DAKO GmbH, hereinafter referred to as DAKO or the Client
For services provided by the contractor in the field of information technology and telecommunications technology, in particular, but not exclusively, for design services, individual software development, maintenance and adaptation of software, only these General Terms and Conditions of Purchase for Information Technology (“GTC-IT”) in the version current at the time of conclusion of the contract shall apply. A contract is generally concluded by the Contractor’s unconditional acceptance of the Client’s order. Such acceptance shall also be deemed to have taken place if the Contractor commences performance of the service after receipt of the order.
The general terms and conditions of the contractor and its suppliers shall not apply, including as shrink-wrap, click-wrap or other pre-formulated provisions.
Any affiliated company (Sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz – AktG)) of DAKO may be a Client in accordance with these GTC-IT.
Affiliated companies may join a contract, for example by placing an order with reference to a contract. Clients may withdraw from a contract if the remaining Clients assume their obligations. Contracts may also be transferred between affiliated companies by the Client. The contractor may terminate the contract in each case if it becomes unreasonable for him.
The granting of non-exclusive rights of use always includes the right to exercise the rights of use by affiliated companies or third parties solely for the purposes of the Client and the affiliated companies.
The granting of exclusive rights of use always includes the right to transfer the rights of use to affiliated companies and third parties and to sublicense them accordingly.
Unless expressly agreed otherwise, the following shall be included in the contract in order of priority:
The contractor shall provide the services on its own responsibility. Only the contractor is authorised to issue instructions to the employees deployed. The contractor shall ensure that the personnel deployed by it are not integrated into the Client’s business or that of an affiliated company. Employees deployed by the contractor shall not enter into an employment relationship with the Client, even if they provide services there.
Before the start of the service, the contractor shall name a responsible contact person to the Client. Any change of contact person must be announced in good time. When providing services at the Client’s premises, the contractor must comply with the applicable safety regulations and information security guidelines, which the Client shall provide upon request. When accessing the Client’s information and telecommunications technology, the contractor must strictly observe the applicable information security guidelines, in particular when accessing remotely.
The contractor undertakes to comply with any further or amended guidelines provided by the Client. This shall not apply if this is unreasonable for the contractor and the contractor has immediately objected to the guideline in writing to the Client after becoming aware of it, stating the relevant reasons.
Upon termination of the contract, the access authorisations of the contractor’s personnel to the Client’s systems and premises under the contract shall expire. At the same time, the contractor shall return any ID cards and other items provided for authentication (e.g. tokens, smart cards).
The contractor shall provide services in accordance with recognised technical and quality standards at the time of conclusion of the contract. Hardware shall be CE marked and delivered in accordance with valid VDE (German Association of Electrotechnical Electronic & Information Technologies) and UVV (German Accident Prevention Regulations) regulations. Software shall be provided in accordance with the state of the art and relevant quality standards. Deliveries shall be comprehensively checked and tested prior to provision.
The contractor shall examine deliveries and services, as well as all data carriers used in the context of service provision or deliveries and services transmitted electronically (e.g. via email or data transfer), for malware (e.g. trojans, viruses, spyware, etc.) using the latest testing and analysis methods prior to provision or use, thereby ensuring that they are free of malware. If malware is detected, the data carrier must not be used. If the contractor detects malware at the Client’s premises, it shall inform the Client immediately. The same obligations apply to all forms of electronic communication.
The contractor undertakes to grant the minimum wage and agreed supplements, including social security contributions, employment promotion and social security expenses to employees and marginal employees, as stipulated in the statutory and collective agreement provisions, in particular the Act on Mandatory Working Conditions for Workers Posted Across Borders and for Workers Regularly Employed in Germany
(Arbeitnehmer-Entsendegesetz – AEntG), the Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz – AÜG), the Act Regulating a General Minimum Wage (Mindestlohngesetz – MiLoG) and the relevant collective agreements, employment promotion and social security expenses to employees and marginal part-time employees.
Services shall be provided at the agreed place of performance on the agreed date. Otherwise, the risk of price and performance shall not pass to the Client.
The contractor is not permitted to include so-called “free software” or “open source software”, i.e. software that can be obtained regularly free of charge and with open-source code (OSS), in software developments for the purpose of fulfilling the contract. This also applies if their licence and usage terms expressly permit the use of this OSS for software development in its original, modified, derived or any other form.
The use of OSS may be permitted in individual cases if the contractor (i) submits a written request to the Client for the use of OSS, (ii) provides the relevant licence and usage terms, (iii) communicates the reasons (advantages/benefits) for the use of OSS, and (iv) the Client gives its written consent to the use of this OSS for the fulfilment of the contract.
The use of OSS without the prior written consent of the Client shall be deemed a material breach of contract. If a contractual service provided by the contractor contains OSS that has not been approved by the Client, this contractual service shall be deemed defective.
The contractor shall provide services for the Client for the design and development of custom software as well as for the adaptation and parameterisation of software, in particular:
a. Specification and design services consisting of
aa. IT strategy and IT process design,
bb. the creation of a specification sheet (consisting of a catalogue of requirements, functional and non-functional requirements for an IT system – also known as a rough concept) and/or
cc. the creation of a functional specification (consisting of a technical concept, IT concept, test concept, and operational requirements – also referred to as a target concept, detailed concept, requirements specification, or service description) and/or
b. Design and implementation services
aa. Creation of a software and application design (consisting of low-level specification, IT concept, design documentation, architecture and application design), and/or
bb. development, testing and implementation, including installation (collectively referred to as “implementation”)
c. Development and implementation, including installation (collectively referred to as “implementation”),
d. Adaptation and parameterisation (collectively referred to as “customising”) and
e. software maintenance services and related services.
If the subject matter of the contractual service is the implementation or customising of a software solution, this shall be delivered with the associated documentation in German for German-speaking locations, otherwise in English in printed or printable form. This documentation, in particular for installation, use, operation and maintenance, including the complete development documentation, is part of the main service obligation. The documentation must be sufficient to enable an average user to use the contractual service without support from the contractor. The operating manuals and development documentation supplied must enable an IT specialist to install, operate, maintain and further develop the software.
The results of implementation and customisation must be installed, integrated and configured by the contractor and handed over to the Client in a ready-to-use condition and transferred to the Client’s ownership.
The contractor shall instruct the Client to the extent necessary during the test and trial operation to be carried out.
Services in accordance with Sections 4.2 to 4.4 are included in the contractually agreed remuneration. Remuneration for services shall only be paid after the service has been rendered in full, unless otherwise agreed. If the parties agree on partial payments, partial payments shall only be made after the respective partial service has been rendered in full. Agreed due dates shall remain unaffected by this. The contractor shall be bound by agreed remuneration caps and fixed prices as well as by its cost estimate made prior to conclusion of the contract, unless these are expressly designated as non-binding in the order.
If a fixed price has been agreed for a service, the contractor shall provide this service in full at the agreed price. Any additional costs incurred in order to provide the agreed services in full shall be borne by the contractor. Additional claims are excluded.
If remuneration based on expenditure is agreed, with or without a remuneration cap, the contractor shall invoice its services after each service has been provided in accordance with the agreed billing periods. The contractor shall not be entitled to exhaust the agreed remuneration caps. There shall be no entitlement to remuneration for services exceeding the remuneration cap. The contractor shall ensure that the calculation of the expenditure made by him prior to the award of the contract is not exceeded. The contractor shall inform the Client immediately as soon as it becomes apparent to him that the estimated expenditure based on daily rates is likely to be exceeded. The Client shall inform the contractor in writing whether he agrees to this excess. If the Client does not agree, the contractor shall provide its services at the originally calculated and agreed cost to. The contractor may demand approval if it is not responsible for the cost overrun. If the contractor repeatedly adjusts the cost estimate, the Client shall have an extraordinary right of termination.
At the request of the Client, the contractor shall provide additional or further services in accordance with a separate order. These special provisions shall also apply in this case. Upon request and for a separate fee, the contractor shall provide training for the Client’s employees in the use of the software. A corresponding agreement shall be concluded with a separate order.
5.1.1. Special legal requirements are not regularly mentioned in the requirements specification, as the contractor is expected to have a comprehensive understanding of the legal and regulatory requirements to be observed for the contractual service. If the contractor is responsible for drawing up the requirements specification and/or the functional specification, it shall include legal and regulatory requirements.
5.1.2. The functional specifications created are the binding description of the contractual services. In terms of content, the functional specifications specify the requirements specification in a complete and comprehensible manner with detailed technical and functional specifications, including the operating and maintenance environment and test requirements.
The technical specification (IT concept) must set out the system-specific requirements for implementing the functional specifications and, if necessary, individual solutions. The functional specifications must set out and take into account the applicable standards and specifications of DAKO.
The functional specification must be formulated in full by the contractor with the precisely agreed cooperation of the Client and approved by the Client. Upon approval (see section 8.2), it forms the basis for development and implementation services.
The specifications must define and quantify all characteristics on the basis of which the software solution to be implemented can be tested and approved by the Client.
5.1.3. The creation of the requirements and/or specifications document is not included in the scope of services if this is expressly agreed in the contract.
The contractual service is to be implemented by the contractor in accordance with the current functional specifications and the current design specifications. All requirements of the functional specifications must be taken into account and implemented with suitable technical and specialist solutions in such a way that the contractual service meets the Client’s requirements and is suitable for their purposes. Implementation shall take place in the Client’s programme and system landscape and shall ensure the interoperability of the contractual service together with the programmes and systems to be used with it.
The provisions of this contract apply accordingly to the customising of software already used by the Client or otherwise acquired. The contractor shall receive any documentation for the software available to the Client as necessary. The subject matter of the customising is described in the order. The contractor must request any missing information.
5.4.1. Software shall be delivered in a fully operational state with the agreed scope of functions, documentation and all other documents required for use. This also includes the source code, development tools and documentation, including quality assurance documentation.
The contractor shall deliver the contractual service in full on an agreed data carrier. If services relating to the creation of a specification or concept for a software solution are the subject of the contract, the respective result shall be delivered to the Client in printed or printable form on a data carrier. These services shall be presented and explained to the Client in a presentation of results.
5.4.2. The contractor’s services also include the installation of the software for testing and trial operation in accordance with clause 8.2. After acceptance of the contractual service in accordance with clause 8, the system shall be installed as a productive system. In doing so, the criticality of the system and possible disruptions to the Client’s business operations must be taken into account.
Configurations and parameterisations required for installation shall be carried out by the contractor in advance or designed in such a way that data loss or disruption to the Client’s business operations during or after installation is ruled out. Installations that are critical to business operations shall (if possible) be carried out outside the Client’s business hours. Time slots for this shall be agreed in writing in advance. The transfer of data stocks in or through the contractual service must be carried out in compliance with all security regulations in such a way that data loss is ruled out or all data stocks can be restored to their current status at any time.
5.4.3. The Client must be instructed in the contractual service. The instruction must enable the Client to use the subject matter of the contract in accordance with the contract. This also includes the necessary instructions for administrators, multipliers or users. The instruction must enable an average user to use the contractual service without further support from the contractor and enable an IT specialist or administrator of the Client to install, operate and maintain the contractual service.
The contractual service must be provided in accordance with the recognised state of the art, taking into account technical standards and the specifications and guidelines provided by the Client. The contractor shall provide the contractual service in a uniform manner in accordance with its quality management system, which must be aligned with the specifications and guidelines provided by the Client. The contractor shall design the contractual service in such a way that the quality objectives are implemented in practice and a high quality of the contractual service is ensured. The Client is entitled to inspect the quality management system in connection with the contractual service at the contractor’s premises during normal business hours, either itself or through third parties. The Client must give at least five working days’ notice of the inspection, stating the location and content of the inspection. During this inspection, the Client or third parties may also inspect the contractor’s entire project documentation. The contractor shall keep the Client informed about its quality management system during the course of the collaboration and shall name the responsible quality managers and quality procedures. Part of the quality management system is written proof of a confidentiality agreement, including with any vicarious agents involved, in favour of the Client. Together with the contractual service, the contractor shall provide the Client with complete written documentation of the quality management systems and quality assurance procedures used in the provision of the service, including quality checks carried out and their results.
Until acceptance, the Client may at any time request textual changes to the agreed services in terms of time and content.
The contractor may object to the change request if it is unreasonable for them to implement the change request.
If the changes result in additional expenses for the contractor, the contractor may demand a reasonable adjustment of the term and remuneration in accordance with the agreed rates, which must be recorded in writing.
In the event of a change request by the Client, the contractor shall notify the Client in writing within ten (10) working days whether the change is possible and what effects it will have on the contractual services, in particular on deadlines, expenses, remuneration and cooperation. During the review of a change request, the services shall continue in accordance with the existing contract. They shall only be interrupted in whole or in part upon written instruction from the Client. In this case, deadlines shall be extended by the duration of the interruption and – if the contractor has indicated this in advance – by a reasonable start-up period. If the review of the change request requires a significant amount of work, the contractor may charge for the review separately, provided that it has notified the Client of this and the scope of the review work in writing immediately after receiving the change request and the Client still wishes to have the review carried out in view of this notification and confirms this to the contractor in writing.
In the event of a change proposal by the contractor, the Client shall notify the contractor within ten (10) working days whether it agrees to the change. This presupposes that the change proposal is specified in such detail that the Client is able to examine the cause and content of the change proposal as well as the costs and effects of implementation and the effects of non-implementation without further information.
The Client shall notify the contractor in writing within a further period of 10 (ten) working days after receipt of the assessment result (see clause 6.2) whether the proposed change will be upheld; the contract shall then be amended accordingly.
If no agreement is reached on a proposed change and there is still disagreement about the necessity of a change to the contractual service, both parties shall inform the respective project manager or contact person of the cause, content and consequences of the change agreement and the reasons for the failure to reach agreement. The respective project managers or contact persons shall make a decision without delay or have it made by authorised employees of the respective party.
If no agreement is reached, the Client may terminate the contract for the specific service to be changed on an extraordinary basis if it is unreasonable for them to adhere to it without the requested change.
For the Client, the contractor is the sole and fully responsible contact for the contractual service, even if it uses vicarious agents or assistants.
Before the start of the service provision, the contractor and the Client shall each appoint a project manager, but at least one contact person (“representative”), for any coordination that may become necessary in the course of the service provision. If one of these representatives is prevented from attending for a longer period of time, a replacement shall be appointed in good time. The representatives shall be authorised to accept all declarations in connection with the contract. They shall make the necessary decisions for their companies promptly or bring them about quickly.
During the execution of the contract, the representatives shall meet regularly to the extent necessary, as agreed, at the premises of the Client or the contractor to discuss the status of the service provision. The contractor shall prepare a status report on the outcome of these meetings, including all points discussed and, in particular, any outstanding issues. This report shall be submitted to the Client’s representative for approval within five (5) working days of the meeting without being requested to do so.
If the parties cannot agree on significant issues at the regular meetings, the respective representatives shall work towards reaching an agreement. If this is not achieved immediately, the parties shall escalate the disputed matter to the responsible employees or bodies of the respective company, who can make a decision or bring one about without delay.
The contractor and its personnel are specially qualified for the contractual services and have sufficient experience with comparable services. The Client may request proof of this and, in the absence thereof, request the replacement of the project manager or assigned employees.
The contractor shall check the contractual service itself before handover to the Client to ensure that it is complete and meets the contractual requirements and contains all functions in accordance with the service description and specification. To this end, the contractor shall first install the software for integration tests, trial operation and acceptance tests in a test environment of the contractor that is similar to the production environment. The contractor shall notify the Client of the successful completion of the functional tests.
The acceptance test of the contractual service by the Client shall only commence after its completeness and functionality have been demonstrated on the basis of the functional and non-functional requirements by means of successful testing and trial operation. A test and trial operation of the contractual service shall then be carried out at the Client’s premises in order to check the contractual service for completeness and functionality in accordance with the contract and the documentation supplied. If a project quality plan or test cases are available, the procedures and criteria specified therein shall also apply. If the Client’s cooperation is required and agreed for the test and trial operation, the contractor shall notify the Client of this in writing in good time. The test and trial operation shall be recorded in writing upon completion, including any deficiencies that may have occurred. The report shall be signed by both parties. The Client shall immediately confirm successful demonstration in writing. If requirements are not met, the Client may refuse to give this confirmation. The contractor shall immediately remedy any defects that have occurred and demonstrate the contractual performance again in a test and trial operation within the agreed dates and deadlines. Upon confirmation by the Client that the trial operation has been carried out without any defects that would prevent acceptance, the contractual service shall be deemed to have been made available for acceptance by the contractor and the acceptance test shall commence at the Client’s premises, with the contractor providing the necessary support. If the Client waives the trial operation, the contractor shall declare in writing to the Client its readiness to carry out the acceptance procedure.
8.3.1. The Client is only responsible for an acceptance test if the contractual service has been completed in full. The location, duration and scope of the acceptance tests shall be determined by the Client after consultation with the contractor. The location of the acceptance test shall be the place of use of the contractual service at the Client’s premises, unless otherwise agreed in the contract. As part of the acceptance test, the contractor must demonstrate that the software meets the contractual requirements under conditions similar to those in productive operation. During the acceptance test, the Client shall also check the functions of the software against the requirements specification and other agreed specifications. The acceptance test does not constitute productive use of the contractual service. Defects in the contractual service identified during the acceptance test shall be assigned to the following classes by the Client:
8.3.2. Class 1: Software or system downtime
The contractual service does not work at all or there is one or more defects that make a complete acceptance test impossible or hinder it to such an extent that a complete acceptance test is impossible or not reasonable.
8.3.3. Class 2: Software or system function(s) fail
Most of the main and peripheral functions of the contractual service are fully functional. One or more main functions only work with significant restrictions or workarounds. Individual peripheral functions do not work at all or only with significant restrictions or workarounds. The essential part of the contractual service works and can be tested in a meaningful way.
8.3.4. Class 3: Software or system function(s) are significantly impaired
All main functions of the contractual service are working. Individual main or peripheral functions are working with more than minor restrictions or workarounds. However, the contractual service can be tested completely and meaningfully overall.
8.3.5. Class 4: Software or system function(s) are only insignificantly impaired
All main and peripheral functions of the contractual service are working. Individual functions can be tested with insignificant restrictions or workarounds.
8.3.6. Supplementary provisions on class assignment
The contractor may object to the assignment to a defect class if it demonstrates that the contractual service meets the contractual requirements in this respect or that the defect is to be assigned to another class.
The Client is only obliged to declare acceptance (see section 8.5) if the contractual service is complete, in accordance with the contract and, at most, has minor defects. The Client may refuse acceptance and terminate the acceptance test if a defect of class 1 and/or 2 or several defects of class 3 are found, i.e. if the contractual performance is not in accordance with the contract or is essentially unusable. In the case of class 3 defects, the Client may refuse acceptance if, when viewed as a whole, the contractual service is not only insignificantly defective, for example, if smooth and trouble-free operation is not only insignificantly impeded. If the contractual performance is defective, the contractor shall remedy the defect within a reasonable period of time, taking into account the interests of the Client, in particular observing the agreed dates and deadlines. The contractual performance shall be made available for acceptance again. If the contractor exceeds the agreed dates and deadlines in the context of this rectification of defects, the contractor shall be in default with its performance. In the event of refusal of acceptance, the contractor shall not be entitled to a postponement of the date or an extension of the deadline.
The Client shall declare acceptance in writing once it has been proven that the complete and contractually agreed performance does not have any significant defects. With this declaration of acceptance, the risk of price and performance shall pass to the Client. The contractual service shall only be accepted if the Client has signed the acceptance report for the entire service together with the declaration of acceptance. If acceptance is refused, the contractor shall only be obliged to carry out a new acceptance once the contractor has proven that the defects preventing acceptance have been remedied. The contractor is obliged to remedy minor defects within a reasonable period of time. The contractor may also remedy these within a reasonable period of time as part of a regular delivery of corrections, patches, updates, upgrades, new versions or similar, together with the respective updated documentation (collectively referred to as “updates”). If the Client accepts the contractual service despite recognising defects that are not merely minor, these shall be recorded in the acceptance report and rectified by the contractor without delay.
Partial acceptances are excluded. Confirmation of parts of the service, concepts, specifications or milestones shall not be deemed acceptance or partial acceptance, but shall merely constitute approval of the relevant section of the service, after which the contractor shall continue to provide the service to the agreed extent. The provisions of this clause 8 shall apply mutatis mutandis to approvals.
Limitation periods for claims for defects shall commence upon overall acceptance of the contractual service. The date of acceptance shall be the date on which the acceptance report is signed by the Client, which may not be unreasonably refused. If defects, missing functions or malfunctions are recorded in the acceptance report, the date of acceptance shall be the first day on which the last significant defect was remedied or the last missing function was integrated without error and accepted.
The Client shall provide the necessary cooperation in a timely manner, insofar as this is agreed in the contract.
If the service is provided using standard software that does not originate from or is not provided by the contractor, this shall be procured by the Client and made available to the contractor, provided that this is expressly stipulated in the order and is not impossible for the Client.
In the case of services provided on the Client’s premises, the Client shall grant the contractor the necessary access to the premises after prior consultation.
The Client shall provide the contractor with any requested documents or information – if available – on the agreed dates. If information or documents cannot be obtained or disclosed due to third-party rights, this shall not constitute insufficient cooperation. Any additional costs resulting from this shall not be borne by the contractor.
All technical equipment, documents, information or data carriers provided by the Client may only be used for the contractual services. These shall be returned by the contractor after completion of the order, including any copies made, or destroyed in accordance with clause 12.1; this shall be confirmed to the Client in writing upon request. A right of retention of data, information or documents and other work equipment is excluded.
The contractor must immediately notify the Client in writing of any insufficient cooperation on the part of the Client. Otherwise, the Client shall not be in default and the contractor cannot invoke improper cooperation. The Client shall only be responsible for insufficient or delayed cooperation to the extent that it is responsible for this.
Before providing the service, the contractor must check the technical conditions to the extent necessary so that the service can be provided without hindrance and, if necessary, inform the Client of the work that needs to be carried out to create the system requirements for the use of the contractual service. Any necessary changes to the Client’s systems and software (in particular system and operating software) must be agreed with the Client. The result of this preliminary examination shall be included as a concept in the specifications.
The dates and deadlines specified in project and time schedules and otherwise agreed are binding. The actual provision of the subject matter of the contract for acceptance after successful testing and trial operation shall be decisive for the timeliness of deliveries and services (see Section 8.2). If the contractor realises that an agreed date or deadline cannot be met, it shall immediately inform the Client in writing, stating the reasons for the delay. Changes to agreed dates and deadlines must be made in writing. The contractor shall regularly inform the Client about the progress of the service provision.
The contractor shall immediately notify the Client in writing or in text form of any insufficient cooperation on the part of the Client. Otherwise, the Client shall not be in default and the contractor shall not be able to invoke improper cooperation. If, after a complaint and a reasonable grace period, the Client culpably fails to provide the cooperation complained about, the contractor may demand a postponement of the dates or deadlines relating to the cooperation by the duration of the delay.
The contractor shall notify the Client in good time if, in addition to the agreed cooperation, additional cooperation from the Client is necessary for the provision of services. This cooperation must be requested at such an early stage that the Client is able to provide it within the scope of its ongoing business operations without hindering them. Additional cooperation must not jeopardise the existing schedule. Agreed dates and deadlines remain binding. The Client reserves the right to claim compensation from the contractor for any cooperation not agreed in the contract.
The basis for the contractor’s remuneration claims shall always be the Client’s order, which has been accepted by the contractor without reservation, or a written contract between the parties. Payments made by the Client do not constitute consent to deviations from the order.
Any remuneration claim exceeding the order requires a prior written order from the Client, which has been accepted by the contractor without reservation.
If the Client terminates a contract prematurely, either in whole or in part, they shall remunerate the services duly rendered up to the date of termination, provided that the contractor is not responsible for the termination. The contractual services rendered up to the date of termination shall be handed over to the Client in accordance with the contractual provisions. The contractor shall have no further claims in such cases.
Payments shall only be made on the basis of invoices issued by the contractor in accordance with the relevant statutory provisions. Invoices must be sent to the billing address specified in the order.
All remuneration is subject to German value added tax at the applicable statutory rate.
Other taxes may only be invoiced in addition to the agreed remuneration if they are tax-neutral for the Client, i.e. if they can be deducted by the Client from its tax liability.
The contractor and the Client shall endeavour to take all measures to achieve, in accordance with national regulations and the agreement for the avoidance of double taxation between the country in which the contractor is based and the country in which the Client is based (“agreement”), if such an agreement exists, to achieve a possible reduction or elimination of taxes that may arise in connection with this contract.
All taxes and duties of any kind incurred in connection with payments made by the Client and imposed on the contractor by tax authorities shall be borne by the contractor. All taxes and duties of any kind imposed on the Client in connection with payments made by the Client in the country in which the Client is based shall be borne by the Client. The above sentence shall not apply to income taxes imposed or withheld in accordance with national regulations and the Agreement, if such an agreement exists.
The contractor shall also fulfil all necessary tax obligations in connection with the provision of services or delivery in the respective country and shall provide the Client or an affiliated company or third party designated by the Client with all necessary evidence to enable the affiliated company or third party obtaining the services or deliveries via the Client can also make the payment of remuneration agreed with the Client. The contractor shall ensure that these requirements are also met by any subcontractors engaged by it.
The contractor may only declare a right of retention or refusal to perform or a right of set-off if the counterclaim has been legally established or is undisputed.
The Client may retain forfeited contractual penalties, damages for delay, additional expenses or any agreed securities from the contractor’s remuneration to a reasonable extent. The contractor shall not be entitled to remuneration if the service has been lost before the transfer of risk to the Client.
The contractor shall treat the information and knowledge obtained from the Client in the course of the cooperation – in particular trade and business secrets – of a technical, commercial or organisational nature as confidential and shall neither exploit it himself nor make it accessible to third parties during the term of the contractual relationship or after its termination.
All information obtained by the Client or its affiliated companies or created within the scope of the order, including the work results, must be returned to the Client by the contractor after completion of the order, including all copies made, or deleted and/or destroyed at the Client’s request. In the event of deletion and/or destruction, the reconstruction of the information must be impossible. The complete return or deletion and/or destruction must be confirmed to the Client in writing upon request.
This confidentiality obligation does not apply to information that is legally public or otherwise legally obtained – including from third parties – or to independent developments by the contractor outside the scope of the services for the Client. The contractor is responsible for proving that these conditions have been met.
Statutory and official disclosure obligations remain unaffected. The Client may transfer confidential information of the contractor to affiliated companies and its vicarious agents under confidentiality obligations.
Insofar as special legal requirements apply to financial services, for example with regard to banking secrecy, these shall be observed by the contractor.
The contractor is obliged to comply with all data protection regulations in their currently valid version. The contractor must ensure that employees are aware of their data protection obligations and only process personal data on the instructions of the person responsible. Proof of compliance with this obligation must be provided to the Client or its data protection officer upon request.
Upon request, the contractor shall provide the Client with the name(s) and contact details of the contact person(s) for data protection and information security.
If the contractor processes personal data outside the European Economic Area (EU countries plus Iceland, Liechtenstein, Norway) or a country for which the EU Commission has not determined an adequate level of data protection, or if the contractor accesses personal data from countries outside the European Economic Area for which no adequacy decision has been made by the EU Commission, the contractor undertakes to agree to the relevant EU standard contractual clauses or the data processing must be subject to binding corporate rules that are considered by the competent supervisory authority to be sufficient in terms of the adequacy of the level of data protection.
The contractor undertakes to immediately and effectively secure all information and data from the Client using state-of-the-art technology against unauthorised access, alteration, destruction or loss, unauthorised transmission, other unauthorised processing and other misuse.
This includes, for example, protection against malware (e.g. Trojans, viruses, spyware, etc.).
When securing Client data, all precautions and measures in accordance with the current state of the art must be observed in order to archive and restore data stocks in a loss-proof and legally compliant manner at all times.
The contractor’s obligation to retain documents ends eight (8) years after the end of the contractual relationship or six (6) months after delivery of a written request to the Client to collect the documents, unless the Client requests the contractor to destroy them.
Ownership of all results and interim results of the contractor’s contractual services, e.g. service descriptions, specifications, studies, concepts, documentation including installation, usage and operating manuals as well as documentation for maintenance and further development, reports, presentations, consulting documents, diagrams, diagrams, images, as well as individual software, programmes, software adaptations and parameterisations, including the annotated source and object code, as well as all interim results arising in this context and any aids created for this purpose and/or other service results (collectively: “work results”) shall, insofar as they are tangible objects, be transferred to the Client upon delivery of these objects.
In addition, the contractor hereby grants the Client the exclusive, compensated, permanent, irrevocable, sublicensable and transferable right to use and exploit these work results without restriction in terms of space, time and content, upon their creation or, at the latest, upon their handover. This right of use includes all types of use, in particular the storage, loading, execution and processing of data, editing, including by third parties, including the fixed connection with the contractor’s services, the right of reproduction and distribution, the right of performance and presentation, including in public, the right of resale and the right to make changes, redesigns, translations, additions and further developments. The source code of all service results and interim results shall be handed over to the Client in full together with the development documentation. The Client is entitled to grant sub-licences and further rights of use to these rights of use, either for a fee or free of charge, and to transfer rights of use to third parties, using the originals as well as copies and modified versions without copyright attribution.
The Contractor hereby grants the Client a non-exclusive, irrevocable, permanent, spatially unlimited, transferable, compensated right of use to works developed or used by the Contractor prior to the commencement of the contract, other copyrights or other unprotected knowledge (know-how) of the Contractor, as well as to the know-how acquired by the Contractor, its vicarious agents and assistants during the provision of services, to standard software and development tools (“intellectual property of the Contractor”). the contractor hereby grants the Client a non-exclusive, irrevocable, permanent, spatially unlimited, transferable, compensated right of use to use this intellectual property of the contractor, insofar as this is necessary for the use of the work results created by the contractor for the Client. This also includes the reproduction, processing and modification of the Contractor’s intellectual property by the Client or third parties, insofar as this is necessary for the use of the work results.
Notwithstanding clause 13.2, the rights of use for standard software may only be transferred to affiliated companies or third parties for use solely for the purposes of the Client or its affiliated companies.
If the contractor carries out customising on its own software or on third-party software for the Client, it shall grant the Client the rights of use in accordance with Section 13.1. Any provision deviating from this must be agreed in writing in the order, whereby the Client must be granted at least the rights of use in accordance with Section 13.2 for the customising services.
Prior to conclusion of the contract, the contractor shall notify the Client in writing of all standard software, development tools and other works (such as documentation required for the further development and processing of the contractor’s work results) to be used in connection with the development of the work results. These shall be listed in the contract. The contractor shall in particular indicate which version was used and whether it is proprietary or commercially available software. “Proprietary” software is software that has been developed by the contractor itself or to which it has exclusive rights of use, or which can only be obtained from the manufacturer itself and not, like commercially available software, from retailers or intermediaries. Unless otherwise agreed in the contract, the contractor shall grant the Client the rights of use in accordance with clauses 13.2 and 13.3 for standard software, development tools and other works.
If employees or vicarious agents of the contractor are co-authors, the contractor warrants that it has acquired from them a grant of rights of use and exploitation in accordance with clauses 13.1 and 13.2 above.
The Client shall be placed in such a position by the contractor that it can use any invention created in the course of performing the services permanently and free of charge. To this end, the contractor hereby grants the Client a non-exclusive, compensated, irrevocable, permanent, spatially unrestricted right of use to use the invention or the contractor’s share in the joint invention, insofar as this is necessary for the use of the services provided by the contractor for the Client. This includes, in particular, the right of reproduction. The production of copies of the invention and the editing or modification thereof shall be permitted insofar as this is necessary for the use of the services. These rights of use may be exercised by affiliated companies or by third parties solely for the purposes of the Client and the affiliated companies. This also applies to the Client’s right to transfer the rights of use to affiliated companies and third parties.
Corrections, patches, updates, upgrades, additions, new versions or similar provided by the contractor to the Client in connection with the contractual service, as well as the respective updated documentation (collectively “updates”) are also subject to the provisions of this Section 13.
Any sub-licences or rights of use granted shall remain unaffected by any withdrawal from or termination of the contract.
Textually agreed dates and delivery periods are binding. The Client must be notified immediately of any impending delay.
Only the actual delivery of the contractual service at the agreed place of performance on the agreed date shall be decisive for the timeliness of the services. If the contractor is in default with the service, the Client may withdraw from the contract even after the expiry of a reasonable grace period and claim damages in lieu of performance.
In the event of delay, the contractor shall also reimburse the Client for any additional expenses incurred as a result. Further claims of the Client remain unaffected.
An item is only free of material defects if it has the required quality at the time of transfer of risk, in particular if it has the agreed quality. If the quality has not been agreed, an item is free of material defects if it is fully suitable for the contractually stipulated use and at least meets the specifications in its documentation.
A material defect also exists in the event of improper installation by the contractor if the description or installation instructions or the operating, usage or maintenance manual (collectively referred to as “documentation”) is defective or if the service does not correspond to the currently recognised state of the art upon delivery. It is equivalent to a material defect if the contractor delivers a different service or an insufficient quantity.
Any deviation of the contractual service from the specifications and other agreed specifications always constitutes a material defect.
A defect in the documentation exists if a knowledgeable user with the knowledge normally expected for the application of the software cannot, with the help of the documentation and with reasonable effort, either figure out how to use individual functions or solve problems that arise.
The contractor guarantees that the contractual service will also allow common programmes, or at least those intended for the purpose of the contract, to be operated without disruption on the basis of industry standards. It also guarantees that the contractual service complies with the applicable legal provisions at the time of acceptance. If a legal provision changes unexpectedly so shortly before or during the planned acceptance that it is unreasonable to expect the contractor to take the change into account, the contractor may demand a reasonable extension of the agreed dates and deadlines for the part of the contractual service affected by this.
If an acceptance or handover report has been drawn up after the handover of services, the contractor must remedy any defects recorded therein without delay. Defects not recorded in the acceptance or handover report must be remedied by the contractor immediately and free of charge within the limitation period after notification by the Client. The Client shall also be entitled to claims for improper performance if he has not reserved known defects in the acceptance declaration.
The limitation period for material defects is two (2) years from acceptance.
The Client shall notify the contractor immediately of any defects occurring before the expiry of the limitation period and shall cooperate to the extent necessary in the analysis and rectification of the defects. In cases of malfunctions that were not or not only caused by the contractual service, shall apportion the costs incurred for troubleshooting, analysis and rectification of the malfunction appropriately according to the respective contributions to the cause or reimburse the party not responsible for the cause.
The limitation period shall be suspended by a notification of defects by the Client.
The contractor shall provide its services free of third-party rights. In particular, the exercise of the rights of use which the contractor has undertaken to grant shall not be impaired by third-party rights.
If third parties assert claims against the Client for infringement of rights, the contractor shall indemnify the Client against these claims and defend them at its own expense. The Client shall inform the contractor immediately of any third-party claims. If the contractor does not defend such claims or does not defend them to the extent necessary, the Client reserves the right to take all defensive measures.
The Client shall provide the contractor with the information and documents available to it for the defence against such claims.
The contractor shall reimburse the Client for the costs incurred in connection with the defence against such claims, unless these are reimbursed by the third party.
In the event of an infringement of property rights, the contractor may, at its own discretion, modify the service in question or replace it with another service in such a way that no third-party rights are infringed, but the agreed use of the service concerned continues to be guaranteed without restriction, or obtain a right for the Client to continue using the service.
Any additional expenses incurred by the Client as a result shall be reimbursed by the contractor. If the contractor is no longer able to fulfil its performance obligations in accordance with the contract due to the infringement, the Client may withdraw from the contract relating to the infringement.
The limitation period for claims due to legal defects is two (2) years and begins at the end of the calendar year in which the claim arose and the Client became aware of the infringement of property rights and the entitled claimant or should have become aware of it without gross negligence. The limitation period is suspended by a notification of defects by the Client.
The contractor shall remedy defects within the warranty period, taking into account the interests of the Client, either by delivering an improved version of the contractual service or by re-producing the contractual service within a reasonable period of time. The interests of the Client shall be sufficiently taken into account if the contractor chooses the option that least hinders the Client’s business operations. As a short-term measure, a replacement or workaround solution may be provided to temporarily remedy or circumvent the effects of a defect. The defect shall only be deemed to have been remedied once it has been completely remedied within a reasonable period of time. If a Class 1 defect or several Class 2 defects are discovered within the warranty period, the contractor shall generally remedy the defect by repair.
If the rectification of the defect fails or if a grace period set for the contractor expires without success, the Client may, at its discretion, reduce the remuneration or withdraw from the contract in whole or in part. If the Client withdraws from the contract, it shall pay the contractor a reasonable usage fee for the period up to that point, taking into account the defects, based on a linear four-year depreciation.
If the contractor fails to fulfil its obligations, the Client may withhold remuneration for the contractual services until the contractor has fulfilled its obligations in full. The Client may deduct its claims against the contractor for breaches of duty from the contractor’s remuneration.
Further claims, including claims for damages or reimbursement of expenses, remain unaffected.
The statutory provisions shall apply to the liability of the contractor and the Client.
In addition to compensation for its own damages, the Client may demand compensation for damages incurred by other affiliated companies by providing services to itself as if these were damages incurred by the Client itself.
The contract shall commence at the earliest upon conclusion of the contract, unless another date is agreed in the contract, and shall end upon complete performance of all contractual services.
The Client is entitled to terminate the contract prematurely at any time, even without good cause, subject to a notice period of eight (8) weeks. In this case, the Client shall only pay for the services rendered up to the date of termination. The degree of completion according to the agreed schedule shall be decisive in this respect. Acceptance of the services is not required. The Client’s right to terminate the contract in accordance with
Section 648 of the German Civil Code (BGB) remains unaffected.
Either party may terminate the contract without notice for good cause. Good cause includes, in particular, serious breaches of the provisions of this contract or other obligations. Termination must be in writing to be effective.
In the event of termination, the contractor shall return the contractual performance to the Client in full and pay pro rata remuneration in accordance with the degree of completion determined. This also includes all documents and documentation required for further use by the Client. Any copies of the documentation and other documents of the Client remaining with the contractor, regardless of their form, shall be returned to the Client and copies thereof shall be deleted or destroyed.
There shall be no rights of retention or refusal to perform in respect of the software, data or other documents to be surrendered.
Each party may terminate a continuing obligation without notice or withdraw from the contract for good cause.
Good cause shall include, in particular, if insolvency proceedings against the assets of the other party have been rejected due to lack of assets.
Good cause for the Client shall also include if
a. the performance of the contract is recognisably jeopardised by the contractor’s lack of capacity, or
b. the contractor ceases to perform its services, or
c. the contractor or its legal successor fails to perform the service in accordance with the contract despite a reminder with a reasonable grace period, or
d. facts become known which give rise to the presumption of bogus self-employment on the part of the contractor.
If maintenance services are also agreed during the project period, the contractor shall maintain the contractual service at the currently recognised state of the art and free of malfunctions, and shall remedy any defects that occur. The maintenance of customising services shall be carried out together with the maintenance of the overall solution. In the event of withdrawal from the individual software development or customisation contract for the software, software maintenance shall also automatically end (objection enforcement). After expiry of the warranty for the contractual service, only termination of software maintenance is possible. This applies accordingly to individual parts of the contractual service.
If the contractor is to support the Client in the conception of a specification (e.g. requirements or functional specifications) or design concept, or is to create such a specification or concept, this may, in individual cases, be expressly provided for in the contract as a service contract service. In this case, the contractor shall always be obliged to provide the best possible professional execution. The provisions in sections 8.1 and 8.2 apply accordingly to the manner in which these services are delivered. The Client shall check the service delivered by the contractor in this way to ensure that it is proper. In the event of improper performance, the contractor shall be entitled to subsequent performance. If the service provided is not in accordance with the contract, the contractor shall have no or only a reduced claim to the agreed remuneration, insofar as the Client is entitled to a claim for damages as a result. The Client may offset claims for damages against claims of the contractor.
The contractor is only entitled to engage subcontractors to transfer the performance of the service in whole or in part to subcontractors with the prior written consent of the Client.
21.1.1. The contractor is only entitled to engage subcontractors to transfer the performance of the service in whole or in part to subcontractors with the prior written consent of the Client.
21.1.2. The contractor shall oblige the subcontractors engaged to comply with its own obligations towards the Client, in particular with regard to confidentiality and data protection.
21.1.3. The contractor is obliged to contractually ensure vis-à-vis its subcontractors and to demonstrate to the Client upon request that subcontracting to sole traders and civil law partnerships (GbR) as further subcontractors (sub-subcontractors) is excluded, insofar as the service provision is carried out in whole or in part by a principal (owner of a sole proprietorship or partner in a GbR).
21.1.4. The contractor guarantees that the prohibition on the use of subcontractors in clause 21.1.3. is complied with throughout the entire chain of all further subcontractors.
21.1.5. The contractor undertakes to ensure that each of its subcontractors and further subcontractors in the entire chain complies with the statutory minimum wage requirements for its employees.
21.1.6. The contractor must disclose to the Client at any time upon request throughout the entire chain which subcontractors are and were used to fulfil all or part of the contractual obligations owed to the Client.
21.1.7. The contractor shall be liable to the Client for the fault of the subcontractors and vicarious agents employed by it, as for its own fault.
21.1.8. If the contractor violates any of the aforementioned obligations, assurances or reservations of consent in
sections 21.1.1. to 21.1.7., the contractor shall be liable to the Client for all damages resulting therefrom. Furthermore, the parties agree that a breach of the content of this section 21.1. constitutes good cause entitling the Client to terminate the existing contract with the contractor without notice.
21.2.1. The contractor shall ensure that third parties engaged by it also provide the Client directly with the information and documents necessary and useful for the performance of the contract and, upon request, provide the Client with immediate information on matters relating to the performance of the contract.
21.2.2. The contractor may only employ foreign workers who require a work permit to perform its contractual services if they are employees of the contractor. A further prerequisite is that these employees hold a residence and work permit that is valid for the geographical area and time period of the work to be performed. The contractor shall verify that these conditions are met before these employees commence work.
21.2.3. The contractor shall notify the Client if investigations are initiated against it by the competent authority for violation of work permit or residence regulations or for violation of the Act on Mandatory Working Conditions for Workers Posted Across Borders and for Workers Regularly Employed in Germany (Arbeitnehmer-Entsendegesetz – AEntG).
21.2.4. Any use of third parties is only permitted with the prior written consent of the Client if personal data is to be processed outside the European Economic Area (EU countries plus Iceland, Liechtenstein, Norway) or a country for which the EU Commission has not determined an adequate level of data protection, or if personal data from countries outside the European Economic Area or a country for which the EU Commission has not determined an adequate level of data protection is accessed. Consent is conditional upon the third party undertaking to comply with the relevant EU standard contractual clauses, or the data processing being subject to binding corporate rules that are considered by the competent supervisory authority to be sufficient in terms of the adequacy of the level of data protection. Third parties engaged are vicarious agents of the contractor. The contractual agreements between the contractor and the third party must be designed by the contractor in such a way that they correspond to the agreements in the contractual relationship between the Client and the contractor in accordance with clause 12.
In order to provide services for the Client, it may be necessary to cooperate with companies that are commissioned to provide additional (partial) services. The contractor shall cooperate with these companies in a spirit of partnership to ensure the best possible execution of the order for the Client and, if necessary, exchange information relevant to the order with them, taking into account clause 12.
The parties shall not report publicly on contracts and shall treat them as confidential. The contractor is not entitled to use the Client’s name, company logo or registered trademarks or designs as a reference, either online or offline, unless the Client gives its written consent.
The contractor is obliged to inform the Client if the goods provided (including software and technology) are covered by German, EU export control law or the national export control law of the country of origin of export control goods lists (e.g. Common Military Goods List, Annex I to the EC Dual-Use Regulation 428/2009).
In order to fulfil the aforementioned notification obligations, the contractor must provide the Client with the relevant export list numbers (e.g. position on the German export list or Annex I of the EC Dual-Use Regulation 428/2009, etc.), stating the item number (if available or known)
(mailto: einkauf.jena@dako.de).
In addition, the contractor is obliged to inform the Client immediately of any changes relating to export control-relevant data for delivered goods. Questions in this regard should be addressed to the above email address. The contractor shall compensate the Client for any damage caused by a breach of this duty to provide information.
The contractor is obliged not to commit or refrain from committing any acts that could lead to criminal liability for fraud or embezzlement, insolvency offences, offences against competition, granting of advantages, acceptance of advantages, bribery, corruption or comparable offences by persons employed by the contractor or other third parties. In the event of a breach of this provision, the Client shall be entitled to withdraw from or terminate all legal transactions with the supplier without notice and to break off all negotiations.
Notwithstanding the foregoing, the contractor is obliged to comply with all laws and regulations relating to it and its business relationship with the Client.
The contractor must inform the Client in good time of any impending or existing payment difficulties or any possible or applied-for insolvency.
A transfer of the contractor’s rights and obligations is only permitted with the written consent of the Client. This does not apply to transfers to affiliated companies of the Client. Section 354a of the German Commercial Code (HGB) remains unaffected.
Should individual provisions of this contract be or become invalid or unenforceable, this shall not affect the validity of the entire contract, the validity of the article or paragraph containing the relevant provision, or other provisions of the contract.
Insofar as the remaining provisions are not affected, the parties shall make reasonable efforts to agree within a reasonable period of time on lawful and reasonable amendments to the contract that are necessary to achieve, as far as possible, the same effect that would have been achieved by the article or part of the article in question.
There are no agreements between the parties that deviate from or go beyond the written contracts. Amendments and additions to a contract must be made in writing or in a documented electronic format. The Client shall only accept offers from the contractor expressly and in writing; silence shall not be deemed acceptance.
In the event of contradictions between the German version and other language versions of these terms and conditions, the German version shall be authoritative.
