General Terms and Conditions

General Terms and Conditions

Those General Terms And Conditions are valid for all solutions, software licensing and services of Studio Sottile if no project-specific Terms and Conditions are provided.

Definitions and Interpretation

In these Terms and Conditions  the following definitions apply unless otherwise stated:

‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in Germany are open for business.

 

‘Company’ means Studio Sottile, a company incorporated in Germany whose registered office is Am Schänzel 9, 69151 Neckargemünd, Germany.

 

‘Confidential Information‘ means all information and documents of the respective other party which are marked as confidential or which are to be regarded as confidential due to the circumstances, in particular information on operational processes, business relations and know-how, as well as – for the Company – all work results.

 

‘Consulting‘ means providing business advice on various topics including, corporate strategy, product development, marketing, information technology, and operational improvement to the Client.

 

‘Consultant‘ is a professional undertaking or the professional individual named in the Contract who is appointed by the Company to perform the Services. This shall include the Consultant’s legal successors as approved by the Company and subject to prior written consent from the Company.

 

‘Contract’ means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.

 

‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.  refers to a business who purchase professional services from the Company to satisfy a need or solve a problem going into a formal business relationship with the Company.

 

‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

 

‘Group Company’ means a company which is a subsidiary or holding company of the Company.

‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

 

‘Order’ means the order placed by the Client through counter-signing the Company’s Order Confirmation  form. 

 

‘Order Confirmation Form’ means a form countersigned by the Client which together with the relevant Quotation and Proposal documents; and these Terms and Conditions  shall form a binding contract.

 

‘Quotation and Proposal’ means the written quotation and proposal documents prepared by the Company which contains its proposals for providing Services to the Client.

 

‘Services’ means the services the Company will provide to the Client as specified in the Order. 

 

‘Specification’ means the description or specification of the Services in the Order.

 

‘Terms’ means these Terms and Conditions  as updated from time to time by the Company.

 

‘VAT’ means value added tax chargeable under German law for the time being and any similar additional tax.

 

Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words that denote a particular gender, they shall be also read to include all genders and vice versa. 

The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.

A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1. Scope and Subject of the Agreement and Contract

1.1 These General Terms and Conditions  cover all the consultancy services provided by the Company to its clients (“Client”). The services referred to in the first sentence shall be performed exclusively under the Terms and Conditions  set out herein. Other provisions, in particular general Terms and Conditions  of business of the Client, shall not apply, regardless of whether or not they have been expressly rejected by the Company. These General Terms and Conditions  shall also apply exclusively even if the Company performs or agrees to perform a service without reservation whilst being aware of different Terms and Conditions .


1.2 Unless otherwise agreed, the General Terms and Conditions  in force at the time of the conclusion of the respective contract with the Client, in any case in the version last notified to it in text form, shall apply.


1.3 These General Terms and Conditions  shall also apply to future similar legal transactions between the Company and the Client.


1.4 Individual agreements made between the Company and the Client on a case-by-case basis shall take precedence.


1.5 References to the applicability of statutory provisions are purely for the purposes of clarification. Therefore statutory provisions shall apply regardless of any such clarification, unless they are directly modified or expressly excluded in these General Terms and Conditions .

1.6 These General Terms and Conditions  shall only apply to Clients who are entrepreneurs, legal persons under public law or special funds under public law. The Client must be entrepreneur within the meaning of the VAT legislation.


1.7 These Terms and Conditions  shall apply exclusively. Any contrary, deviating or supplementary Terms and Conditions  of the Client shall not become part of any contract or agreement, also not in cases where, in awareness of the general Terms and Conditions  of the Client, The Company accepts purchase orders, perform services or refer to letters from the Client which incorporate said general Terms and Conditions  of the Client without reservation. The Company only recognizes general Terms and Conditions  if The Company expressly consents to their validity.


1.8 These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 


1.9 These Terms and the Order may only be varied by express written agreement between the Company and the Client.

2. Conduct of the Consulting

2.1 The Company shall provide advice exclusively with regard to the subject matter of the Consulting as specified in more detail by the Company in the offer as well as in any attachments to the offer.


2.2 The Company owes only the agreed Consulting activity or other contractual service, not a certain success or a further specified result. The Client is solely responsible for deciding on the timing as well as the type and scope of the implementation of the measures recommended by the Company or agreed with the Client. This applies even if the Client accompanies the implementation of coordinated plans or measures by the Client.


2.3 The Company shall provide the advice with care and diligence in accordance with the current state of the art and science. The Company shall, after consultation with the Client and if reasonable in the individual case, take into account general process descriptions, certain industry and scientific standards and, if applicable, specific regulations, methods and application practices of the Client, as far as specified by the Client.


2.4 The Company shall determine the place, time and manner of the consultation independently at its due discretion. If in individual cases the presence of the Company employees at the Client should be necessary, the employees are available for this purpose. The dates for this will be agreed between the Company and the Client.

2.5 As a matter of principle, the Company is not entitled or obliged to act as the Client’s representative vis-à-vis third parties, in particular to conduct negotiations or to make declarations of intent with effect for or against the Client. Exceptions require prior written agreement.


2.6 The Company is entitled, with the Client’s prior written consent, to engage third parties to assist it in the execution of the Consulting. The Client will only refuse his consent if his legitimate interests are at risk. The Client’s prior consent is not required if a company affiliated with the Company within the meaning of §§ 15 AktG et seq. assists in the execution of the Consulting.


2.7 The Company shall provide the Consulting within the time limits customary in the market. Dates and deadlines for the provision of Consulting services are only binding if and insofar as they are confirmed by the Company in writing in advance.


2.8 Compliance with dates and deadlines shall be subject to the timely receipt of all documents and information to be provided by the Client and the timely fulfillment of the Client’s cooperation obligations pursuant to Section 3.

3. Conclusion of Contracts; Formal Requirements

3.1 The Company’s offers are free and not binding. All statements regarding availability, prices, specifications, properties and/or features of the Software and the Services on the Company’s website or in the Company’s marketing information are merely for orientation and not binding. They do not constitute an offer.


3.2 The prices specified in the Company’s quotations shall only apply if the details, data or other information underlying the quotation and provided by and/or agreed with the Client are complete, correct and applicable and remain unchanged.


3.3 Purchase orders placed by the Client shall be deemed legally binding offers until a contract is concluded. An order receipt confirmation alone does not yet constitute an acceptance of an offer by the Company. An order shall only be accepted by the Company  if confirmed in writing (order confirmation), by delivery of the Software and/or provision of our Services. Any declarations and notices of legal relevance issued by the Client towards the Company after conclusion of the contract or agreement (e.g., setting of deadlines, payment reminders, notices of defects) are only effective if performed in writing. The Client agrees to check our order confirmation for correctness immediately. The Client also agrees to assert claims in respect of any deviations of the order confirmation from the purchase order towards the Company in writing without delay, but not later than three (3) Business Days after receipt. Otherwise, the contract shall be concluded with the contents of the order confirmation, including the product specifications to which reference is made in the Company’s order confirmation.

3.4 To satisfy the requirement of the written form within the meaning of these General Terms and Conditions , it shall also be sufficient to transmit an unsigned electronic document, an unsigned e-mail or to use either of the e-sign procedures used by the Company.


3.5 The agreement on the provision of the Solution and/or Software and/or the performance of Services concluded by way of purchase order and order confirmation, as well as these General Terms and Conditions  representing a part of the agreement reflect all agreements and covenants made between the Company and the Client. Any agreements or covenants made orally prior to conclusion of the agreement are legally not binding and shall be completely replaced by the agreement unless otherwise expressly agreed in writing by the Parties hereto.


3.6 Subsequent amendments and additions to the contract must be in writing in order to be valid. The Company is willing to implement subsequent changes requested by the Client, provided this does not entail any additional costs or delays in relation to the agreed consultancy services. Otherwise the Company shall prepare a supplementary consultancy offer within 14 days of receiving the written request for a change or an addition, in which the subsequent changes, additions, extra expenses and costs are taken into account. If the Client does not confirm this within 14 days of receiving the supplementary consultancy offer the changes shall not become part of the contract.

4. Use of employees, subcontractors and materials

4.1 The respective contract and any agreements made on the basis thereof do not establish an employment relationship between the Client and the Company. Subject to the provision in clause 4.4, the Services shall be performed exclusively by employees and freelancers of the Company (“Staff”). The Company shall be solely responsible for compliance with statutory and administrative obligations towards its Staff. Solely the Company shall conclude contracts and take measures to govern the relationship with Staff.


4.2 Solely the Company shall be entitled to give Staff instructions regarding the provision of the Services (in particular regarding their content, time, location, speed and execution as well as working conditions and hours), to select and otherwise organise Staff for the provision of the Services. Instructions from the Client to the Company shall be issued via the project manager(s) appointed by the Company.

4.3 The Company shall deploy trained, sufficiently experienced, professionally qualified and committed Staff according to the scope of performance and, unless otherwise agreed, provide all the materials required for the provision of the Services.


4.4 For the purposes of the provision of the Services the Company shall be entitled to commission subcontractors or other third parties to provide the Services without the Client’s prior consent. The provisions in clauses 4.2 and 4.3 shall apply by analogy.

5. Non-solicitation

5.1 The Client undertakes to refrain from poaching Staff deployed by the Company for the duration of the contract, regardless of whether they are employees, freelancers or other third parties. In the event of a breach of this non-solicitation clause the Client shall have to pay the Company a contractual penalty of EUR 30,000.  The assertion of further claims for damages shall remain unaffected thereby. In such a case the contractual penalty shall be set off against any further claims for damages.

6. Client's inability to perform the contract

6.1 If, after the conclusion of a contract with the Client, it should transpire that due to the latter’s financial situation the fulfilment of its contractual obligations is jeopardised (in particular upon stoppage of payments, filing of an application for the opening of insolvency proceedings, attachment and enforcement measures), the Company shall be entitled to refuse to perform the Services until the Client has paid the price in advance or provided adequate security, at the Company’s own discretion.

7. Handing Over and Installing the Software

7.1 The Software is provided to the Client as a (i) program copy for use on-premises, (ii) as download, (iii) preinstalled when appropriate hardware (IPC) is bought at the same time (iv) as software as a service (“SaaS”) or (v) preinstalled on an hosting or cloud solution.

 

7.2 The organizational and technical installation and configuration of the hardware and/or Software and its integration into the operating/system environment of the Client and/or third parties to which the Client sells machine systems (hereinafter referred to as the “End Client”), notably the establishment of connectivity and/or interoperability of the Software or hardware with the existing IT infrastructure and/or the sensors in the machines is not included in The Company’s scope of services and shall be sole responsibility of the Client (installation and configuration). Unless otherwise agreed with The Company, it is the Client’s sole responsibility to ensure that other hardware and software environment required for operation and use of the Software, including, but not limited to any required interfaces, is available and set up ready for operation, and he also ensures that in particular, bug fixes, updates, etc. are implemented by him in the other software within a reasonable time.

 

7.3 Before Software produced and/or distributed by The Company can be used, it must be technically activated by The Company; The Company’s Software is always assigned to a specific hardware (e.g., industrial PC, virtual machine, hosting space).

 

7.4 The Client will receive the Software in machine code form or source code. He shall have no claim for disclosure of the source code.

 

 

7.5 In the event that the Client makes the Software available to its End Client in accordance with the conditions in Section 8 of these Terms and Conditions , the Client shall be entitled to set up or have set up a new access for its End Client as an “End User”. In doing so, the Client shall provide the information requested about the End Client during the onboarding process completely and correctly and inform The Company that the End User is an End Client. In case the requested information is not provided completely and correctly, The Company will not be able to support the “End Client”.

 

 

7.6 The Client is obliged to stipulate in its contract with the End Client that (i) the End Client accepts the corresponding terms of use for the use of the Software, that (ii) the technical possibility of use of the Service by the End Client constitutes a service provided by the Client for the End Client on the basis of the contract concluded between the Client and the End Client, (iii) this does not establish an independent contractual relationship between the End Client and The Company for the provision of services and that (iv) all data and information made available on the Service are services provided by the Client to the End Client.

 

7.7 The Company will use the information requested for setting up the End Client’s access to verify the compatibility of the provision of the results of the Services to the End Client with the applicable export control and sanctions regulations and laws of the European Union (EU), the United States of America (US/USA) and other jurisdictions (hereinafter referred to as “Export Control Regulations”). The establishment of access to the Service Front-End for the End Client as well as the further maintenance and provision of access is subject to the proviso that the applicable export control regulations do not conflict with this. Should this be the case, The Company shall be entitled to refuse, withhold and/or discontinue the establishment and/or maintenance of access without any liability to the Client. In such a case, Section 14 of these Terms and Conditions  shall continue to apply.

8. Copyrights and Rights to Use the Software

8.1 The Software, including new program versions and releases (updates and upgrades), is protected by copyright. In the mutual relationship between the Parties hereto, The Company exclusively reserves all rights herein and in all the other documents and materials provided to The Company within the framework of conducting the contractual negotiations and performance of the contract or agreement (e.g., documentation). This shall also apply for working results obtained from the Services and from special programming performed by The Company by order of the Client.


8.2 The Company grants the Client the royalty-bearing, non-exclusive, non-sublicensable, non-transferrable right restricted in time to the period specified in The Company’s quotation to use the Software according to its intended purpose and subject to the provisions specified in this Section 8., unless otherwise agreed individually. The license period shall commence as of the time when the Software is (i) provided for download, (ii) supplied as a program copy or (iii) as of the time agreed for use via The Company’s server or third-party servers. The right to use the Software in accordance with its intended purpose may only be exercised by sufficiently qualified employees of the Client or End Client who are trained accordingly in handling of the Software and is allowed exclusively for the purposes of the Client’s own business or for the processing of internal business operations or transactions of End Clients in accordance with Section 8.5 below. An appropriate basic instruction for separate remuneration can be ordered with The Company by the Client. Training in the use of the Software which goes beyond the aforementioned basic instruction can also be ordered by the Client and will also be charged separately.


8.3 If the Software is supplied as a program copy for on-premise deployment, the Client is entitled to use the program copy within the framework of one license exclusively on one accordingly authenticated IPC or on one machine of the Client which is authorized by The Company within the framework of use according to the intended purpose (hereinafter commonly referred to as “Authorized Hardware”). The removal of the Software from the Authorized Hardware and its upload to a different hardware (“Hardware Relocation”) requires prior express consent in writing of The Company and can only be performed for payment of a processing fee. After such a Hardware Relocation, all licenses for the formerly authorized hardware shall become invalid and shall remain in force for the new authorized hardware after the completed reactivation. The right to use the Software according to the intended purpose shall be limited to the installation and configuration of the Software within the specified configuration options and its operation on the Authorized Hardware. The Client may copy, load, display, run and save the Software in the object code insofar as necessary for use according to the intended purpose. The Client may create a backup copy of the Software in accordance with the relevant legal regulations. The Client agrees to mark the copy as such.


The Client is not entitled to make modifications to the Software unless it is necessary for its use according to the intended purpose.


  • a) Such a necessity for modification is provided in particular, if (i) a defect must be rectified to be able to use the Software according to its intended purpose and (ii) The Company falls behind in schedule with rectification of the defect, seriously and finally refused the rectification of the defect towards the Client or if The Company is are not in a position to rectify the defect immediately for other reasons that are beyond The Company’s range of responsibility.
  • b) Notwithstanding that, modifications are only permissible if they are (i) absolutely necessary for rectification of compatibility issues in the interaction of the Software with other programs required by the Client and (ii) The Company is not ready or in a position to rectify them for a reasonable customary remuneration.
  • c) The Software may only be decompiled if the prerequisites and conditions specified in Section 69e (1) of the German Copyright Act (“UrhG”) are provided or transferred accordingly.
  • d) The Client may not entrust the aforementioned measures in accordance with this Section 8.3 to third parties who are competitors of The Company unless he can prove that the risk of disclosure of important corporate or trade secrets of The Company, especially pertaining to the function and design of the Software product, is excluded.
  • e) Unless otherwise permitted in accordance with mandatory legal regulations and pursuant to the aforementioned provisions, the Client is also not allowed to reverse-engineer or decompile the Software into other code forms. The same shall also apply to the compilation or disassembly of the Software or to other attempts to reconstruct the source code of the Software.

8.4 The following shall apply if The Company makes available the Software to the Client within the framework of a license for use of the Software according to its intended purpose as software as a service (SaaS): The license for use of the Software according to its intended purpose must only be exercised by separately authorized single users of the Client or by the End Clients. The use of the Software is subject to an access and authorization concept that is to be notified to the Client within reasonable time (process of registration in our systems with user name and password or the like). The Software is to be used exclusively online. It is not allowed to download the Software even if this could be technically possible for the Client; such a case shall be subject to the prohibitions of use applicable for the Software pursuant to this Section 8.

8.5 The right to use the Software according to its intended purpose which is granted to the Client also includes the right to grant a right to use the Software to End Clients in accordance with the provisions of this Section 8 (“Sublicense”). When granting sublicenses, the Client shall not be allowed to grant any further rights of utilization than those as agreed in this Section 8. and acquired by him in the individual case wherein our right to grant further sublicenses to the End Client shall be excluded, and the Client is also not entitled to use third parties as sub-distributors. The Client guarantees that the license terms of these TERMS AND CONDITIONS   are observed by the End Client and will consequently take all required measures. Within the framework of such measures, the Client agrees in particular, to conclude a reasonable license agreement and to ensure that all appropriate technical requirements and conditions for use of the Software are also provided in the environment of the end Client.

The Client agrees to compensate The Company for any damage and hold harmless and indemnify The Company from and against any and all costs and expenses (including, but not limited to the prosecution costs) arising from violation of The Company’s rights in the Software by the End Client or by a breach of legal regulations in distributing the Software by the Client to End Clients.

 

8.6 Unless expressly permitted in these TERMS AND CONDITIONS   or otherwise dictated by mandatory law, the Client is in particular not allowed to use the Software and/or the entirety or elements of the corresponding rights of use or other rights granted to him in accordance with these TERMS AND CONDITIONS   (including those contained in individual contracts concluded on their basis) to be used by third parties, passed on or made accessible to third parties or rented, lent, sold, sublicensed or otherwise transferred without The Company’s prior written consent.

 

8.7 Unless otherwise expressly agreed with The Company, the Client is not allowed to use the Software in order to directly or indirectly compete with The Company on the market with a business model similar to The Company’s one. The Client is not entitled to grant sublicenses to group-internal parent companies, affiliates or subsidiaries (intercompany transfer/transaction). In cases of doubt, the Client is to obtain a prior written approval from The Company.

 

8.8 The copyright notices, brands, trademarks, serial numbers and other features serving the program/software identification must not be removed, destroyed, modified or obliterated. The Client is not entitled to remove or bypass any mechanisms of the Software or parts thereof which protect the Software from unauthorized use.

 

8.9 The Company is entitled to fully or partially revoke the rights granted in accordance with this Section if the Client fails to pay the due license fees either as a whole or in part despite reminder and after expiry of a reasonable period for payment. The Company expressly reserves the right to assert further claims, notably the claim for damage compensation.

 

8.10 Using the Software for purposes other than those as in accordance with its intended purpose and/or in breach of other provisions of this Section 8. constitutes a violation of our rights in the intellectual property and represents a material breach of these Terms and Conditions. In all other respects, Section 21.2 shall apply. The Company’s further rights, for whatever legal reason, shall remain unaffected.

 

8.11 If The Company provides a new program version of the Software (including, but not limited to software patches, updates, upgrades, new releases/versions) to the Client within the framework of the warranty or as support services, for example, such a new program version shall similarly be subject to the relevant provisions of these General Terms and Conditions applicable for the Software.

The Client may hand over the new program versions of the Software provided to him to the End Client only after the new program versions have successfully passed a stress test under real conditions in the environment of the Client. Unless otherwise expressly agreed in writing, the costs for such a test shall be borne by the Client.

 

8.12 If The Company creates program add-ons for the Software at the Client’s special request (e.g. further functions for use), the Client will be granted a right to use these add-ons pursuant to the right obtained for the use of the Software.

Any and all intellectual property rights in such program add-ons shall be created exclusively to The Company benefit. As a rights-holder, The Company is entitled to exploit and use such program add-ons without limitations.

If such a creation of rights to The Company’s benefit is not possible for legal reasons, the Client herewith agrees to grant The Company an irrevocable, exclusive and royalty-free right to use and exploit any and all program add-ons created for the Client without limitations in respect of the time, nature or geographical extent of such use or exploitation. The Company is entitled without limitations to integrate the program add-ons into the existing software as an inherent program part. The aforementioned granting of rights also includes the right for processing, modification, copying, distribution and exploitation of any kind and the right to transfer rights for use and to grant sublicenses unlimited in time and content. If the Client is a joint author, he herewith waives his share of the exploitation rights in accordance with Section 8 (4) of the German Copyright Law (“UrhG”). Insofar as employees or agents of the Client are joint authors, the Client assures to have acquired any and all rights of use and exploitation from them and to have received a declaration of waiver in accordance with Section 8 (4) of the Copyright Law. The aforementioned granting of rights refers to the object code and source code and all intermediate results and documentation created in connection with the program add-ons, in particular development documentation.

9. Maintenance and Support Services

9.1 Maintenance and support services for the Client’s hardware and software environment (hereinafter referred to as “System Environment”) are furnished for the Software provided by The Company after separate commissioning and order confirmation.

 

9.2 The Client is obliged to specify the System Environment in detail and completely, in particular, the deployed hardware and the operating system, before The Company submits  a quotation. The Company provides the Services for the Software exclusively in the System Environment that was specified, described and used as a basis for the related quotations. The Company shall no longer be obliged to furnish the Services if the Client (a) modifies the System Environment (e.g., changes, replaces or upgrades the hardware, modifies and changes the operating system installed or the deployed web browser), thus limiting or disabling the operational functionality of the Software, or (b) if, due to a software update, the System Environment is technically no longer in a condition to ensure the operational functionality of the Software without limitations as initially advised to The Company (server capacities, etc.). In such a case, the payment obligations of the Client shall also rest. In such a case, The Company agrees to restore the operational functionality of the Software in the modified System Environment on the basis of a separate agreement and for separate remuneration by way of suitable and reasonable measures of adaptation. In this case, the service agreement concluded between The Company and the Client shall continue to be valid without changes after restoring the operational functionality. Should The Company and the Client do not come to an agreement about the restoration of the Software, The Company and the Client are entitled to terminate the service agreement without prior notice. The Company will do not furnish Services if the Software is used under field conditions other than those as specified by The Company or if the Software was modified by programming activities performed by the Client or by third parties.

 

9.3 The Company is also entitled to entrust subcontractors with the provision of the Services hereto after appropriate information from the Client.

9.4 The Company agrees to furnish the Services hereto initially for the Software in the software version/release as it is at the commencement of the agreement. Insofar as The Company supplies updates and/or upgrades for the Software, the Client is obliged to install them. The term ‘update’ within the meaning of this agreement shall refer to updates of the Software within one and the same version number (e.g., within the version designations v1.1., v1.2, etc.) which serve bug fixes and/or provide minor enhancements or improvements. The term ‘upgrade’ shall refer to updates of the Software across a complete main version number (“Major Release”) (version designations v1.0, v2.0, etc.).

 

9.5 The contents of the Services result from the Performance Specification “The Company Digital Solutions Maintenance and Support Services” as part of our Quotation. Adaptations of the Performance Specification shall only be binding for The Company if they are specified in the order confirmation.

 

9.6 The Services are performed via remote maintenance (“Remote Access”) through access to the Client’s system. The access is performed through a connection that is protected against unauthorized access by third parties. The technical details on how the Remote Access is to be performed will be notified to the Client together with The Company’s Quotation. The Client agrees to create the technical requirements for the Remote Access at his own expense and to maintain them permanently over the whole term of the service agreement. Services furnished directly on the site of the Client can be provided in individual cases on the basis of separate commissioning and for separate remuneration and with reimbursement of the costs.

 

9.7 Services can only be requested by the Client’s employees who have been specified by the Client towards The Company in writing (via e-mail) immediately after the order confirmation, with specification of the appropriate contact details (telephone numbers, e-mail addresses).

 

9.8 Unless otherwise agreed separately, the Client shall have no claim to the following services within the framework of a service agreement: (a) individual modifications and extensions of the Software, (b) Services for third-party software, (c) installation and implementation of the Software on the Client’s hardware or System Environment, (d) instructions and trainings of employees of the Client, and (e) rectification of errors arising in or occurring from the Client’s sphere of risks, including, but not limited to errors caused by improper or unqualified operation or by modifying the Software, by contamination of Software components with computer viruses or other malicious software, by using unsuitable or faulty data storage devices or hardware, etc.

10. Reservation of Rights; Secrecy / Confidentiality

10.1 The Company reserves any and all copyrights and intellectual property rights in all documents, materials and other items handed over by The Company to the Client (e.g., offers and quotations, catalogs, price lists, cost estimates, all the analyses, expert opinions, reports, organisational plans,  technical plans, technical data, methods, lists, drawings, illustrations, calculations, product descriptions and specifications, samples, models and other documents, materials, data and/or information in physical or electronic form within the meaning of Section 2(1) of the German Act on the Protection of Business Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG). Except where dictated by mandatory law or specified otherwise in these Terms and Conditions or in the contract, the Client must neither disclose nor allow access to the aforementioned items or their contents to third parties, nor exploit, utilize or modify them or their contents without The Company’s prior consent. The Client agrees to use such items and materials exclusively for the contractually agreed purposes and must return them to The Company in their entirety at The Company’s request and also destroy (or delete) any existing copies (including, but not limited to electronic copies) insofar as they are no longer required by him in his ordinary course of business and in accordance with legal archiving requirements.


10.2 The Client and The Company agree to treat the confidential information received from the other Party in the course of performance of the agreement confidentially and to use the same care as with reference to The Company’s own trade and business secrets of similar importance, but at least appropriate technical and organizational measures to a reasonable extent to maintain the confidentiality. Confidential information shall include all operational and trade secrets of the Parties hereto, as well as any and all information and data in physical or oral form, including, but not limited to development plans, product development and/or product design plans, information about hardware, databases, software that is currently in use or is going to be manufactured, source codes and algorithms, as well as documents or knowledge exchanged by the Parties hereto in connection with this agreement.

If unauthorized access, unauthorized use, illegal copies, unauthorized disclosure or other illegal activities with reference to the confidential information of the party disclosing the confidential information are noticed within the range of responsibility of the party receiving the confidential information or any of the aforementioned activities become known to the disclosing party, the receiving party agrees to inform the disclosing party via e-mail immediately and will immediately take all reasonable measures and raise the appropriate funds to cure the violation. The obligation to maintain confidentiality shall not apply to confidential information that:

  • has already been disclosed by the disclosing party in writing towards the receiving party;
  • has already been known to the receiving party prior to its disclosure without violation of the obligations to maintain confidentiality;
  • is or becomes part of the public domain through no act or omission of the receiving party, provided that the confidential information is already deemed part of the public domain, as merely parts thereof are or become part of the public domain;
  • is lawfully divulged, disclosed or made accessible to the receiving party by a third party without obligations to maintain secrecy or confidentiality unless the third party does not violate his own obligations to maintain secrecy or confidentiality according to the knowledge of the receiving party;
  • has been independently developed by the receiving party without use of and reference to the confidential information or pursuant to one of the aforementioned exceptions; or
  • is required to be disclosed in accordance with a binding regulatory or judicial order or mandatory legal regulations provided that the disclosing party was informed of the disclosure in writing.

 

The party invoking such an exception must prove the existence of the appropriate prerequisites. The aforementioned obligations in accordance with this section shall survive for a period of 10 (ten) years after completion of the last purchase order concluded between the Parties hereto in accordance with these General Terms and Conditions .

11. Prices, Invoicing, Reimbursement of Costs

11.1 The Software and/or Services are provided to the Client at the license and Service fees and at the rates specified in The Company’s order confirmation. Details about rates and prices are part of The Company’s Quotation.

Insofar as the Services are charged on the basis of the actually incurred costs, the appropriate activities will be specified with the required times in an activity report at the end of a project or upon completion of a work package and handed over to the Client.

 

11.2 All prices are to be understood as net prices plus legally stipulated value-added tax. The prices are to be paid without deduction, plus statutionarily regulated value-added tax, with exception of the withholding tax that in accordance with the relevant law is to be withhold by the Client from the remuneration to be paid (income tax). The Client and The Company will support each other in ensuring that the amount of the withholding tax to be withhold by law or by virtue of agreements for avoidance of double taxation is reduced to a minimum (or, ideally, to a complete exemption from the withholding tax). If required by the governing law, the Client will withhold the appropriate taxes and pay to the relevant tax authorities in accordance with the relevant regulations. In this case, the Client agrees to submit the original of the certification confirming the tax withholding (tax certification) to The Company and support The Company in reimbursement or setting-off of the withhold taxes in accordance with the governing law.

 

11.3 The license and Service fees to be paid by the Client shall be due net without deduction in accordance with the terms of payment specified on the invoice. The Company is entitled at any time and at The Company’s own discretion to request advance payment.

 

11.4 The following additional stipulations shall apply for the Services:

In the case of Services subject to an agreed minimum period, The Company is entitled to verify the agreed net prices once (1x) per agreement year, beginning from the second year of the agreement (example: With commencement date on April 1st of a year, the first agreement year commences on April 1st of that year and ends on March 31 of the following year), and to increase them without specifying grounds by max. 10% with at least 4 weeks prior notice period (via e-mail, letter). The information about the amount of the increase and the resulting new prices due by the Client will be provided via e-mail or letter.

 

11.5 Journey and business expenses and, where applicable, overnight expenses incurring in conjunction with or arising from Services that The Company does not perform at its place of business in Heidelberg (Germany) are charged separately. Journeys by car are charged in accordance with the quotation, journeys in public means of transport (bus, railway, airplane) and overnight expenses (mid-range price category at the site concerned) are charged on the basis of the actually incurred costs; the business expenses/daily allowance are charged in accordance with the valid maximum tax-free rates. In addition, in the case of journeys with public means of transport and with the overnight expenses, a fixed sum of 15% is added as internal expenses to the appropriate net value of the expenses incurring by the appropriate means of transport and/or by overnight stay.

The Company is entitled to charge the times of journey of its employees performing the Services at the full hourly rates. The basis for the charging is The Company’s place of business in Neckargemünd (Germany).

 

11.6 The Client may only offset outstanding claims against The Company’s claims if they are uncontested or recognized by declaratory judgement. He is only entitled to withhold payments insofar as any counterclaims from the appropriate contractual relationship are asserted.

 

11.7 In case of delayed payment or if, after a contract or agreement on provision of the Software or Services is entered into, it becomes apparent that The Company’s entitlement to payment of the appropriate license or Service fees is jeopardized by the Client’s inability to perform, The Company is entitled to (i) refuse to render the appropriate deliveries and/or services or to request a security from third parties (e.g., bank guarantee from a major German bank) for resumption of the deliveries and/or services, and to revoke the appropriate delivery contract in accordance with the relevant legal regulations (Section 321 of the German Civil Code (BGB)), or (ii) revoke the contract with immediate effect and/or terminate the contract in writing for cause. In the aforementioned cases, The Company is similarly entitled to change the agreed mode of payment unilaterally to advance payment by way of an appropriate written notification or to demand a security from third parties (e.g., bank guarantee from a major German bank) for the appropriate delivery and/or service. The legal regulations regarding dispensability of setting a period for performance shall remain unaffected.

 

11.8 Unless otherwise provided in the offer, the Company will invoice the Client at the end of each month for the remuneration and expenses incurred. The Company is entitled to issue the invoice in electronic form. Each invoice shall contain a list and explanation of the activities performed in the respective billing period and their respective time scope

 

11.9 The Client undertakes to transfer the remuneration and expenses to the account of the Company specified in the invoice within 14 days after receipt of a proper invoice.

 

11.10 The Client shall be in default without a reminder. From the beginning of the default, the Client shall be charged interest in the amount of 9 percentage points above the base interest rate, unless a higher interest rate results from statutory regulations.

 

11.11 The Client may only offset against claims of the Company or assert a right of retention if the Client’s counterclaim is undisputed or has been legally established.

12. Responsibilities of the Client

12.1 The Client agrees to support The Company in furnishing the Services in accordance with the contract/agreement and in accordance with the provisions below by way of appropriate services of collaboration and provision of equipment.

 

12.2 Insofar as the obligations of collaboration and provision of equipment do not already result from these Terms and Conditions, from the appropriate offer, quotation, purchase order and/or order confirmation, The Company will remind the Client within a reasonable period of the type, extent, times and all the other details of the obligations of collaboration and provision of services to be performed by him and request him to do so. The Client agrees to perform his obligations of collaboration and provision of equipment without delay and free of charge. This shall apply in particular, to any and all information that The Company requires for invoicing of its Services. The Client is solely responsible for the data acquisition and transmission by way of the Authorized Hardware and agrees to ensure in particular, that the data transmission is performed in the specified data formats and via the specified interfaces. Unless the data hosting is provided by The Company in accordance with an appropriate contract or agreement, the Client shall also be responsible for saving and backup of the collected data.

 

12.3 After an appropriate order, The Company can furnish fee-based support services in terms of compatibility of the Software. In case of incompatibilities of the Software with the existing software and/or hardware environment, the Client agrees to make acceptable settings / changes in the configuration on all devices involved to rectify the incompatibility. The Client also agrees to make acceptable settings and/or changes in the configuration in accordance with The Company’s instructions to restore the operational functionality of the Software in order to rectify faults and/or errors in his system, notably on the hardware involved, including, but not limited to the operating software. In all cases, the Client agrees to support The Company in the troubleshooting. In particular, the Client agrees to grant The Company sufficient remote access for this purpose to the software installed on the Client’s premises. Furthermore, the Client agrees to grant The Company’s employees on-site access to the Software during the Client’s ordinary office times as necessary. On-site visits shall only take place after The Company has given consent and with observance of reasonable safety regulations of the Client; the additional expenditure resulting for The Company (expenditure of time for personnel, call-out fees, expenses of the journey, including, but not limited to overnight expenses) are to be remunerated by the Client separately after an appropriate information from The Company. The Client agrees to allow The Company to use his rooms, his hardware, software, and telecommunication systems, insofar as necessary and required to render the Services.

 

12.4 The Client agrees to take reasonable precautions for the case that the Software does not operate properly, whether in part or as a whole. He agrees to carefully test the Software for its fitness for the purpose intended by him before using it in operation. Furthermore, he agrees to take measures representing the latest state of the art to protect his data and IT infrastructure, including the Software and IPCs which were provided to him, against loss, destruction and unauthorized access by third parties and to ensure the compatibility.

The Client agrees to always develop his System Environment technically at his own expense in such a way that the Software can also be operated and applied in its full functionality after it has been updated.

 

12.5 Insofar as The Company grants the Client access to its systems or to third-party systems, the Client agrees to take the appropriate measures required for protection and security of the access data and passwords. In particular, the Client agrees to ensure that the access is only granted to sufficiently qualified, reliable and correspondingly authorized employees. The Client will also take appropriate safety measures against access by unauthorized persons and for protection against misuse.

 

12.6 Insofar as The Company is not hindered from providing its contractually agreed Services by the fact that the Client did not provide his contractually agreed services of collaboration and provision of equipment, The Company will not be responsible for the resulting defects or deficiencies in the performance. The agreed deadlines will be postponed reasonably. The duration of the extension is to be calculated according to the period of failure to provide the aforementioned services of collaboration and provision of equipment.

 

12.7 The Client must no longer use the software beyond the license period. The Client shall delete software installed on his own hardware (including any backup copies) in the current version/release without delay. The Client is expressly not allowed to make and/or retain copies. If the Client has left the software to third parties for use, he must also obligate the appropriate third party by way of contractual obligations to do so. Upon our request, the Client agrees to confirm in writing that he has met the aforementioned obligations and responsibilities to their full extent.

 

12.8 In particular, the following obligations to cooperate shall apply in connection with the Services:

  1. a) The Client agrees to take all reasonable measures required to determine, localize and document faults, errors and bugs in the Software. The Client will furnish the following items to the contractor: System logs, memory dumps, relevant input and output data, intermediate results and test results, and other relevant documents suitable to illustrate the fault, error or bug concerned.
  2. b) The Client will specify a qualified employee to act as a person responsible for the system and to be available for any and all questions, and for explanation purposes in particular, in conjunction with occurring faults. The Client ensures in particular, that the person responsible for the system or his representative can be reached in case of faults during the service hours and, if emergency service was agreed separately, also outside these times. The Client also ensures that a direct exchange between The Company and the employee of the Client at which the fault occurred will also be possible within the framework of the fault analysis.

13. Delivery Time and Times for Provision of the Services; Late Delivery; Force Majeure

13.1 Delivery times or deadlines not expressly agreed as binding are exclusively non-binding specifications. The commencement of an agreed delivery time shall be regarded as observed as of the time when the Software is provided to the Client or when the Software is ready for operation after commissioning by The Company on the Client’s premises.

 

13.2 A claim for use of the Software within the framework of an SaaS model shall only be provided within the framework of the current level of technology. The software will be available min. 97% on average per month (except for maintenance work and improvements).

 

13.3 Unless expressly excluded, The Company is entitled to perform partial deliveries and partial services.

 

13.4 Cases of force majeure and similar unforeseeable events (e.g. strike, governmental actions or regulations, external events outside the company which lie beyond The Company control) entitle The Company to extend the delivery times and times of provision of the Services to a reasonable extent. In such cases, the Client shall have no claim to request damage compensation from The Company.

 

13.5 The time regarded as the time of occurrence of late delivery attributable to The Company shall be determined in accordance with the relevant legal regulations. In any case, however, a written reminder from the Client to The Company management is required. 

If damage arises for the Client due to late delivery attributable to The Company, he may request compensation for delayed completion. It shall amount to 0.5% of the net price per week of delay, but shall not exceed 5% of the value of the total price for the goods or services which, for the reasons of delay, cannot be used in accordance with the time schedule or stipulated in the contract. The request for compensation for late delivery is to be submitted in writing and shall be binding. If the Client decides on requesting a compensation for late delivery, he shall have no further claims for replacement of the damage incurred by him from the late delivery. In lieu of the compensation for late delivery, the Client may claim the damage actually incurred from the late delivery in accordance with Section 16 below.

 

13.6 The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’).  The Client acknowledges that the Third Party Services will be governed by that third parties’ Terms and Conditions  and that The Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.  

The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same. 

14. Export Control

14.1 The Client agrees to observe the relevant export control and sanctions regulations and legislation of the European Union (EU), United States of America (USA), and other legislations (“Export Control Regulations”).

The Client agrees to inform The Company in advance and to make available all information to The Company which is required for The Company to observe the export control regulations, in particular if products, technology, software, services or other goods (“The Company Goods”) are ordered for use in conjunction with

  • a) a country or territory, a natural or legal person who/which is subject to the restrictions or sanctions of the EU, USA or other relevant export control and sanctions regulations, or

  • b) the construction, development, production or use of military or nuclear goods, chemical or biological weapons, rockets, space vehicle or aircraft applications or the corresponding carrier systems.

14.2 The Client hereby agrees that:

  • a) The Company is to be treated as a US citizen within the meaning of the stipulations of the US Department of Treasury’s Office of Foreign Assets Control (OFAC) with reference to Iran (ITSR) and Cuba (CACR), and

  • b) The Company Goods are not – neither directly nor indirectly – to be used in such or another country or territory which is subject to the restrictions or sanctions of the US government without prior consent from the appropriate US governmental authorities, and are not to be delivered, exported, re-exported, sold or otherwise transported there. This shall also apply for supplies and/or services to natural or legal persons indicated on a sanctions list of the US government.

  • c) The performance of the contractual obligations by The Company is provided with the reservation that it is not in conflict with the appropriate export control regulations. In such cases, The Company is entitled in particular, to refuse or withhold the performance of its contractual obligations without arising any liability towards the Client.

  • d) The Client agrees to submit to the supplier an end-user undertaking (EUU) form upon request of the supplier from which the end use and end user of the goods to be delivered hereunder result. The wording of the EUU will be provided by the supplier.

15. Warranty

15.1 The Company warranty for the Software and Services provided to the Client shall be governed in accordance with the relevant legal regulations unless otherwise agreed in these General Terms and Conditions  and insofar as no additional provisions are agreed upon herein.

 

15.2 The Company guarantees that the Software licensed by The Company to the Client has, upon the passing of the risk, the quality agreed between the Parties hereto. Unless otherwise expressly agreed in writing, the quality of the software finally results from the specification of services and product description in The Company;s quotation and/or documentation (where provided). The Company has no influence on the quality of the data arising and collected during operation of the machines for which the Software is used. Before the data are acquired, they are not checked separately, neither with reference to their content and scope, nor for their quality, completeness, reliability and/or correctness. The Software is merely intended as support or aid and neither intended as a substitute for an independent check or verification, nor replace a critical judgement of the Client whether and which organizational and technical measures are to be taken in respect of the use and operation of the machines, systems, installations, and production processes.

 

15.3 The no-fault liability within the meaning of Section 536 a (1) of the German Civil Code (BGB) for defects which already existed in the Software at the time of conclusion of the contract shall be excluded.

 

15.4 Claims for defects can only be asserted if the defect is reported in writing within one week after it has been detected for the first time. Defects are to be notified by way of a comprehensible description of the error indications. The notice of defects is intended to facilitate reproduction of the error. The Client’s duties stipulated by law to perform an incoming goods inspection and to report defects immediately on receipt of the goods shall remain unaffected.

 

15.5 The Client is not entitled to assert claims or rights for defects in case he withheld a considerably high amount of the remuneration because of the defect.

 

15.6 Claims for defects both regarding the Software and the Services shall become statute-barred in 12 months, except for intent. Insofar as The Company debugs or rectifies the defects in the Software or parts thereof or replaces it within the framework of warranty, the limitation period shall expire with expiry of the limitation period for the originally delivered Software. In case of minor or insignificant defects in the Software, The Company can provide either a workaround in lieu of defect rectification or replacement delivery and only finally rectify the defect by way of delivery of a standard update later, but in a timely manner. Minor or insignificant defects are defects that do not or not significantly impair the use of the Software according to its intended purpose.

The Client’s right to reduce the remuneration, to rectify the defect himself or to cancel the contract shall be excluded for the period in which the defect is rectified. If the defect rectification fails several times due to a major or serious defect and if it is not acceptable for the Client to wait longer, he is entitled to reduce the remuneration or to withdraw from the contract. Failure of rectification of the defect exists in particular, if the defect cannot be rectified which is declared by The Company to the Client in writing or if defect rectification by The Company is expressly denied without justification.

 

15.7 The Parties hereto agree that no liability for defects shall apply if the Client does not fully perform his obligations to cooperate and responsibilities as agreed in the appropriate time schedule unless the Client proves that such circumstances are not the cause for the notified defect.

 

15.8 Claims of the Client based on material defects or defects as to the quality of the Software provided to him shall be excluded if

  • a) The software is modified by the Client in a manner which is in conflict with the stipulations and provisions of these Terms and Conditions unless the Client can prove that the defect would also have occurred without the modification made by him;
  • b) The defect is based on the use of unsuitable formats or insufficient quality of the Client’s/End Client’s data;
  • c) The Software is used in an environment that does not meet the system requirements of the Software and whose deployment was not authorized by The Company;
  • d) The defect is due to an unauthorized action (including, but no limited to faulty inputs) or omission of a required measure or action or the Software was used or operated improperly, notably in a manner other than as recommended by The Company (e.g., by failure to update the Software by way of new program versions or releases or failure to observe the required configurations or attempts to perform unsupported processes);
  • e) The Client fails to notify a defect immediately which occurred during the term of the agreement and The Company is therefore not able to rectify this defect.
 
15.9 If a third party asserts claims against the Client which are based on the infringement of existing patents, utility models, design patents or copyrights (hereinafter referred to as “Intellectual Property Rights” or “IP Rights”) by the Software and if the Client is therefore prohibited to use the Software due to a deliberate or negligent infringement of IP Rights by The Company or if such a prohibition can already be foreseen from The Company’s point of view, The Company shall be liable towards the Client as follows:
  • a) The Company will indemnify and hold harmless the Client from and against any claims for compensation imposed on the Client with final and legally binding effect and from the related expenses which can be reimbursed in accordance with the relevant legal regulations and will at The Company discretion and The Company own expense (i) obtain a right to use the appropriate software or (ii) replace the appropriate software or parts thereof or modify it such that no IP rights are infringed and the software nevertheless corresponds mainly to the contractually agreed quality. If none of the aforementioned alternatives is possible at technically or economically reasonable conditions, The Company and/or the Client are/is entitled to terminate the license agreement.
  • b) The Client agrees to support The Company in all damage mitigation measures to a reasonable extent.
  • c) The Company aforementioned obligations shall only exist insofar as (i) the Client informs The Company in writing of the assertion of such claims comprehensively and without delay, (ii) all judicial and extra-judicial defensive measures and negotiations for settlement are reserved to The Company or are conducted with The Company by mutual written agreement, (iii) the Client immediately makes The Company accessible all desired information to be able to assess the situation or defense the claims and grants The Company reasonable support.
  • d) If the Client continues to use the Software although a claim based on the infringement of third-party rights has already been asserted against him, The Company responsibility shall be limited to the status as of prior to the assertion of the rights insofar as there are no other reasons for exclusion.
  • e) All claims on the part of the Client shall be excluded if the infringement of Intellectual Property Rights is caused by specifications of the Client, by applications that could not be foreseen by The Company or by the fact that the Software is modified by the Client or a by third party commissioned by him or if it is used together with products not delivered or not authorized by The Company unless such an infringement of IP Rights could have also be caused without such an application, modification or use. The Client agrees to hold harmless and indemnify The Company from and against all such claims.
 

15.10 The provisions of this Section 15 shall also apply if the Software is provided by the Client to End Clients within the framework of the use according to its intended purpose and pursuant to the following additions:

  • a) The Client shall be solely responsible towards his end Clients for the installation, configuration and maintenance and for the provision of level 1 and level 2 support. This shall include, but not be limited to the initial technical check and analysis of problems, the search for problems occurred in the past, determination and provision of available bug fixes, corrections and workarounds, as well as onsite support by sufficiently qualified and trained employees of the Client where necessary. The Client agrees to document and, upon request, to prove the aforementioned measures, with handing over of the relevant documents.
  • b) If, however, it is revealed in the opinion of the Client that after failure of the aforementioned measures there is a defect in the Software provided to an End Client, then the Client is entitled to exercise the warranty rights provided to him in accordance with this Section 15.
  • c) Notification of the defect and communication with The Company in the course of error rectification must always be entrusted to sufficiently qualified employees of the Client with appropriate training in handling of the Software. The Company is not obliged to receive and process inquiries, complaints or notices of defects from End Clients.
  • d) Insofar as a check performed by The Company reveals that a defect is present, the provisions of this Section 15 shall apply with the proviso that The Company will supply a new program version/release of the Software to the Client in which the defect is corrected, and that the Client himself takes appropriate measures in the form of level 1 and/or level 2 support (in accordance with our technical and subject-specific recommendations). The Company is only obliged to take direct measures towards End Clients if the defect rectification requires measures in accordance with level 3 support. The Parties hereto agree that The Company has no direct responsibility towards the End Clients, that the Client remains primary contact person for the End Clients and The Company is not obliged to perform visits on the End Client’s premises free of charge.

16. Liability

16.1 Unless otherwise results from these Terms and Conditions, The Company shall be liable in case of violation of contractual and non-contractual obligations in accordance with the relevant legal regulations.

 

16.2 The Company shall be liable without limitations, irrespective of the legal grounds, for damages and the reimbursement of futile expenditure arising from a material breach of duty which is attributable to intent or gross negligence on The Company part or on the part of one of our legal representatives or agents.

 

16.3 In case of merely simply or slightly negligent breaches of duty by The Company or one of The Company’s legal representatives or agents, and subject to any reduced extent of liability in accordance with legal regulations (e.g., regarding the standard of diligence exercised in our own affairs), The Company shall only be liable

  • a) – albeit without limitations – for damage from injury to life, body or health / for the reimbursement of futile expenditure;
  • b) for damage / the reimbursement of futile expenditure arising from the violation of material contractual obligations. Material contractual obligations are those obligations whose fulfilment is imperative to actually enable proper performance of the contract and upon which the Client relies and may regularly rely. The amount of liability in such cases is, however, limited to the amount which is typical for such contracts and was foreseeable upon conclusion of the contract.
  • c) in case of loss of data, exclusively for the damage that also occurred if the Client had saved his data in a proper manner and at the intervals that correspond to and are reasonable for the significance of the data; if The Company also assumed hosting for the Client, the liability shall apply in accordance with the preceding paragraph b) in lieu.
  • d) The limitations of liability resulting from b) and c) shall not apply if The Company fraudulently concealed a defect, assumed a guarantee for the quality of the Software and/or hardware or if The Company assumed a risk of procurement. Furthermore, any compulsory legal liability, notably such as arising from the product liability act, shall be unaffected.
  • e) Penalties and liquidated damages to be paid by the Client to third parties in connection with software and/or hardware delivered by The Company can only be asserted by the Client as damage compensation subject to all further prerequisites if this is expressly agreed with The Company in writing or the Client notified The Company of this risk in writing before The Company concluded the contract with him.
  • f) In case of any damage and loss to be compensated by The Company, the Client is obliged to notify The Company in writing without delay or else to enable The Company to record the situation.

 

16.4 Contractual and non-contractual claims for compensation for damage/claims for reimbursement of futile expenditure of the Client which are based on a defect of the Software and/or Services shall become statute-barred in 24 months after provision of the Software or Service unless a longer limitation period is mandatorily specified by law. Both claims for compensation for damage which are raised by the Client in accordance with the product liability act and claims in cases if The Company fraudulently concealed a defect shall become statute-barred with expiry of the legally stipulated limitation periods.

 

16.5 Insofar as The Company liability in accordance with the aforementioned Terms and Conditions  is excluded or limited, this shall also apply for the liability of The Company  entities, legal representatives, employees, and agents.

17. Other Limitations of Liability

17.1 The Company not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at The Company’s discretion) The Company’s price list applicable from time to time.

 

17.2 The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by The Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of The Company’s price list applicable from time to time at The Company’s discretion. 

 

17.3 The Company shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and Google analytics in accordance with the guidelines applicable to the relevant search engines. However, The Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond The Company’s control and reserves the right to make changes to Services as a result of the same. In addition, The Company shall not be liable for other changes or discontinuation of search engines.

17.4 The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, The Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like. 

 

17.5 The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.

 

17.6 If the Client does not implement some or all of the The Company’s recommendations, The Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.

18. Guarantee

18.1 Data, information and details provided in (offline and online) The Company’s catalogs, publications, advertising brochures, other general information and/or offers and order confirmations shall at no time be deemed to constitute a guarantee. The granting of a guarantee by The Company must be performed in writing and expressly be designated as such.

19. Data Protection

19.1 The Parties hereto agree to observe the data privacy regulations applicable to them. The Parties also agree that The Company will not be granted access to personal data when performing contracts or agreements, neither in the systems of the Client, nor in those of the End Client. The Client will ensure by taking the appropriate measures that such a possibility of access is excluded. In case of system modifications, the Client will check whether it requires processing of personal data or the possibility of access to such data by The Company can no longer be excluded.

19.2 If the Client is obliged in accordance with this agreement to provide The Company  contact details of his employees, he agrees to ensure the appropriate prerequisites in terms of data protection; in particular, he is obliged to document the legal basis for permission to collect personal data of his employees.

 

19.3 To ensure the requirements in terms of data protection, the Parties hereto agree to conclude an agreement for order processing in accordance with The Company’s template where necessary.

20. Termination; Legal Consequences

20.1 Either party may terminate this agreement at any time by giving not less than 90 days notice in writing to the other party. 

 

20.2 Where the Contract provides for a retained fixed term monthly commitment for work (e.g. 12 months) it shall renew automatically for a further term of one month at the end of each month  unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the next full  month  by giving the other party at least 90 days’ written notice to expire at the end of that Contract term.

 

20.3 Unless otherwise specified in the purchase order and order confirmation, a termination for convenience of the agreed licenses and/or the ordered Services shall be excluded during the specified term of the agreement on provision of the Software or Services. Any contract on provision of the Software and Services shall automatically end with expiry of the agreed term.

 

20.4 The right of both Parties hereto for termination without prior notice on important grounds shall not be affected. An important ground is provided in particular,

  • a) If the Client ceases or threatens to cease his business operations, if insolvency proceedings are applied for or opened or foreclosure is initiated against the Client because of insolvency;

b) In case of breach of a material obligation of the contract or agreement and if the violation of the obligation was not cured at all or else not cured within the specified period despite written reminder with specification of a reasonable deadline; no reminder is required if the confidence in further proper performance of the contract or agreement has already been shaken by the first violation of obligations to such an extent that it can no longer be restored (e.g. in case of an intentional or grossly negligent breach of the license terms of these General Terms and Conditions  by the Client); this provision shall not apply in the cases mentioned in Section 13. above since this Section contains a specific remedy for such cases.

20.5 Any termination shall only be effective if performed in writing.

 

20.6 For the avoidance of doubt, the Parties hereto agree that the provisions regarding confidentiality and secrecy (Section 10.), the obligations of the Client to delete the Software provided to him and any copies thereof (Section 12.7), the rights pertaining to the data obtained from the machines (Section 18.) and the provisions for protection of the Software and property rights in program add-ons (Section 8.) shall survive the termination of this agreement.

 

20.7 Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc, from websites without undue delay. If the Client fails to do so, The Company shall be entitled to invoice the Client in line with its then current Terms and Conditions  for subsequent Services without such invoicing amounting to a waiver of The Company’s right to terminate the Contract.

 

20.8 If the Client has duly terminated the contract, but the Company has already incurred expenses for the preparation or execution of the consultation, the Client is obliged to reimburse the Company for these expenses.

21. Open Source

21.1 The data acquisition and evaluation software comprises open-source components. The appropriate license terms, as well as the required information and hints will be provided either within the framework of providing the Software or by way of accompanying documentation in analog or digital form.

22. Miscellaneous

22.1 The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and The Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.

 

22.2 The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.

 

22.3 During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by The Company to work on the Services.

 

22.4 The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.

22.5 If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.

 

22.6 Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers. 

 

22.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.

 

22.8 All notices must be in writing to Studio Sottile, Am Schänzel 9, 69151 Neckargemünd (Germany) or such address as is advised by The Company.

23. Final Provisions

23.1 All legal relationships, contracts and agreements beween the Company and the Client shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

23.2 The Client may not assign the rights and obligations that are incumbent upon it in connection with the Services to third parties, in whole or in part, without the prior written consent of the Company.

 

23.3 Place of performance and jurisdiction shall be Heidelberg (Germany).

 

23.4 Any amendments to these General Terms and Conditions  discussed between The Company and the Client shall only be binding if performed in writing. This shall also apply to any waiver of this requirement of written form. Section 3. 4. shall not be affected.

 

23.5 If the Company is prevented from fulfilling its contractual obligations due to force majeure, such as war, terrorism, riots, natural disasters, fire, epidemics or other unforeseeable circumstances for which the Company is not responsible, such as strikes or lawful lockouts, operational or transport disruptions, the agreed performance time limits and performance dates shall be extended by the same amount of time as the obstruction plus a reasonable lead time. 

The Company shall also not be responsible for the aforementioned circumstances if they occur during an already existing delay. The Company shall notify the Client of the start and likely end of any such circumstances as soon as possible. If the obstruction lasts six weeks or longer, either party may terminate the contract without notice.

 

 

23.6 If any provision of these Terms and Conditions or part thereof shall to any extent be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the Terms and Conditions. The Parties hereto already now agree that they will endeavor to find amicably an effective substitute which comes as close as possible to the intended, legal and economic purpose of the provision that became invalid or unenforceable.

 

23.7 These General Terms and Conditions  are drafted in English. In case of discrepancies or contradictions between the English and a translated version, the English version shall prevail.

End of Document