Terms and Conditions
§ 1 Type and Scope of Service
Contractor shall provide the services as agreed in the contract. Customer shall retain the responsibility for the respective project itself and the resulting outcome. Customer shall be responsible for correct and proper data security. Any services provided are not rendered within the scope of the contract on the basis of a work contract performance (werkvertragliche Leistungen). Contractor shall provide the services in accordance with the state of the art at the time of the contract formation and shall employ personnel for this purpose who are qualified to provide the agreed services.
§ 2 Co-Operation of Contractual Parties
The responsible contacts specified in the contract shall be the exclusive contact persons for the contractual parties. Customer shall communicate requests with regard to the service to be provided exclusively to the responsible contact appointed by Contractor and shall not give directions to any of the other persons used for the services by Contractor. Persons used for the services by Contractor shall not be deemed to enter into any employment relationship with Customer even if such render any performance at the premises of Customer.
§ 3 Substitution of Personnel
Contractor is entitled to substitute any person used in the performance of the contract with other persons. When selecting such persons, Contractor shall take into consideration the best interest of Customer.
§ 4 Rights to Physical Results of the Service
Contractor shall grant Customer the non-exclusive, permanent, irrevocable and non-transferable right to use the physical results of performance insofar as such comes from the purpose and scope of application. Such rights shall extend to the agreed intermediate results, training materials and accessories. The transfer of rights of use shall take place at the earliest upon full payment of the remuneration. Any deviation from the above provisions for use shall require written agreement by way of contract.
§ 5 Participation by Customer
Customer shall provide reasonable assistance to Contractor in its provision of services under the contract. Among other things, Customer shall make available to Contractor the necessary personnel as well as the necessary information and documentation in a full and timely manner, and if any work is to be performed at the premises of the Customer, Customer shall provide the necessary rooms and technical equipment. Any duty of support beyond the above shall be separately agreed upon in the contract.
§ 6 Remuneration
Except as otherwise agreed, the sole consideration for the time spent in performing the services under the contract shall be the remuneration agreed upon in the contract. Waiting times of the Contractor for which Customer is responsible shall be remunerated in the same matter as working hours.
Except as otherwise agreed, Contractor shall issue its invoices on a monthly basis for the performance provided. Insofar as an invoice is accompanied by a performance report, such performance report shall be deemed to have been approved if the Customer does not raise any objections thereto within a period of 14 calendar days of receipt.
Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual provisions.
§ 7 Non-conforming Performance
If the service is not performed in accordance with the contract or is not performed in a correct manner and if the responsibility for such non-conforming performance is with the Contractor, the latter shall provide the service in accordance with the contract within a reasonable period of time at no additional charge to Customer. The above shall only apply if Customer issues a notification of default without delay, but in no case later than 2 weeks after Customer has become aware of such. If Contractor, for reasons for which Contractor is responsible, materially fails to provide performance within a reasonable period expressly defined for such purpose by Customer, Customer shall be entitled to terminate the contract.
In such an event, Contractor shall be entitled to remuneration for any services delivered under the contract until the effective date of the termination. No remuneration shall be due for any services which Customer can demonstrate within 4 weeks of giving notice of termination to be unsuitable for use by Customer now or in future.
Travelling times, travel expenses, and ancillary expenses shall be remunerated in accordance with the contractual terms and conditions.
Any further rights on the part of Customer to claim for non-conforming performance are excluded. This exclusion shall not apply in the case of liability for willful acts or gross negligence, or for injury to life, limb or health.
§ 8 Other liability
Clause 7 herein above shall cover the entire liability for quality-related non-conformance with performance requirements.
Otherwise, Contractor shall be liable for damage or less for which Contractor is responsible as follows:
In the event of slight negligence Contractor shall be liable only if Contractor is in material breach of contract or in the event of default or impossibility to perform. In such cases liability shall be restricted to typical, foreseeable, damage and shall be limited to Euro 500,000 per claim event, but not exceeding Euro 1 million per contract, or a maximum of 10% of the total remuneration for the contract for financial loss.
Liability for financial loss shall be limited to a total of Euro 500,000 per contract.
Any rights to claim for loss of profit are excluded.
In the event of loss of data Contractor shall be liable only for the time and effort required by Customer to recover the data where proper data backups have previously been performed. In the event of slight negligence on the part of Contractor this liability shall be effective only if Customer has performed a proper data backup immediately before the action leading to the loss of data.
Even in case of gross negligence, liability shall be restricted to typical, foreseeable damage, provided that such damage has not been caused by any officers of Contractor.
In case of strict liability for initial impossibility, default or express warranties, Customer's liability shall also be restricted to typical, foreseeable damage. The liability with regard to the above shall also be limited.
The limitations of liability in accordance with Clause 8.2 shall not apply in case of willful acts, in case of injury to life, limb or health or in cases involving the application of the Product Liability Act (Produkthaftungsgesetz).
§ 9 Limitation
Any claims in accordance with Clauses 7 or 8 shall expire within 2 years of knowledge, however not later than 8 years of full completion of the services or premature termination of the contract.
§ 10 Set-off
Customer shall be entitled to set-off only if customer's claims are undisputed or recognized by final legal judgment.
§ 11 Data Protection, Confidentiality, Security
Customer shall ensure that Contractor is duly made aware of any relevant facts in addition to those required under the provisions of law, knowledge of which is necessary for the Contractor for reasons of data protect and confidentiality.
Except as otherwise agreed, Customer shall make sure to delete sensitive data prior to delivery of the relevant data medium to Contractor.
Contractor shall ensure that all persons assigned by Contractor for the handling or performance of the contract shall observe the provisions of law related to data protection. The obligation to maintain data confidentiality as required under data protection laws shall be undertaken no later than before initial performance of the services, proof of which shall be submitted to Customer at Customer's request.
Customer and Contractor undertake to keep confidential all information and trade and business secrets received under or in connection with the contract and not to disclose such information or trade or business secrets to third parties.
§ 12 Writing
Unless any other additional form has been agreed, the contract and any amendments thereto and all representations made under the contract shall be made in writing. The same shall also apply to any waiver of this requirement of the written form.
§ 13 Applicable Law
The laws of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 14 Severability
If any provision of the contract is ineffective, this shall not affect the effectiveness of the remaining provisions. The parties to the contract shall cooperate to replace any ineffective provision with a provision which reflects as closely as possible the original intention of the ineffective provisions.
§ 15 Jurisdiction, Place of Performance
The place of performance for all obligations arising under the contract shall be Büren, Germany. The place of jurisdiction for all disputes arising from the contract shall be Paderborn, Germany insofar as the requirements for an effective agreement on jurisdiction have been met (full merchants or legal entities under public law). Contractor shall also be entitled to bring legal action at principal seat of Customer.
Revised: 09.06.2010 d3/d2489