General Terms and Conditions (“GTC”) of sk datenkultur GmbH for the purchase and customization of standard software
§ 1 Scope of application
- The following General Terms and Conditions shall apply between you (“Customer”) and us, the company sk datenkultur GmbH, Friedrich-Eggers-Straße 35, 22880 Wedel, HRB 17351 Pinneberg Local Court (“Contractor”). They apply to the acquisition and adaptation of the contractually designated standard software (hereinafter referred to as “Software”) by the Contractor.
- The Customer’s terms and conditions shall not apply, even if the Contractor does not separately object to their application in individual cases. Even if the Contractor refers to a letter that contains or refers to the Client’s terms and conditions, this shall not constitute an agreement to the validity of those terms and conditions.
- The contracting parties shall agree on the details in the respective contract. In particular, the exact designation of the standard software as well as the services owed by the Contractor shall result from the contract.
§ 2 Service provision
- The Contractor shall perform the services agreed under the Contract in sections.
- At the request of the Customer, the Contractor shall introduce the Customer’s employees to the use of the Software against payment and, if necessary, provide training.
- After completion of a service section, the Contractor shall inform the Client thereof and make the service results available to the Client for review and approval.
§ 3 Project management
- Each of the contracting parties shall appoint a project manager for the duration of the project. The realization of the project shall be coordinated between the project managers. The project manager of the Customer shall be appointed in writing to the Contractor within a period of one week after conclusion of the contract. The project managers shall jointly review the progress of the project at least once a month.
- Insofar as decisions cannot be made at the level of the project managers, they shall be made in a project steering committee. This project steering committee shall include a member of the management of both sides or another employee of the respective contracting party who is authorized to make decisions for this procedure. The project steering committee shall meet at the request of one of the project managers. Votes may also be taken by telephone. All decisions shall be recorded in writing and signed by the members of the Project Steering Committee.
- Agreed changes to the services shall be documented in writing by the Customer’s project manager and confirmed by the Contractor. The confirmation shall be made in writing.
§ 4 Cooperation
- The Parties shall cooperate in a spirit of trust. If a contracting party recognizes that information and requirements, whether its own or those of the other contracting party, are incorrect, incomplete, ambiguous or impracticable, it shall notify the other party of this and the consequences it recognizes without delay. The parties shall then seek and endeavor to achieve a solution in accordance with their interests, if necessary, in accordance with the provisions on changes in performance.
- The Customer shall support the Contractor in the performance of its contractually owed services. This shall include, in particular, the timely provision of information, of expert employees, of means of communication and connections as well as of hardware and software and the making available of premises, insofar as this is necessary. The Customer shall instruct the Contractor in detail with regard to circumstances to be observed during the Contractor’s work on the Customer’s premises and technical equipment. The Customer shall cooperate at its own expense.
- Furthermore, the Customer shall take reasonable precautions to maintain its business operations in the event that the services to be provided by the Contractor and which are important for the Customer’s business operations are not available at short notice.
- The Client assumes as an independent obligation to provide the cooperation services individually agreed in the contract.
§ 5 Dates
- Dates for the performance of services may only be promised by the project manager or the management on the part of the Contractor. Deadlines shall be set in writing. This obligation may only be deviated from if the written form is observed.
- The Contractor shall notify the Customer of any delays in performance. The Contractor shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, etc.) and circumstances within the Customer’s sphere of influence (e.g. untimely provision of cooperation services, delays by third parties attributable to the Customer, etc.). They shall entitle him to postpone the provision of the affected services by the duration of the hindrance plus a reasonable start-up time.
§ 6 Releases
- After notification of the completion of the services related to a section and their making available, an immediate test shall be carried out by the Customer to determine whether the services have essentially been performed in accordance with the contract. At the request of the Contractor, this examination may be combined with a test in accordance with § 9. If the Services have essentially been performed in accordance with the contract, the principal shall release the Services without delay.
- If the Client does not consider the services rendered to be essentially in accordance with the contract, he shall notify the Contractor of his complaints without delay, but no later than two weeks after the services have been made available.
- If the Customer does not raise any objections within the two weeks despite completion of the services, the release shall be deemed to be tacitly granted. The Contractor shall specifically draw the Customer’s attention to this significance of its conduct with the notification of completion.
- If the Customer complains about services in due time, the Contractor shall immediately comment on this to the Customer. The parties shall then attempt to reach an agreement on the further course of action. The Contractor shall only be obliged to continue to act if agreement is reached within a further period of two weeks. If an agreement fails, the Customer may agree to the continuation of the contract subject to the rights to which it is entitled on account of the complaints.
§ 7 Change requests
- If a contracting party wishes to change the contractually determined scope of the services to be provided by the Contractor, it shall express this wish for change in writing to the other contracting party. The further procedure shall be governed by the following provisions. In case of change requests of the Customer which can be quickly examined and probably implemented within 8 working hours, the Contractor may dispense with the procedure according to paras. 2 to 5 and perform the services directly. A contracting party is entitled to withdraw its change request at any time; the initiated change procedure shall then end.
- The Contractor shall check what effects the desired change will have, regarding remuneration and deadlines. If the change request originates from the Contractor, the Contractor shall obtain the Customer’s consent beforehand. If the contractor recognizes that services currently to be performed cannot be performed or can only be performed with a delay due to the review, it shall inform the customer of this and point out to the customer that the change request can still only be reviewed if the affected services are initially postponed for an indefinite period of time. If the client declares its consent to this postponement, the Contractor shall carry out the review of the change request.
- After reviewing the change request, the Contractor shall explain to the customer the effects of the change request on the agreements made. The presentation shall contain either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.
- The Contracting Parties shall immediately coordinate the content of a proposal for the implementation of the change request and attach the result of a successful coordination to the text of the Contract to which the change relates as a supplementary agreement.
- If no agreement is reached or if the change procedure ends for another reason, the original scope of services shall remain. The same shall apply if the Customer does not agree to an examination of the Contractor’s change request or to a postponement of the services for further performance of the examination (see paragraph 2).
- The dates affected by the change procedure shall be postponed as necessary, considering the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period. The Contractor shall notify the Client of the new dates.
- The Customer shall bear the expenses incurred by the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. If the parties have agreed on daily rates, the expenses shall be calculated according to these rates, otherwise according to the Contractor’s usual remuneration.
§ 8 Handover
The Contractor shall hand over the results of the completed service sections to the Customer. This includes, depending on the contract, the created software including user documentation and, if necessary, installation instructions, the parameterization data and/or the training documents on a suitable data carrier.
§ 9 Test
- At the request of the Contractor, the Customer shall assume as an independent obligation to cooperate free of charge in the review of the services provided by the Contractor for their conformity with the contract (test).
- The Contractor shall coordinate with the Client the test procedure, the location, the time and the acts of cooperation to be provided by the Client during the test in good time before the test is carried out.
- Within the scope of the test, a written test protocol shall be prepared in which the test result shall be recorded. The Customer shall check the Services for their conformity with the contract and have any disadvantageous deviations from the contractually agreed quality that are recognizable to it recorded in the protocol.
- If, despite completion of the services, the client does not record adverse deviations of the services from the agreed quality which he has detected during the test or which he has not detected due to negligence, the services shall be deemed to have been provided in accordance with the contract with regard to these unreported deviations. If the Customer fails to comply with its obligation to participate in the test or fails to do so in full, the completed Services shall also be deemed to have been performed in accordance with the contract. The Contractor shall point out this significance of its conduct to the Customer with the notification pursuant to Paragraph 2. Insofar as the Contractor has fraudulently concealed deviations in quality, it may not invoke the provisions of this paragraph.
- Any further obligation of the Customer to point out detected defects shall remain unaffected.
§ 10 Remuneration
- The remuneration for the services to be rendered by the Contractor shall be governed by the provisions agreed in the contract. Unless otherwise stipulated therein, services shall be rendered on a time and material basis at the Contractor’s customary rates of remuneration. If services are agreed at fixed prices, increases and decreases in expenditure shall not entitle either party to demand an adjustment. Cost estimates or budget plans prepared by the Contractor are non-binding.
- The Client shall bear all out-of-pocket expenses such as travel and accommodation costs, out-of-pocket expenses and claims for payment by third parties arising in the course of the performance of the contract against evidence. Travel times shall be remunerated.
- If the parties have not reached an agreement on the remuneration of a service of the Contractor, the performance of which the Customer could only expect according to the circumstances against remuneration, the Customer shall pay the remuneration customary for this service. In case of doubt, the remuneration rates demanded by the Contractor for its services shall be deemed customary.
- Payments shall be made 7 days after receipt of the invoice. All contractually agreed remunerations are subject to the statutory value added tax.
§ 11 Rights of use
- The Contractor shall grant the Customer a simple, non-exclusive, non-transferable right for an unlimited period of time to the software provided under this Agreement and created by it or on its behalf to use the software in its business to the extent specified in the Agreement. The Customer shall not receive any further rights.
- The above grant of rights shall not give rise to any claim to the surrender of the source code underlying the Software provided. The surrender of source code shall be regulated in a separate agreement, if necessary.
- The transfer of the rights of use shall only take place at the time of full payment of the remuneration by the Customer. Until the complete payment of the remuneration, the Contractor shall revocably tolerate the use of the software by the Customer. The Contractor may revoke the use of such software for which the Customer is in default of payment for the duration of the default.
§ 12 Infringement of property rights
In the event of infringements of property rights, the Contractor may – without prejudice to any claims for damages on the part of the Customer – at its own discretion and at its own expense with regard to the affected performance
- after prior consultation with the client, make changes that ensure that an infringement of property rights no longer exists or
- acquire the necessary rights of use for the Client.
§ 13 Obligation to give notice of defects
- The Customer shall inspect the software including the documentation immediately after delivery by the Contractor, insofar as this is feasible in the ordinary course of business and shall notify the Contractor without undue delay if a defect becomes apparent.
- If the Customer fails to give notice, the Software including the documentation shall be deemed to have been approved, unless the defect was not recognizable during the inspection.
- If, irrespective of a test pursuant to § 9, such a defect becomes apparent at a later date, notification must be made immediately after discovery; otherwise, the Software, including the Documentation, shall be deemed to have been approved also in view of this defect.
- The timely dispatch of the notification shall be sufficient to preserve the rights of the Customer.
- If the Contractor has fraudulently concealed the defect, it may not invoke the above provisions.
§ 14 Withdrawal
- The Customer may only withdraw from the contract due to a breach of duty that does not consist of a defect in a purchased item or work if the Contractor is responsible for this breach of duty.
- If the Client withdraws due to the breach of an obligation that relates to a definable service that can be provided independently of other services to be provided, considering the legitimate interests of the client, the other services shall not be covered by this withdrawal.
§ 15 Liability for material defects and defects of title
- The software and the user documentation shall have the agreed quality. The agreed quality conclusively describes the functionality of the software.
- Claims for defects shall become statute-barred after twelve months; this shall not apply in the event of fraudulent intent and if the Contractor has assumed a guarantee.
- As long as the Customer has not yet paid the remuneration due under this contract in full and he has no justified interest in retaining the overdue remuneration, the Contractor shall be entitled to refuse subsequent performance.
- The contractor shall not be liable in cases where the client has made changes to the service provided by the contractor unless these changes were without influence on the occurrence of the defect.
- The customer shall support the contractor in the determination and elimination of the defect and shall immediately grant access to the documents from which the more detailed circumstances of the occurrence of the defect result.
- Before asserting claims for supplementary performance, the customer shall verify with due care whether a defect subject to supplementary performance exists. Insofar as an alleged defect is not subject to the obligation of subsequent performance (apparent defect), the customer may be charged for the contractor’s services rendered for verification and rectification of the defect at the contractor’s respective valid rates of remuneration plus the expenses incurred, unless the customer could not have recognized the apparent defect even if it had exercised due diligence.
- The place of performance for subsequent performance shall be the contractor’s registered office. Subsequent performance may be effected by telecommunicative transmission of software, unless telecommunicative transmission is unreasonable for the customer, for example for reasons of IT security.
§ 16 General liability
- The contractor shall be liable for intent and gross negligence. The contractor shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and the observance of which the contractual partner may regularly rely on, as well as in the event of damage resulting from injury to life, body or health.
- When creating the software, the contractor shall exercise the care customary in the industry. In determining whether the Contractor is at fault, it shall be considered that software cannot be created technically free of errors.
- In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage, the occurrence of which must typically be expected.
- The contractor shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the client has failed to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
- The above provisions shall also apply in favor of the contractor’s vicarious agents.
§ 17 Secrecy, Notifications
- Both parties undertake to use all knowledge of trade and/or business secrets of the other party obtained within the framework of the contractual relationship only for the performance of the contract and not to make them accessible to third parties. Third parties shall not include auxiliary persons such as freelancers, subcontractors, etc. engaged by the Contractor for the performance of the contractual relationship. These auxiliary persons shall be subject to a corresponding duty of confidentiality.
- Furthermore, the contracting parties agree to maintain confidentiality regarding the content of the contract.
- The confidentiality obligation shall also apply beyond the termination of the contractual relationship.
- Press statements in which one Party refers to the other shall only be permitted after prior written agreement.
- The contractor may name the customer as a reference customer on its website or in other media. Furthermore, the Contractor may publicly reproduce or refer to the services provided and generally offered by the client within the scope of its business operations for demonstration purposes, unless the Client can claim a legitimate interest to the contrary.
§ 18 Assignment, right of retention and set-off
- The assignment of claims other than monetary claims shall only be permitted with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld.
- A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.
- The contracting parties may only offset claims that have been legally established or are undisputed.
§ 19 Final provisions
- All amendments and supplements to contractual agreements must be recorded in writing for evidence purposes. Notices of termination must be made in writing. The receipt of the declaration shall be decisive for the observance of the deadlines specified in this contract, unless expressly stipulated otherwise. If these GTC provide for written form, this shall mean paper-based documentation of the declarations, which shall be concluded by the signature of an authorized person. Electronic messages do not comply with the written form.
- Should individual provisions of the party agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreements.
- The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract shall be the contractor’s registered office. However, the contractor shall also be entitled to bring an action at the customer’s general place of jurisdiction.
Wedel, April 2023