fulfilling the contract. The use of such models, methods, etc., separate from the work results, is excluded. (4) The customer grants us a non-exclusive right to use intellectual property existing at their site free of charge, to the extent necessary for us to fulfill our tasks in providing the service. This includes, in particular, the right to use hardware and software provided by the customer. (5) If work results that are patentable or eligible for utility model protection are created during the provision of services by us, we alone have the right to file the relevant applications in our own name. In this case, the customer receives a royalty-free license for the use to the extent necessary for the contractual use of the work results owed by us. (6) For the usage rights to the open-source software „Maccoffice“ as well as for its updates, upgrades, and other modifications, exclusively the provisions of the GNU General Public License, Version 3 (hereinafter „GPL“) apply. The customer commits to comply with the provisions of the GPL.

§ 9 Acceptance of IT Services

(1) If the work results to be created by us are subject to acceptance within the meaning of § 640 BGB (German Civil Code), the following applies: (2) If the work results to be created by us are software components, the customer will provide test data in the agreed quantity and in machine-readable form as well as the expected test results in time before the start of the testing and functional examinations in the formats specified by us. We are entitled to participate in the testing and functional examinations. (3) If a work result passes the acceptance test, the customer is obliged to issue a written declaration of acceptance within ten (10) working days after the end of the acceptance test. (4) Acceptance is deemed to have been granted if the customer a) within ten (10) working days after the expiry of the period agreed for the acceptance test does not conclusively state in writing the reasons for refusing acceptance, or b) uses a work result productively for a total period of more than three months. We will explicitly point out the intended significance of this behavior to the customer at the beginning of these periods. (5) We are entitled to demand acceptance of separable partial services and intermediate results. If, among other things, the creation of a performance description, a rough or detailed concept, or a specification sheet is agreed upon, we can demand their acceptance by the customer. We can also demand the inspection and confirmation of such services that are not work performances. The last accepted document replaces the previously agreed performance descriptions.

§ 10 Customer’s Warranty Claims

(1) The rights of the customer in the event of material and legal defects shall be governed by the statutory provisions unless otherwise determined below. (2) The basis of our liability for defects primarily lies in the agreement made on the quality of the services. The descriptions of services or the respective offer contents provided to the customer before placing the order or included in the contract in the same manner as these GTC are considered as the agreement on the quality of the respective IT services. (3) If the quality has not been agreed, it shall be assessed according to legal regulations whether a defect exists or not. However, we do not assume liability for public statements made by the manufacturer or other third parties (e.g., advertising statements). (4) The customer’s claims for defects require that they have fulfilled their statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB [German Commercial Code]). If a defect becomes apparent during the inspection or later, we must be notified immediately. Immediate notification is deemed given if it occurs within two weeks; sending the notification in time is sufficient to meet the deadline. The notification must be made in writing. Regardless of this obligation to inspect and give notice of defects, the customer must notify us of obvious defects (including wrong and short delivery) within two weeks from delivery; sending the defect notification in time is sufficient to meet the deadline. The notification must be made in writing. If the customer fails to make the notification of defects as specified above, our liability for the defect not notified is excluded.
(5) If the service provided is defective, we can initially choose whether to rectify the defect (repair) or deliver a defect-free service (replacement). Our right to refuse the chosen method of rectification under legal conditions remains unaffected. If the owed service involves the delivery or creation of software and this is reasonable for the customer, we are entitled to rectify the defect by providing the customer with a new version of the software (e.g., „update“, „maintenance release/patch“) that no longer contains or rectifies the reported defect. (6) If rectification fails within a reasonable period, the customer must set us another reasonable period for rectification, provided that setting such a period is reasonable for the customer and we do not definitively refuse rectification. Only after the unsuccessful expiry of this additional period can the customer withdraw from the contract or reduce the payment. After the unsuccessful expiry of this period, the customer must declare within a reasonable time whether they still demand rectification or will assert their aforementioned rights. However, there is no right of withdrawal in the case of a minor defect. (7) The customer’s claims for damages or compensation for futile expenses only exist according to § 11, and are otherwise excluded. (8) The customer will provide all documents and information, IT facilities, premises, and telecommunications possibilities required for error analysis and rectification. We are entitled to request that the customer’s personnel install sent program parts with corrections („bug fixes“). The customer’s employees will provide us with comprehensive information for defect detection – if necessary, orally. (9) We are not obligated to warranty for software errors if these occur after changes in the operating and usage conditions at the customer’s, due to installation and operating errors by the customer, as long as these are not based on errors in the user manual, after interventions in the software by the customer or third parties commissioned by them, such as changes, adjustments, connections with other software and/or due to contract-violating usage, unless the customer proves that the errors were already present at the time of software handover or have no causal connection with the aforementioned events. (10) In case of a breach of duty that does not consist of a defect, the customer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination for the customer (especially according to §§ 651, 649 BGB [German Civil Code]) is excluded. Otherwise, the legal requirements and consequences apply. (11) Notwithstanding the customer’s foregoing rights, for the provision and use of the open-source software „Maccoffice“ and its updates, upgrades, and other modifications, the warranty and liability exclusion according to sections 15 and 16 of the GPL applies.

§ 11 Liability

(1) Unless otherwise results from these GTC including the following provisions, we are liable for breach of contractual and non-contractual obligations according to the relevant legal provisions. (2) We are liable for damages – for any legal reason whatsoever – in the case of intent and gross negligence. Furthermore, we are liable for simple negligence a) for damages resulting from injury to life, body, or health, b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfillment enables the proper execution of the contract in the first place and on the compliance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage. This limitation of liability does not apply if we have maliciously concealed a defect or assumed a guarantee for the quality of the services. The same applies to claims of the customer according to the Product Liability Act. (3) The obligation of the customer to mitigate and prevent damage, especially in the case of data or data loss, remains unaffected. The loss of data is not compensable, provided that no regular backup copies were made at least once a day on separate data carriers.

§ 12 Limitation

(1) The mutual claims of the contractual parties shall become statute-barred according to the statutory provisions, unless otherwise specified below. (2) The limitation period for warranty claims for material and legal defects is one year from delivery or, if acceptance is required by law, one year from acceptance. The shortening of the limitation period does not apply in the case of intent on our part, malicious concealment of a defect, and personal injury. (3) For defects in repair services, circumventions, or new deliveries as part of subsequent performance, the limitation period also ends at the time specified above in § 14 (2). However, the limitation period is suspended as long as we are examining the presence of a defect or providing subsequent performance, in agreement with the customer, until we inform the customer of the result of the examination, declare the subsequent performance to be completed, or refuse further subsequent performance. The limitation period comes into effect at the earliest three months after the end of the suspension.
(4) For all other claims of the customer for damages or compensation for futile expenditures in the context of contractual and non-contractual liability, a limitation period of one year also applies. This does not apply to our liability for intent, personal injuries, or according to the Product Liability Act. The limitation period according to the preceding sentence starts with the time defined in § 199 Abs. 1 BGB (German Civil Code). It occurs at the latest five years after the claim arises.

§ 13 Confidentiality, Data Protection

(1) Both we and the customer are obligated to keep business and trade secrets as well as other confidential and protected information and documents of the other party, which are obtained in connection with the fulfillment of the contract and are marked as „confidential“ or similar or are obviously of a confidential nature, secret. The parties will not use such information and documents for their own or others‘ purposes, but only for fulfilling the task within the scope of service provision. They will impose a similar obligation on employees and third parties involved in the project. (2) The obligation of confidentiality does not apply to information that a) is or was publicly known, b) was developed independently without using confidential information of the other party, c) was obtained from third parties not bound by a duty of confidentiality, or d) was already in possession of the party without a duty of confidentiality. Further legal obligations of confidentiality remain unaffected. (3) Both we and the customer will observe the relevant regulations on data protection and maintain professional and banking secrecy, and will only employ employees who are accordingly obligated to fulfill the service.

§ 14 Choice of Law and Jurisdiction

(1) The law of the Federal Republic of Germany applies to these GTC and all legal relationships between us and the customer. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The place of fulfillment and jurisdiction for all disputes is Altenburg, Germany.

§ 15 Final Provisions

(1) Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, a provision that comes closest to the economic purpose of the invalid provision shall be deemed agreed. The same applies in the event that the GTC are found to be incomplete. (2) The assignment of rights from the contractual relationships by the customer without our prior consent is excluded. (3) We are entitled to use the company and brands of the customer as a reference for marketing purposes.