General terms and conditions (GT&C) of q.beyond logineer GmbH
This version: September 2022
1. Object of the agreement
1.1. These general terms and conditions apply to all IT services which q.beyond logineer GmbH (hereinafter referred to as the "provider") performs for the customer during the term of the contract. The term "terms and conditions" is used hereafter to refer to the text of these terms and conditions without its annexes, appendices, performance certificates and their appendices. Other general terms and conditions or other deviating terms of the parties shall be excluded, even if reference is made to their applicability in an order or the order acceptance.
1.2. The contractual relationship between the parties shall be based on the following legal provisions set out below and applicable in the following order of precedence:
- Commissioning on the basis of the offer
- these terms and conditions
- if applicable, special terms (not applicable for the Service Description Pure Enterprise Cloud)
- if applicable, service certificate(s)
- if applicable, additional annexes to the offer or the service description (descriptions of services, service level agreements ("SLA")).
1.3. Immediate performance obligations of the parties arise from these general conditions only in connection with the relevant service description or conjunction with the offer.
2. General obligations of the provider
2.1. The provider shall provide the services defined in detail in the offer, these terms and conditions and any applicable special terms and/or service description and their annexes (descriptions of services as well as SLAs).
2.2. The provider shall be exclusively entitled to select and issue instructions to the personnel (including the customer's contact person) engaged to carry out the services.
2.3. The Provider shall be entitled, unless otherwise expressly stated in the offer or the performance certificate, to select at its discretion the working equipment required to deliver the contractual services.
2.4. The provider shall be entitled to supply partial services, provided they can be used independently.
2.5. Dates and deadlines are only binding if they have been expressly confirmed in writing by the provider and the customer has fulfilled, in a timely manner, all its agreed obligations to cooperate.
The customer is in particular obliged to cooperate as follows:
3.1. The customer shall grant provider access to the end-customer’s premises to the extent required to supply the contractual services. The customer shall furthermore ensure that the persons engaged by the provider to fulfil its contractual obligations, and whose presence on the customer’s premises is required, are supplied with the facilities and resources necessary for the provision of the contractual services.
3.2. The customer shall appoint a contact person with the level of authorisation needed to take decisions regarding provision of the agreed services.
3.3. The Customer shall make available to provider, whenever it is asked to do so, all the information required to deliver the agreed services. If the customer has, or should know of, information that is important for the provision of services, it shall provide this information to the provider without being asked to do so. This applies in particular to modifications that the customer might make to its provided hard- and software, insofar as such changes are likely to affect the services supplied.
3.4. If provider supplies the customer with passwords for accessing servers, etc., these are to be kept confidential and only made available, as strictly required for this purpose, to a limited group of persons. If the provider provides the customer with default passwords, the customer shall immediately (and at regular intervals thereafter) change these passwords, if and insofar as they can be changed by the customer. The customer shall immediately notify provider if it becomes aware of or suspects unauthorised third-party access to passwords.
3.5. Unless it is expressly agreed that the provider shall be responsible for backing up data, the customer shall ensure that it’s data is backed up at appropriate intervals in accordance with the respective business purpose in order to enable the reconstruction of the data in the event of loss. Regardless of any existing agreement regarding the backing-up of data by the provider, the customer shall be solely liable for ensuring the observance of filing regulations for such purposes as commercial law or tax obligations.
3.6. The customer shall immediately notify the provider the of all and any circumstances that are likely to entail negative consequences for the operation of the data centre or other facilities belonging by the provider's or other clients and customers.
3.7. If and to the extent that the customer engages the provider to save log files and/or usage reports and/or to back up and/or supply other data that can be used to draw conclusions regarding the behaviour of authorised users, the customer shall be responsible for ensuring that such actions do not infringe employees’ rights, with particular reference to participation rights (Beteiligungsrechte). Reference is made in this respect to article 87, section (1), subsection 6 of the German Works Constitution Act (Betriebsverfassungsgesetz).
3.8. The customer shall notify the provider to immediately and in writing of any change affecting its legal form, postal address, telephone number or bank details, and of fundamental changes to its financial circumstances (e. g. applications to open insolvency proceedings or declaration of bankruptcy). The customer shall compensate the provider for all and any costs arising from culpable delay in providing such information.
3.9. Further obligations to cooperate may result from the special terms or the performance certificates and their annexes.
3.10. The customer shall perform free of charge its obligations to cooperate with the provider.
3.11. This undertaking to cooperate is a main contractual obligation on the part of the customer.
4. Items provided by the customer
4.1. If it is agreed that the customers should make infrastructure, hardware and/or software available for the provision of services, these items are to be supplied punctually, free of charge for the provider and in a contractually specified state. The customer guarantees that it is entitled to supply such items in accordance with this agreement.
4.2. The customer shall ensure that all locations of the customer at which technical equipment of the provider is to be installed have the necessary floor space, a suitable electricity supply and proper air conditioning, and that the technical equipment concerned is used in a permanently safe and secure operating environment with protection against fire, theft and vandalism.
4.3. The customer shall provide all the software licenses required for the supply of the contractual services, unless otherwise agreed.
4.4. The customer shall obtain, insofar as is necessary, the consent of the corresponding software licensor; in addition to the application of clauses 18.3 and 18.4.
4.5. Clause 3.11 shall apply accordingly
5. Usage by third parties
5.1. The customer shall not, without the prior written consent of the provider, supply the contractual services to any third party.
5.2. The customers shall not sell on to third parties any items sold under the terms of clause 10, unless it has the corresponding prior written consent from the provider to do so. The provider shall not refuse consent if the purchase price has been paid in full by the customer and the respective manufacturer or distributor agrees to the transfer of the item(s) concerned to a third party.
6.1. The customer shall be obliged to pay the charges stated in the offer for the commissioned services. It is agreed that these charges shall be subject to the addition of value added tax (VAT) at the current applicable rate.
6.2. The fees agreed for the individual services shall be charged as of the provision (for the term "provision", see the provision in the respective service description) of the respective service or, at the latest, as of the first use of the respective service; this shall also apply to partial services. The Provider is entitled to charge usage-independent fees in advance.
6.3 Usage-dependent charges shall be based on the usage data measured by the provider and billed in arrears via the corresponding monthly invoice.
6.4. The charges for time and material agreed in the offer shall apply for the period Monday to Friday between 8.00 a.m. and 6.00 p.m., with the exception of national public holidays. Travel times to the customers and back are charged as working time at 50%. If the customer wishes the services to be carried out outside these times, the agreed charges shall be increased as follows:
- on working days between 6 p.m. and 11 p.m. and between 6 a.m. and 8 a.m. by 25%,
- on working days between 11 p.m. and 6 a.m. and on Saturdays by 50%,
- on Sundays by 75% and
- for public holidays by 100%.
6.5. The invoiced amount shall be due for payment fourteen (14) days after receipt of the invoice.
6.6. All charges shall be payable without deduction of any withholding taxes or other taxes that might be imposed by foreign tax authorities or any other official authority and/or which might be due in accordance with corresponding legislation (hereinafter referred to collectively as “withholding taxes”). The customer shall nevertheless pay the full agreed amount to the provider, regardless of any withholding-tax liabilities on the customer’s part. The provider will provide reasonable support to the customer regarding the refund of withholding tax in this respect. The customer shall indemnify and hold the provider harmless for any costs that might arise.
7. Contractual Change Management
7.1 During the term of the contract, both parties may propose changes to the agreed services at any time ("Changes"). All Changes shall be made in a comprehensible form. Unless the parties agree otherwise for individual services in the offer, the contractual change management shall be governed by the principles of the following paragraphs.
7.2 The customer shall be entitled to request changes at any time. The Provider shall submit a binding offer in accordance with Section 7.3, unless this is impossible or unreasonable for the provider. The provider shall be entitled to demand reasonable remuneration in line with the market for the (additional) expense incurred by the implementation of a Change or, if external support is called in for the preparation of the offer, also for the (additional) expense incurred by the preparation of the offer.
7.3 In the event of a change request by the customer, the provider shall inform the Customer within a reasonable period of time, regularly within fifteen (15) business days after receipt of the change request,
- whether the change is possible, indicate any effects on existing or ordered services and submit a binding offer or
- that the Change is not possible or unreasonable and explain the reasons for the impossibility or unreasonableness in detail and in a comprehensible manner; or
- that a longer review period is required. In this case, the provider shall at the same time inform the customer by which date a binding statement can be made.
7.4 The customer shall inform the provider within a reasonable period of time, regularly within ten (10) business days, after the submission of the notification pursuant to Section 7.3 a. above
- whether the offer of the provider is accepted or rejected or
- send an amended Change Request or
- notify that a longer review period is required. In this case, the customer shall at the same time indicate the date by which a binding statement can be made.
7.5 The customer may agree to the provider's change requests at any time. The customer shall agree to such proposals to the extent that justified interests of the customer do not conflict therewith and such changes are absolutely necessary for the performance or maintenance of the service obligations or the implementation of statutory requirements. If such changes have a significant impact on the agreed service content, both parties undertake to immediately make contractual adjustments to the service obligations and the remuneration to a reasonable extent, insofar as these adjustments affect the remuneration.
7.6 The provider shall control and document the contractual change management.
7.7 If a Change requires a project approach due to its complexity or size, or if the Parties agree that a project approach is required, the Parties shall agree on a project contract.
8. Price Adjustments
8.1 If the market prices for comparable services change during the term of the contract, a corresponding adjustment of the agreed charges listed in the Offer (see the monthly recurring fees as well as the variable charges and day rates) shall be made at the request of either party – except paragraph 8 section 5.
8.2 A change in the market prices for comparable services shall be deemed to exist if the "Producer Price Indices for Services, EVAS No. 61311, Category WZ08-620 Information Technology Services" (Erzeugerpreisindex für Dienstleistungen, EVAS-Nr. 61311, Kategorie WZ08-620 Dienstleistungen der Informationstechnologie) officially determined by the Federal Statistical Office shows a change of more than 2.5 % compared to the index published in the month of the conclusion of the contract or compared to the index published in the month of the last adjustment of the fees.
8.3 A price adjustment may be demanded by either party with effect from 1st of January and 1st of July. Price adjustments must be asserted at least six (6) weeks before they take effect and must be in writing.
8.4 Should the price index of the Federal Statistical Office or a successor authority be rebased and/or no longer be continued in its previous form, it shall be replaced by the corresponding successor index or an index which ensures the safeguarding of the market prices intended by the parties to the same extent as possible in economic terms as the index which was last decisive.
8.5 The provisions of this Section 8 shall not apply to any agreed charges for electricity supply services listed separately in the Offer.
8.6 If manufacturer-specific terms and conditions containing separate price adjustment clauses for certain services are agreed to, only the relevant price adjustment provisions contained therein shall apply to these services.
9. Duration of the agreement and termination
9.1. The minimum contract term is specified in the offer. If the agreement is not terminated at three (3) months’ notice to the end of the minimum contractual term, it shall be extended for a further twelve (12) months. If the agreement is not then terminated at three months’ notice with respect to the extended period, it shall be extended at further twelve-month intervals, unless it is cancelled subject to the same period of notice with respect to the current twelve-month period.
9.2. These terms and conditions shall apply until the complete termination of all services commissioned by the customer.
9.3. This does not affect the parties’ respective right to extraordinary termination on reasonable grounds.
9.4. The provider shall in particular have reasonable grounds to terminate, after granting a suitable period of grace and still not obtaining a suitable remedy, in the following cases:
- the customer is in arrears with payment obligations for more than 14 days and, despite being requested to do so, has not provided adequate security in accordance with clause 22 within the period set by the provider, or
- if the provider – in the case of arrears with payment obligations - has taken security provided by the customer and the customer has not adequately renew such security in accordance with the initial amount.
9.5. The provider shall in particular be entitled to terminate – even individual service descriptions - on extraordinary grounds and without further notice, after granting a suitable period of grace and still not obtaining a suitable remedy, in the following cases:
- the customer fails in two (2) consecutive months to settle payment owed or a not inconsiderable part of such payment, or fails over a period of more than two (2) months to settle a payment equivalent to the sum total of two (2) average monthly invoices. Calculation of this average value shall be based on the average amount of the invoices received by the customer in the six (6) months immediately preceding it falling into arrears for the first time or, if it has not yet received invoices during a period of six (6) months, the average amount of the invoices issued before it fell into arrears for the first time. As an alternative to termination without notice, the provider may ask the customer to provide a reasonable payment guarantee as security in accordance with clause 22, or
- if the customer is insolvent or excessively indebted, or
- if insolvency proceedings affecting the customer’s assets have been rejected or abandoned due to lack of assets to cover the cost of such proceedings, or
- if the customer has instigated, whether voluntarily or involuntarily, dissolution, liquidation or winding-up proceedings.
9.6. All notice of termination must be issued in writing.
9.7. If the contractual relationship ends prematurely due to termination on extraordinary grounds, and termination is due to contractual infringement on the part of the customer, the customer shall be obliged to settle 50% of the contractual amounts that would have been payable up to the normal termination of the contract a relationship. The total amount of remuneration payable shall fall due at the moment in which notice of termination comes into effect. The parties shall be entitled to prove that the provider is owed a lower or higher amount of compensation as a result of premature termination.
10. Duties upon termination of the contract
10.1. Upon written request of the customer, which must be received by the provider at the latest at the same time as the termination (normal or on extraordinary grounds) of the contract by the customer or immediately after an ordinary termination by the provider, the provider shall submit an offer to the customer for a project agreement on a termination project, the essential objective of which is to enable a retransfer of the contractual services to the customer or a third party to be determined by the customer and to prevent service interruptions or to minimise the effects of service interruptions on the customer's operations. The offer on the project agreement will stipulate, among other things, a deferral of the termination of the contractually agreed service beyond the effective date of termination for a maximum period of six (6) months, the additional services to be provided by the provider, if any, as part of the termination project, as well as the customer's cooperation obligations required as part of the termination project.
10.2. If the provider terminates on extraordinary grounds for good cause the provider may require a reasonable security payment or advance payments before he provides services according to clause 10.1.
11. Contractual incidents
11.1. The provider shall remedy incidents, insofar as they lie within its sphere of responsibility, in accordance with the provisions of the SLA agreed in each case for the service in question. If no SLA applies to a disruption, the rectification of the fault shall be carried out within a reasonable period of time.
11.2. The customer undertakes to notify the provider immediately of any defects or incidents that might be detected, and support the provider to a reasonable extent when dealing with them.
11.3. All maintenance and repair work involving hard- or software made available to the customer under the terms of the contractual relationship must be carried out exclusively by the provider or by a third party engaged by the provider.
11.4. If software or hardware provided by the provider is no longer offered by the respective manufacturer or distributor and the support of the manufacturer for it also ceases (end of maintenance, end of mainstream support), the provider shall inform the customer of this and specify the date on which the support expires or the soft- or hardware can no longer be offered. In this case, the customer can commission the provider with a charged upgrade or release change of the affected software or with a charged replacement of the affected hardware. If the customer does not accept the provider’s offer in this respect,
- the agreed service levels shall apply (see the relevant Service Level Agreement), with the proviso that no failure or defect affecting the software or hardware concerned shall be taken into account once the date established by the provider for calculating the corresponding service level commitment has expired. The provider shall only undertake to recover the functionality of, or rectify defects affecting, the software or hardware concerned within the bounds of its operational possibilities.
- the provider shall notify the customer accordingly if the manufacturer or distributor has ceased to update the software or the firmware contained in the hardware concerned, if applicable, in particular in the event of existing security vulnerabilities or new attack methods. The customer shall then be responsible for all and any compatibility and security implications that might result in this respect.
11.5. The provider cannot undertake to provide complete protection of the customer’s infrastructure through the security solutions provided (virus protection, firewalls, spam filters, etc.). The provider uses widely known, tried-and-tested applications, which it updates at regular intervals. The provider cannot however rule out situations such as one in which a new attack reaches the customer’s networks and connected components before the manufacturers of these software tools have released an update designed to detect such an attack. This is due to the fact that there is always, by the very nature of the incident, a certain time lag between the discovery of a new method of attack and the corresponding reaction of the supplier of security software. The provider cannot therefore guarantee absolute security for the infrastructure being protected.
12. Special provisions governing the sale of hard- and software
If and insofar as the parties agree that services should be subject to legislation governing contracts of sale, with particular reference to the sale of hardware and software (“goods” or “items”), the provisions set out below shall apply. In the case of the sale of software, the clauses 18.1, 18.2, and 18.4, 18.1 shall apply, subject to the proviso that the licence to use the software is granted for an unlimited period.
12.1. The provider shall retain legal title to all goods until the agreed purchase price has been settled in full. In the event of third-party intervention affecting products subject to retention of title, with particular reference to seizure or impounding, the customer shall indicate the existence of the provider’s legal title and notify the provider immediately so that the provider can exercise its rights in this respect. If the third party is unable to meet the provider’s legal or extra-judicial costs in this respect, the customer shall be liable for the same. In the event of the sale of software, the provider shall also retain title, until full settlement of the agreed purchase price and in accordance with clause 16.1, to all usage rights granted. Usage rights are provisional, and may be revoked by the provider at any time, until the purchase price has been settled in full.
12.2. If hardware was defective at the moment of transfer of risk, the provider may fulfil the customer's right to remedy by, at the discretion of the provider, repairing the hardware (“rectification of defect”) or replacing it with defect-free hardware (“replacement”). The customer shall – under consideration of applicable provisions with manufacturers and distributors - grant the provider the time and opportunity required to provide a remedy. In the event of replacement, the customer shall ensure that the defective hardware is returned to the provider upon delivery to the customer of the replacement hardware. If the customer already held legal title to the defective hardware before replacement took place, return of the defective hardware to the provider likewise transfers legal title to this defective hardware to the provider. With the delivery of the replacement hardware to the customer, the provider transfers legal title to this replacement hardware to the customer, provided the purchase price has been fully settled by this moment. If this is not the case, the provider shall replace the hardware subject to retention of title. Clause 12.1 shall then apply accordingly.
12.3. If software was defective at the moment of transfer of risk, the provider may fulfil the customer's right to remedy by, at the discretion of the provider, repairing the software or supplying a defect-free replacement. Repairs to software may also consist of the provider giving the customer reasonable possibilities of applying a corresponding workaround. The customer shall – under consideration of applicable provisions with manufacturers and distributors - grant the provider the time and opportunity reasonable to provide a remedy.
12.4. No claims for loss or damage can be made for insignificant defects.
12.5. The right to claim for defects shall expire twelve months after the transfer of risk. This does not affect the customer's right to claim under the terms of clause 14 (or clause 18 in the case of software).
12.6. Unless otherwise established elsewhere, the customer's right to claim for defects shall be subject to the corresponding statutory provisions.
13. Special provisions governing the supply of works services
If and insofar as the parties agree to services that are subject to works contract law, the following provisions shall apply:
13.1. The provider shall be solely liable for the achievement of specified objectives only insofar as
- The relevant criteria are specifically defined and established, with respect to scope and outcome, at the moment of entering into the agreement, and
- the customer fulfils its obligations to cooperate in a timely and proper way, unless the failure of such fulfilment has no bearing on the provision of the service concerned.
13.2. The provider undertakes to notify the customer in writing of confirmed readiness for acceptance. The customer shall, unless there is provision to the contrary, begin the acceptance process within five (5) working days of being notified of readiness for acceptance, and carry out the procedures concerned together with the provider. The work services shall be considered accepted if the customer begins to use the services supplied by the provider for their intended purposes or if the customer does not, within four (4) weeks of the date on which the customer received notification from the provider of readiness for acceptance, notify the provider in writing of defects corresponding to Class 1 or at a minimum three defects of class 2.
- Class 1 defect: use for the agreed purpose is prevented or severely restricted by, for example, malfunction, incorrect results of work or excessive response times;
- Class 2 defect: a defect which does not prevent or seriously restrict usage for intended purpose (e.g. due to malfunctions, incorrect working results or excessive response times), but which does place certain not inconsiderable limits on normal usage;
- Class 3 defect: all defects not covered by classes 1 or 2 above
13.3. The definitive assignment of defects to the above-mentioned classes shall be carried out by agreement between the parties. This shall not affect the provisions governed by article 640, section 1, subsection 2 of the German Civil Code (BGB).
13.4. The customers shall notify the provider in writing of all defects that might be detected. If service items were defective at the moment of transfer of risk, the provider may at its discretion rectify these defects or supply a replacement. The provision of a reasonable workaround for the defect concerned shall constitute such replacement. If the provider fails to provide subsequent performance on two occasions, within a reasonable period of grace granted by the customer in writing, the customer may assert its claims in accordance with the corresponding legal provisions, subject to exclusion of the customer’s right to selfremedy (Selbstvornahme) within the meaning of article 637 BGB. Insignificant defects shall not entitle the customer to withdraw from the agreement, although this shall not affect the customer’s right to claim a reduction in price.
13.5. Different provisions regarding contractual works services and/or acceptance may arise from special terms and conditions, without affecting the legal order of precedence established in this respect in clause 1.2.
If and insofar as the provider does not provide publicly accessible telecommunications services under the terms of the corresponding German legislation (the Telekommunikationsgesetz, known by its German initials “TKG”, see also clause 15), the provider’s liability shall be subject to the following provisions:
14.1. The provider shall be liable without limit in cases where it expressly undertakes in writing to provide a guarantee or assume procurement risk, and also in the event of material or financial loss or damage arising from misrepresentation or gross negligence and also in the event of misrepresentation or negligence resulting in death, personal injury or harm to health.
14.2. This does not affect obligations acquired under product-liability law (“Produkthaftungsgesetz”).
14.3. The provider shall be liable for material and financial loss, in the event of a slightly negligent breach of duty, only if the fulfilment of such contractual obligations enables proper implementation of the contract in the first place, if the breach of duty endangers the achievement of the object of the agreement and if the customer regularly relies on such observance (i.e. so-called “cardinal obligations” (“Kardinalpflichten”), including for example culpable infringement of the availability requirements of the corresponding SLA). The provider’s liability in this respect shall in any case be limited to the typical cases of loss or damage foreseeable at the moment of entering into the agreement.
14.4. If the carrying-out of data backups is not a service expressly to be provided by the provider, the provider shall only be liable for the loss or damage of data and programs, and for their subsequent recovery, to the extent that such loss would not have been avoided by the application of such reasonable preventive measures in particular the creation of backup copies of all data and programs at intervals appropriate to the respective business purpose..
14.5. The provider's strict liability for defects that were already present at the moment of entering into the agreement (article 536 a, BGB) is hereby excluded. This does not affect the liability provisions of the clauses 14.1 to 14.4.
14.6. If and insofar as liability is excluded or limited in accordance with the above clauses, this provision shall also apply to personal liability on the part of employees, agents and/or legal representatives by the provider.
15. Liability under the terms of the TKG law
If and insofar as the provider is performing publicly accessible telecommunication services under the terms of the German Telekommunikationsgesetz (TKG law), the provider shall be liable, in contrast to clause 14, for financial loss or compensation payments pursuant to clauses §§ 58,59 TKG in the event of slight negligent breach of duty affecting the provision of such telecommunication services, up to a maximum of €12,500.00 per customer, with total liability to the injured clients limited up to a maximum of €30 million for each incident. If the amounts corresponding to multiple customers that result from the same event caused by breach of duty in the provision of public available telecommunication services within the meaning of the TKG lead to the maximum limit being exceeded, liability or compensation shall be reduced in relation to the total of all claims for damage or compensation that exceed the maximum limit. This limitation on liability shall not apply to claims for damage or compensation arising from delayed settlement of compensation payments.
The customer's right to claim shall expire twelve months after notification, and in any case no later than 36 months after the moment in which the service concerned was delivered or the corresponding contractual infringement took place. This provision does not affect the legal statute of limitations applying to misrepresentation or acts of gross negligence, to claims arising from misrepresentation or negligence resulting in death, personal injury or harm to health, to willful deceit or to claims based on product-liability (“Produkthaftungsgesetz”) law.
17. Force majeure
17.1. Neither party shall be responsible for delivery delays or service interruptions in the event of force majeure.
17.2. Events of force majeure may in particular include pandemics, strikes, legal inhouse labor disputes, war, terrorist attacks, civil unrest, natural disasters, fire, sabotage by third parties (e. g. denial of service attacks) or the withdrawal, not attributable to either party, of permits or licenses. The parties undertake to keep each other fully informed of any instance of force majeure.
18. Licensing rights
18.1. If standard software created by the provider is provided to the customer within the scope of services subject to these terms and conditions, the customer shall receive a non-exclusive right of use to this software for the duration of the term of the contract for the intended use of the contractual software, unless expressly agreed otherwise. In the event of the sale of such standard software, the simple rights of use shall be granted for an unlimited period of time. Insofar as third parties assert claims against customer with regard to software created by provider due to infringement of third-party rights, the provider shall indemnify the customer against such claims unless the customer is responsible for the infringement. The appropriate defense measures, settlement negotiations and the conduct of any legal disputes shall remain reserved for the Provider.
18.2. If standard software ("Third Party Software") created by third
parties is provided to the customer by the provider subject to these
terms and conditions, the customer shall be granted a non-exclusive right
of use in accordance with the license terms of the respective
manufacturer or distributor for the agreed term.
All indemnity obligations on the part of the provider vis-a-vis the customer shall be in accordance with the licensing conditions of the manufacturer or distributor concerned. If the customer is subject to third party claims arising from alleged infringement of commercial or patent rights relating to third party software provided by the provider, the provider and/or the manufacturer or distributor concerned shall in any case reserve the right to take appropriate defensive measures, instigate settlement negotiations and take possible legal action. The customer shall only acknowledge claims asserted against it if it has the provider’s written permission to do so. The customer undertakes to provide reasonable support to the provider and/or the manufacturer or distributor in the event of legal action or settlement negotiations.
18.3. If and insofar as software is provided by the customer, the customer shall grant the provider free of charge all the usage rights that might be required to fulfil the object of the agreement. If third party claims are asserted against the provider due to an alleged violation of commercial and patent rights in connection with software provided by the customer, the customer undertakes to indemnify and hold the provider harmless for such claims, unless the provider is responsible for violation of the law. The provider shall not be entitled to enter into agreements designed to settle third party legal disputes – with particular reference to amicable agreements – without the customer’s consent. The latter shall not apply if the customer refuses to comply with a request from the provider to hold it harmless for third party rights. This indemnity obligation on the part of the customer shall cover any cost, loss or damage which the provider might incur as a result of, or in the course of, third party claims.
18.4. Each party undertakes to notify the other immediately and in writing of any third party claim for loss or damage that might be asserted against it.
18.5. Insofar as the customer is provided with individual software specially developed for the Customer within the framework of the contract, the provisions of this Section 18 shall not apply. The provisions of Clause 19.4 shall apply.
19. Rights to work results
19.1. “Work results" within the meaning of these terms and conditions shall be all works created by the Provider's activities under the Contract, in particular software and its parts, documentation, reports as well as training material on the application and maintenance/care of IT systems.
19.2. If and insofar as industrial property rights and/or copyrights arise in the context of the performance of the contract on the basis of work results of the provider, the provider alone shall be entitled to these industrial property rights and/or copyrights in relation to the customer. In the relationship with the customer, the provider shall be entitled to the worldwide exclusive rights of use, unlimited in time and content, for all known types of use, in particular the right to duplication, processing, broadcasting, translation, editing, digitization, online provision, online reproduction, demonstration as well as the multimedia and database right, without payment of a separate remuneration.
19.3. The customer and the companies affiliated with the customer pursuant to §§ 15 et seq. German Stock Corporation Act (Aktiengesetz) shall be granted the nonexclusive right to use the industrial property rights and/or copyrights pursuant to clause 19.2 free of charge for the term of the contract within the scope of the use of the services that are the subject matter of the contract
19.4. Excluded from clauses 19.2 and 19.3 are work results which the customer has explicitly ordered and which are created by the Provider individually for the customer against payment of the agreed remuneration, in particular individual software ("Individual Work Results"). Individual work results are only those that are identified as such in the offer or in the individual contract. Unless otherwise agreed, the customer shall acquire the exclusive right of use to the Individual work results, unlimited in time and space and extending to all known types of use.
19.5. The customer declares its basic willingness to (re)transfer the rights listed in clause 19.4 to the Provider in return for reasonable compensation.
20. Nonsolicitation clause
Employees of the provider who have worked on the customer’s behalf within the terms and of the agreement shall not be actively recruited by the customer until six months after their tasks are complete, unless the provider otherwise consents. This six-month-period shall begin with the definitive termination of the activity concerned (i. e. after its full completion) or the termination of the agreement, whichever occurs later.
21. Prohibition of assignment, offsetting, right of retention
21.1. The customer shall not assign its claims against the provider to any third party. Article 354a of the German Commercial Code (HGB) remains unaffected.
21.2. The customer may only offset claims of the provider against undisputed or legally established claims or assert a right of retention.
22. The provision of security guarantees
22.1. The provider shall be entitled, after the agreement enters into effect, to demand a security guarantee from the customer if the customer falls into arrears for more than two weeks with its payment obligations. If the security guarantee is not provided within two weeks of the provider’s corresponding request, the provider shall then be entitled, in accordance to 9.3 in conjunction with 9.4, to terminate on extraordinary grounds.
22.2. The security guarantee is to be supplied upon demand by the provider, without prejudice to any other legal or contractual rights, either in cash or as an immediately enforceable, nontimelimited, irrevocable bank guarantee issued by a German bank in favour of the provider and for an amount corresponding to the invoiced totals of the four months previous to falling into arrears. The bank shall waive its right to object under the terms of articles 768, 770, sect. 1 and 771 of the German Civil Code (BGB).
22.3. If the volume of contractual business increases, the provider shall be entitled to demand a corresponding amendment of the guarantee amount.
22.4. The provider shall be entitled to resort to the security guarantee if the customer falls into arrears with payments. If this occurs, the customer undertakes to replenish the security guarantee within two (2) weeks, thereby returning it to its original amount.
22.5. The security guarantee shall be returned upon termination of the agreement, provided there are no outstanding claims against the customer.
22.6. The provider shall be entitled to resort to the security guarantee if the customer falls into arrears with payments. If this occurs, the customer undertakes to replenish the security guarantee within two (2) weeks, thereby returning it to its original amount.
23.1. "Confidential Information" shall mean the contents of the offer, these terms and conditions, the special terms, the descriptions of services and the SLA as well as all information, in whatever form (in particular in writing, verbally or in the form of electronic data), which the parties communicate to each other in the context of the performance of this agreement. This also comprises all documents, data media and other media created by the other party itself.
23.2. The parties shall treat confidential information as strictly confidential and use it only for the purpose of implementing the contract.
23.3. All confidential information will be kept secret by the other party, protected from access by third parties and will not be used for any purpose other than that specified in clause 23.2. Companies affiliated with the Parties pursuant to §§ 15 f. AktG are not third parties within the meaning of this clause 23. Any disclosure of confidential information to employees of the other party and employees of affiliated companies shall only take place if they need to know the information in question in order to be able to fulfil the purpose of the contract. The staff and employees of affiliated companies shall be bound to observe confidentiality in an appropriate manner. Disclosure to third parties is only permitted with the consent of the disclosing party. In this case, the third parties shall be bound to observe confidentiality in accordance with this provision.
23.4. Excluded from the obligation to maintain confidentiality is such information which
- is already publicly known at the time it is obtained,
- must be passed on by the provider to its subcontractors for the purpose of proper performance of the service,
- must be disclosed due to statutory provisions, legal orders, official regulations or legally binding decisions (the parties shall inform each other of the relevant decisions of the authority or court without delay, insofar as this is legally permissible, and insofar as this is reasonable before disclosing the relevant information),
- is disclosed to members of professional groups who are legally bound to confidentiality; or
- has been demonstrably developed by the other party independently of the disclosure of confidential information by the disclosing party.
23.5. This provision shall continue in effect for a period of two (2) years after any termination of the agreement.
24. Written form
24.1. Any amendments to these terms and conditions shall be made in writing. This also applies to any provision changing this obligation to communicate in writing.
24.2. Unless otherwise agreed in these terms and conditions, the special conditions, a performance certificate or any other agreement relating to these terms and conditions, the written form shall be sufficient for amendments and supplements to the other legal bases referred to in clause 1 paragraph (2). This applies in particular to orders as well as increases, reductions and Changes under these terms and conditions.
25.1. The customer agrees to execute a reference customer agreement with the provider.
25.2. All claims arising from the contractual relationship with the customer shall be subject exclusively to the laws of the Federal Republic of Germany. Application of the United Nations agreement with respect to international contracts to purchase is hereby excluded.
25.3. The place of jurisdiction is Hamburg (Germany).
25.4. If any provision of these terms and conditions or the special conditions is partially or completely invalid or unenforceable or contains an omission, all other provisions shall remain unaffected. The invalid clause shall be replaced by a valid and enforceable provision which comes as close as possible to the economic and legal purpose of the invalid clause. Any contractual omission shall be remedied in accordance with this criterion.