- from here: “ VALUENEER GmbH“–
These Terms and Conditions shall apply to all agreements concerning the provision of consultancy services and agreements concerning the production of software (hereinafter: works) by VALUENEER GmbH (hereinafter: the provider). Differing, conflicting or supplementary terms and conditions shall not, even upon knowledge thereof, become part of the agreement, unless the provider consents expressly and in writing to their application.
2.1 The individual details of the contractual arrangement (e.g. services, timeframe, compensation) are regulated separately in written individual commissions (on the basis of proposals tendered and accepted) and their specifications, opt. including specific concepts and requirement specifications. These documents shall have precedence over these Terms and Conditions in cases of doubt. They can be amended at any point and are approved in writing by the client and appended to the original commission. All appendices are deemed to be essential part of the agreement.
2.2 The provider shall provide the works and services on the basis of these documents to the best of his knowledge and ability and by using state-of-the-art research and technology and the generally accepted rules of logistics and information technology. The data, figures, and other statements provided in the pursuit of the individual commissions are collated with care from reputable sources, such as research publications and market research providers. The provider accepts no other liability for the accuracy of the source data.
3.1 The client and the provider shall name a project leader to receive and convey any binding statements. Agreements and/or statements made by other members of staff are not considered binding.
3.2 The client and the provider shall name one or more contact persons in writing upon the start of the project to be responsible for all questions relating to their areas of expertise (e.g. logistics, data processing) arising in the course of the project and for the provision of all required information and cooperation.
4 Duty to Cooperate
4.1 The provider advises and supports the client with the continuous provision of essential information relating to the intended works.
4.2 Should the provider notice that the specifications, information, or material provided by the client are incorrect and/or not suitable for use in the intended manner, the provider shall inform the client immediately about this fact and its implications for the delivery of the service. The parties shall then agree on the next steps and change the relevant service specifications, concepts, and requirements specifications accordingly.
4.3 The client accepts the essential contractual duty to provide the provider with the required information, data, and materials requested by the provider in all phases of the project and to deliver these on time and in the requested format, quality, and scope. The following essential contractual duties apply:
4.3.1 The client shall check all interim works and reports delivered by the client immediately to ascertain whether the information about the client and his business contained in them is correct. The provider is to be notified immediately about any necessary corrections and change requests.
4.3.2 The client shall provide common project equipment and, if required, own facilities for the duration of the service delivery. In particular, a internet-capable, standard phone line and telephone without manual operator services is to be provided free of charge for the purposes of the project.
4.3.3 The client shall provide the provider with all information about his company and sufficient and sufficiently qualified resources as required for the correct delivery of the requested services. The client shall provide the provider with a detailed and accurate requirements analysis and a precise and detailed description of the requested services before entering the service request.
4.3.4 Upon request by the provider, the client shall provide the provider immediately with all relevant facts and decisions required for the correct delivery of the individual commissions, insofar as they belong to the area of responsibility of the client. The provider will not check the factual accuracy of the texts and/or data made available to him.
4.3.5 The client will inform the provider in writing and on a timely basis about any changes to the technical or structural (e.g. data landscape) conditions required for the correct delivery of the requested services.
4.4 Should the client not comply, not comply in time, or not comply correctly with his duty to cooperate, the provider shall request such compliance from the client in writing within a reasonable notice period. If the client fails to comply within this notice period, the provider has the right to produce or procure the required cooperation services at the expense of the client. The provider is also entitled to change the agreed timeframe and calculation to the extent required by the breach of the duty to cooperate and to request compensation for the non-utilization of material or personnel capacities at the provider or any sub-contractors as well as the compensation for the costs of identifying and removing any defects. The provider shall inform the client about this at the start of the notice period. The client shall recompense the provider for the full damages caused by the delays, including the loss of earnings, and for all damages in the case of poor performance in accordance with the statutory requirements. The client understands that the quality of the services of the provider is dependent on the quality (e.g. performance) of the services required under the client’s duty to cooperate (e.g. providing certain technical equipment).
4.5 After the termination of the commission, the provider has the right to destroy any documents and files provided by the client, unless the client requests their return within two weeks from the termination of the commission.
5.1 Insofar as the services are provided at the client, the provider shall be authorized to issue instructions to the provider’s personnel.
5.2 The provider reserves the right to replace or support his personnel with other personnel of equal qualification at any time.
6 Change Requests
6.1 The provider shall endeavour to comply with all change requests made by the client. The changes introduced as a result of this shall be included in the provider’s compensation, unless they are deemed insignificant in terms of their number or individual scale. For the purposes of these Terms and Conditions, changes are deemed to include all requested amendments to approved specifications, concepts or requirements specifications and additions to the requested service scope.
6.2 The provider shall assess the requested changes immediately and provide the client with a written offer for the amendment of the agreement, in particular concerning the compensation and timeframe.
6.3 The provider shall define a reasonable time for the client’s approval of the written offer. If the client does not object within that period, this shall constitute his acceptance of the revised agreement. The provider shall inform the client about this consequence at the start of the approval period.
7 Partial Delivery
For agreements concerning the production of software, the provider reserves the right to deliver or convey inherently complete parts of the intended works.
For agreements concerning the production of software, the client shall test the provided works in terms of their compliance with the relevant individual commissions and their specifications, including any concepts and service specifications. The client shall keep minutes of these tests that record all test activities and their results and produce a detailed written list of defects that includes all defects evident to the client.
Both the test minutes and the defect list shall be made available to the provider within 15 working days from the original delivery of the works.
9 Claims for Defects
9.1 For agreements concerning the production of software, the provider shall be liable for defects in accordance with the statutory requirements, unless stipulated otherwise in the following sections.
9.2 The quality of the works is determined only by the description of the works in the written individual commissions and the specifications, concepts, and requirements specifications included in them. Product descriptions, claims or advertising shall not be considered contractual descriptions of the quality of the works.
9.3 The provider provides no legal guarantees unless stated expressly as such.
9.4 All claims for the removal of defects shall be limited to a limitation period of 12 months. This limitation period shall not apply if the provider has maliciously concealed the defect.
9.5 The provider shall remove all defects made known to him in a written, detailed defect list within the limitation period at his own expense. The validity of the claim by the client is dependent on the written notification of the provider within one week from the original identification of the defect. The provider waives the right to the objection of a late notification of defects for the duration of the testing period (Section 8).
9.6 The client informs the client in the written list of defects whether the defect affects the usability of the system (defect type 1), that is, all defects beyond defect type 2, specifically the loss or considerable limitation of functionality that cannot be replaced with other functionality or defects that affect the functionality of the entire system to a substantial degree;
affects the functionality of the system, but not the usability of the system to any substantial degree (defect type 2), such as the loss or considerable limitation of functionality that can be replaced with other functionality;
does not affect the usability of the system or only affects it to a negligible extent (defect type 3), such as the limitation of user experience etc. without any limitation to the functionality of the system.
9.7 The client shall provide the provider with all reasonable documents and information that the provider needs for assessing and removing the defects upon request by the provider.
9.8. Should a test reveal that no defect was present, the provider can charge compensation for his services according to his regular hourly fees.
9.9 The provider shall begin work on removing the defects immediately; in the case of type 1 defects latest within 24 hours from the original notification (in the case of a notification between 7 p.m. and 7 a.m. or on Sundays or holidays: from 9 a.m. of the next working day);
- in the case of type 2 defects latest within three working days from the original notification
- in the case of type 3 defects within a period to be determined individually.
9.10 The provider reserves the right to provider an appropriate interim solution within reasonable bounds.
9.11 The provider shall render remedial services in the form of a removal of the defect or the provision of defect-free works. Should the remedial services fail, the client has the right to claim a reduction of the contractual compensation or a withdrawal from the agreement, irrespective of his other statutory rights. The provider can request a statement to this effect from the client within a stated notice period. In this case, a withdrawal from the contract is only valid before the end of this notice period.
9.12 Claims for defects shall not apply
- if the client changes and/or commissions a change to the works
- if the client does not comply with his duty to cooperate in full or on time, unless the client gives proof that the breach of his duty to cooperate was not a cause for the defect.
The client has no right to withdraw from the agreement in the case of breaches of duty which are not the result of flaws in the works and services provided and for which the provider is not responsible.
11.1 The provider shall only be held liable – irrespective of the legal grounds – if the damage
11.1.1 is caused by the culpable breach of an essential contractual duty in a manner that endangers the accomplishment of the object of the agreement
11.1.2 is the result of gross negligence or intention on the part of the provider.
11.2 If the provider is held liable for the culpable breach of an essential contractual duty in accordance with Section 11.1.1, the liability shall be limited to the damages typically foreseeable by the provider on the basis of his cognizance of the conditions in place at the time of the original commission.
11.3 The limitation of liability defined in section 11.2 shall also apply to damages caused by the gross negligence or intention of members of staff or agents of the provider who are not part of the provider’s executive staff.
11.4 The provider shall only be held liable for the loss of data or software applications and their recuperation to the extent defined in Section 11.1, insofar as such loss would have been avoidable by reasonable precautions on the part of the client, in particular the daily storing of backup copies.
11.5 The limitations of liability defined in Sections 11.1 to 11.4 shall apply similarly to the benefit of the members of staff and agents of the provider.
11.6 This shall not affect the potential liability of the provider relating to the absence of agreed qualities, the Product Liability Act, or Section 17 of this agreement.
11.7 The limitation of liability shall not apply to injury or loss of life caused by the provider.
11.8 Should the provider be prevented from fulfilling the contractual obligations by the occurrence of unexpected circumstances that affect the provider or his suppliers and that the provider could not avert with due care and attention as required by the circumstances of the individual case, e.g. war, force majeure, domestic unrest, force of nature, accidents, other disruptions of operation or delays in the delivery of essential material, hardware, or software, the provider does not accept any liability for the duration of these circumstances.
11.9 Should the provider be commissioned to provide consultancy services for the planning of production or warehousing facilities, the provider shall not be held liable for damages relating to the non-occurrence or incomplete realization of the predicted savings or investment volume or other predicted commercial effects. In particular, the provider shall not recompense the client for the difference between the predicted and actual savings or investment volume.
11.10 Should the provider be commissioned to provide an operational stock reduction programme, the provider shall not be held liable for the non-occurrence or incomplete realization of the intended stock reduction. This shall not affect the client’s contractual right to the early termination of the agreement or the client’s right to reduce the overall compensation in accordance with the performance-based fees structure.
11.11 In the case of operational stock reduction programmes, the client shall have sole responsibility for his delivery capacity. In the case of impending supply shortfalls, the client shall favour his doubts about his delivery capacity over the recommendations of the stock reduction programme. In particular, the client is responsible for the effective stock check during and after the conclusion of the stock reduction programme. The provider shall not recompense the client for any damages caused by potential delivery capacity problems on the part of the client.
11.12 If the provider is commissioned to assign an interim manager, the provider shall only be held liable for the selection (culpa in eligendo) of the interim manager. The provider does not accept any liability for any breach of the duty of care by the interim manager. The interim manager does not act as a vicarious agent of the provider.
12 Competition Law Compliance
The provider does not accept liability for the compliance with competition law of all services and works provided in the pursuit of individual commissions, unless such a compliance assessment is part of the commission. The provider shall inform the client about any competition concerns that are or become known in the course of the commission.
13.1 The client shall receive compensation for all works and the assignment of protective rights in accordance with the individual commission.
13.2 All fees are exclusive of the rate of VAT applicable at the point of delivery.
13.3 All invoices are payable immediately and in full.
13.4 For agreements concerning the provision of software, the provider reserves the right to request partial payment of the fees for partial delivery of the works.
13.5 A valid billing address must be stated upon commissioning. No extension of the payment period shall be granted as a result of a change in the billing address.
14 Assignment of Rights
14.1 For agreements concerning the provision of consultancy services, the provider shall assign exclusive usage rights for all works to the client. Should the provider use standard services in the course of his work, the provider shall assign general usage rights for all such works to the client.
14.2 The following applies to the production of software works:
14.2.1 The provider assigns exclusive usage rights to the client for those parts of the works that were produced specifically for the client and that represent a unique works on the basis of the individual commission in question according to the contractual requirements. In the case that the individual commission does not cover such a unique work, the works are deemed to not have been intended for the unique position of the client.
14.2.2 The provider shall assign general usage rights to the client for all works that do not represent unique works in accordance with the individual commission and/or requirements specifications or were used for the production of the provided works, but were already in the possession of the client, such as images, working aids, or generic material (screen templates, processes, UI elements etc.). The same applies to the usage of any works of third parties (e.g. photographic images, standard software). In the latter case, the licensing restrictions of the third party shall apply.
14.3 The rights are assigned without restriction in time or location unless stipulated otherwise in the individual commission. These usage rights are limited to the applications determined by the object of the agreement.
14.4 If the agreement concerns the production of software, the client is entitled to edit all works and parts thereof, without prior consent of the provider, for which the client was assigned exclusive usage rights. All other works or parts thereof must only be edited with the prior consent of the provider.
14.5 The assignment of rights is subject to revocation until the complete receipt of the agreed compensation.
14.6 The provider is entitled to using the works for demonstration purposes, in particular in the context of trade fairs, exhibitions, seminars or similar events in accordance with Section 22.
14.7 The assignment of the complete or partial general or exclusive usage rights to domestic or international third parties (including subsidiaries and other affiliate organizations of the client) is only admissible with the express consent of the provider for all agreements concerning the production of software.
14.8 The client is required to append an indication of copyright protection © in accordance with the Universal Copyright Convention on behalf of the provider in the case of the publication of the works.
15 Assignment of Protective Rights for the Source Code
15.1 If the agreement concerns the production of software, the provider shall assign general usage rights to the client not restricted in time or location for the source code. These usage rights are limited to the applications determined by the object of the agreement.
15.2 In accordance with the right to edit as stipulated in Section 14.4, the client is entitled to edit those parts of the source code that were produced specifically for the client and that represent a unique work on the basis of the individual commission in question; the assumption made in Section 14.2 shall apply. The provider shall make the relevant parts of the source code available to the client upon quest and after the full receipt of the agreed compensation.
15.3 The client is not allowed to use the source code for any other purposes. The client is expressly forbidden from conveying the source code or parts thereof to any third party without the consent of the provider.
16 Protective Rights of Third Parties
16.1 The provider guarantees that the works provided are free of any protective rights of third parties that preclude or limit their usage by the client.
16.2 In the case that the client provides materials relating to the protective rights of third parties for the provision of the services in this agreement, the client guarantees that these materials are free of any protective rights of third parties as stipulated in Section 16.1.
16.3 The parties release each other from all claims of third parties brought forward in relation to the protective rights or other rights. The parties agree to notify each other in the case that damages are claimed concerning the infringement of such rights. If there is an infringement of rights as stipulated in Section 16.1, the provider reserves the right to revise the works at the provider’s expense in such a way that there is no further infringement of such rights, as long as this is deemed reasonable for the client.
16.4 With the usage of the provided works, the client assumes all resulting legal and contractual responsibilities and liabilities towards the relevant discerning institutions for copyright or intellectual property rights as well as all other responsibilities in this context.
16.5 Should the provider create names, titles, etc. for the client in the provision of the services, the provider accepts no liability for the absence or presence of third party’s rights.
17 Data Protection and Confidentiality
17.1 The client understands that the provider will not check the use of the provided works as relating to aspects of data protection. The client is requested to ascertain full compliance with data protection legislation in each specific case, if required with the support of the client’s legal team or responsible data protection agency. The client is hereby informed that the provider cannot provide legal advice.
17.2 Should the provider process or use personal data on behalf of the client, the client shall give him an express mandate in accordance with Section 11 BDSG with due consideration for all data protection requirements.
17.3 The use of the provided works can lead to security risks that cannot be prevented with the current state of technology. The provider is committed to maintaining state-of-the-art security standards. The provider is subject to no further duty of care beyond this.
18 Delayed Provision of Services
The provider shall not be held liable for the delayed provision of services caused by a force majeure (e.g. industrial action, administrative orders, general faults in telecommunication connectivity etc.) or caused by forces outside the power of the provider. In such instances, the provider is entitled to delay the provision of the services for the duration of the obstruction and appropriate additional lead-time after its removal.
19 Limitation of Liability in the Case of Delays
The provider shall be held liable for a maximum of 5% of all damages resulting from a delayed provision of the services to be provided by the client. Any claims for damages resulting from a delayed provision of the services shall only be acceptable in the case of grossly negligent behaviour or the dereliction of the contractual duties on the part of the provider.
20 Involvement of Third Parties
20.1 The provider reserves the right to request the delivery of parts of its services by third parties. The provider shall assume liability for their services as the provider’s vicarious agents.
20.2 Should the client request services relating to or affecting the services to be provided by the provider (e.g. third-party software), the client alone shall be liable for the correctness of these services. The provider shall not be liable for any failure to provide his services or parts thereof as a result of the actions of such third parties. The provider accepts not responsibility for coordinating the services of third parties requested by the client or in the client’s name, unless this has been agreed in writing.
Should the provider produce minutes concerning meetings between the provider and the client, the client shall forward these minutes immediately to the provider. Unless the client requests changes or amendments to these minutes in writing within 8 working days, the minutes shall be deemed a full and accurate record of the proceedings. The provider shall inform the client about this limitation period upon the hand-over of such minutes.
Both parties agree to maintain unlimited confidentiality concerning all confidential information defined as such expressly and in writing by the other party and all other information recognizable according to other criteria as belonging to the trade and business secrets of the other party. Neither party shall store, disclose, or process such information unless required for the purposes of this agreement. The parties shall make suitable contractual agreements with employees and other agents working on their behalf to ensure that these do not process, disclose, or store such information and trade or business secrets without express consent. Either party shall inform the other party of the conclusion of such agreements upon request.
23 Jurisdiction and Legal Venue
Place of jurisdiction and legal venue for all litigations arising from or relating to this agreement is Berlin. Both parties have the right to initiate legal proceedings at the registered seat of the other party.
24.1 The parties agree to appeal for arbitration by the DGRI, Deutsche Gesellschaft für Recht und Informatik e.V., Am Fasanengarten 5, in D-76131 Karlsruhe, in all instances of conflict arising from or relating to this agreement with the goal of resolving the difference in opinion completely or partially, temporarily, or permanently, on the basis of its rules of arbitration.
24.2 To enable such arbitration, the parties agree to waive their right to an objection of the statute of limitation for all claims subject to litigation from the initiation of arbitration until one month after the conclusion of the mediation proceedings. The parties understand that this waiver will mean an extension of the limitation period.
25 Final Clauses
25.1 The law of the Federal Republic of Germany shall apply for all claims relating to this agreement in exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
25.2 The parties confirm that agreement made between them includes all relevant stipulations; there are no subsidiary agreements. Any changes or additions to the terms and conditions and the agreement must be in written form. This also applies to a waiver of this requirement of written form and the cancellation of the agreement.
25.3 The parties agree that the requirement of written form shall be considered fulfilled in the case of communication by telefax or electronic mail where evidence of receipt can be given (e.g. fax protocol, email receipt). This shall not apply to the requirement of written form as stipulated in sections 2.1, 6.3, and 25.2; in these cases, the presence of a fax with protocol is required as evidence.
© VALUENEER GmbH, Version: August 2012