Terms and Conditions

General Terms and Conditions for Sales and Services of operational services GmbH & Co. KG

Stand: 06.03.2009

I. Applicability of these Terms and Conditions

Subject to deviating agreements in particular cases the conclusion of contracts with us shall be governed exclusively by the following Terms and Conditions; when placing an order the customer thereby accepts our Terms and Conditions. Adverse or deviating terms or conditions of a customer shall only have binding effect on us if we have expressly confirmed them. Our Terms and Conditions shall also apply when we provide our services in the knowledge of a customer’s adverse or deviating terms or conditions.
These General Terms and Conditions are applicable to all our sales and services and to all of the duties that might result from any relationship with the client under the law of obligations. For entrepreneurs and legal entities incorporated under public law our Terms and Conditions shall also apply for all future business relations.

II. Conclusion of Contract

A contract shall only be deemed concluded with us when the customer either accepts our offer without reservation or when he receives our written confirmation of his order or when we commence with the delivery of goods/rendering of services. If we issue a written confirmation following the customer’s order, this confirmation will define the subject and the scope of the contract, unless expressly agreed upon otherwise.
Amendments, collateral agreements and additional provisions as well as any respective stipulation of condition or the issuance of guarantees shall require an explicit agreement in order to become effective; this must be in writing.

III. Execution of Order

Unless expressly agreed upon otherwise the object of our sales and services need only be of such condition or have the technical characteristics etc. as expressly defined by the contract; our contractual obligation are guarantees in a legal sense only if we accept liability without fault or if we explicitly state them to be such guarantees; any guarantee must be made in writing. We reserve the right to make technical and design changes to the descriptions and specifications in our brochures, catalogs or similar sales documents in the same or better quality and we may exchange parts and components against such of same or better technical standards; for the customer no rights will arise resulting from this conduct. Neither these descriptions nor such statements or any advertisements (also those made by the manufacturer) shall comprise a declaration of guarantee. Unless required by law we owe advice only if agreed to as a main contractual duty.
Software sold by ourselves will either be delivered on data carriers we typically use or we will give the customer online access to our server for downloading purposes. Unless expressly agreed upon, future improvements and developments of software are not within the scope of delivery.
The customer shall be obliged to give us all information necessary for the delivery of goods and/or rendering of services, and to do so in full. We are under no obligation to check the customer’s data, information or other services for completeness and correctness unless individual circumstances arise in a particular case which gives cause to do so or we have contractually and expressly accepted such obligation. Where work is to be done at the customer’s place of business our personnel shall be provided with sufficient workstations and equipment free of charge.
If we have to do work outside our company premises, the customer shall be obliged to take all necessary measures in order to comply with existing duties of care towards third parties unless otherwise determined either by the nature of the business or by agreement with the customer. We shall be entitled to refuse execution of the delivery of our goods and/or rendering of our services as long as the necessary measures have not been taken.
Notwithstanding our responsibility to carry out the duties contractually owed we may without reservation hire third parties for the fulfillment of the contract. If employees whose participation was agreed upon under the contract are unable to attend work due to reasons for which we are not respon-sible, we may substitute other suitable employees for them.

IV. Changes to the Scope of Services

Subsequent changes to the scope of services must always be expressly agreed upon by us. Prerequisite in any case is that an understanding has been reached concerning the associated change to the description of the scope of services, the compensation, the timetables and deadlines as well as all other subjects any one party thinks are necessary; both consent and understanding must be in writing in any case.
We may specifically demand a reasonable extension of deadlines for our sales and services and in addition an extra period for resumption as well as the payment of costs which we incur by checking a request for changes.

V. Customer’s Duties in Case of Consulting and Software Development Services

Due to the high complexity and customeroriented nature of computer and software products the customer and we must closely cooperate in order to achieve the project’s goals. The parties therefore undertake to mutual consideration, to inform each other completely and fully and to warn each other, as a precaution, of any risks while furthermore protecting each other from any disturbing influence including such from third parties.
The customer shall undertake it as a main contractual duty to ensure that all duties to participate in the performance and all his contributions agreed upon will be available in the necessary quality and in the time agreed upon or which is necessary to realize the project in time without further costs for us. As far as it is necessary for the project’s success the customer will especially provide his own personnel in sufficient number and competent contacts for the entire duration of the project. Where the parties have stipulated certain requirements for thirdparty systems operated by the customer or third parties in the specifications or in another section within the contract, the customer is responsible for meeting those requirements. Any requests for information which in our opinion are necessary for the project’s success must be answered without delay.
Should information or material provided by the customer prove to be faulty, incomplete, unclear or objectively nonexecutable, the customer will make the necessary corrections and/or amendments immediately after we have informed him of such circumstances. This shall especially apply for rough and detailed specifications. Faults or functional deficiencies of machines or material provided by the customer will immediately be repaired or rectified.

VI. Rights of Use

Unless specifically and contractually agreed upon otherwise, we grant with the delivery of software to the customer a nonexclusive right to use the software. The right of use will be specified in the agreement specifically concluded pursuant to the software license or in equivalent written agreements (i.e., license for one or several CPUs, development license or runtime license). The license granted to the customer shall include the right to copy the software from the data carrier delivered onto the agreed hardware for the use specified in the contract. The use of the software within a network depends on our written confirmation in advance of the use. If the delivered software was not produced by us we will, as a rule, only act as intermediary for a license contract with the producer. The customer shall therefore agree to the software license of the producer to which we will make reference; this license agreement will be authoritative for the scope of the right of use.
If the customer plans to use the software on different hardware he has to delete the software from the hardware used until then.
The right of use granted to the customer allows the making of a machine code copy for data protection and documentation purposes. The copy must be marked as such by the customer, who must refer to the original software and explicitly state that this is a copy of the original software that has been exactly specified.
The areas of use, the performance as well as all other specific attributes of the software are defined by the documentation we provide with the software.
The granting of sublicenses as well as the renting/leasing or lending of the software to others is allowed only with our prior written consent.
Independently from the scope of the right of use granted to the customer we may in any case use ideas, concepts and knowhow gained for the further development of software.

VII. Terms and Deadlines

Any schedule or milestones for a project shall serve as an orientation within the course of action to be followed by the project. Deadlines shall be binding only if they have been explicitly agreed to as binding deadlines; this must be done in writing. To the extent dates and deadlines have not been agreed upon as being binding, we shall not be in default until the customer has unsuccessfully declared a further reminder with an adequate extension of deadline in writing for the delivery of goods/rendering of services we owe. In any case terms shall only commence after the customer has fully complied with the requirements under his duty to cooperate and – in case it was so agreed – upon receipt of a payment on account. Any later requests for changes or delayed cooperative acts on the part of the customer will delay the deadlines for delivery/performance accordingly.
If the delivery of goods/rendering of services owed by us is delayed for force majeure reasons (such as industrial disputes, disturbance of operations, transport impediments, lack of raw materials, governmental measures – including the incidence of such circumstances at the level of our suppliers – as well as the case of not obtaining supplies oneself in due time), we shall be entitled to choose, at our discretion, to either fully or partially rescind the contract or postpone the delivery of goods/rendering of services for as long as the hindrance lasts. The customer will be informed immediately of the nonavailability of the services or goods. Should we rescind the contract, we will furthermore refund to the customer any compensation already provided. Claims of the customer for damages shall be excluded.
If the customer fails to fulfill his duties to cooperate or to contribute to the project or to provide goods, be this in part or completely, the relevant deadlines will lose their binding effect and we will not be in default. After an unsuccessful reminder we shall be entitled to claim any damages resulting therefrom, including any respective additional expenditure. In this case the risk of accidental loss or accidental deterioration of the delivery item shall be passed onto the customer at the time the default in accepting delivery has occurred. If the customer does not fulfill his duties to cooperate or to contribute to the project before an adequate extension of deadline following a further reminder, we are – in addition – entitled to terminate the contract with immediate effect. In this instance, we shall be entitled to claims for damages and compensation that is at least equal to the amount specified in Section 649 German Civil Code (BGB); further claims by us shall remain unaffected. We have the same rights if, due to the delays, we cannot bring the project to an end within reasonable time or if we can do so only at substantially higher costs, i.e. because of other commitments.
If – for reasons we are responsible for – we are either in default or the performance of the delivery proves impossible as provided for in Section 275 para. 1 of the German Civil Code, or if we are able to refuse to perform according to § 275 para. 2 and 3 of the German Civil Code, we shall be held liable exclusively as provided for by the law, but subject to the limitations of liability set forth hereunder in Section XII.

VIII. Transfer of Risk

The risk of accidental loss or accidental deterioration of the delivery item shall be passed over to the Customer with its dispatching, notwithstanding the case that we might have agreed to bear the delivery expenses or to take on additional obligations to be performed or we deliver in part. Section VII. 3., sentence 3 hereof shall apply.

IX. Acceptance

To the extent the formal acceptance of the customer of our delivery of goods/rendering of services is required by law, the customer shall be obliged thereto. Minor defects not seriously impairing the suitability of the delivery of goods/rendering of services with respect to the object of the contract, do not entitle the customer to refuse the acceptance, regardless of his right to assert his legal claims of fault.
The acceptance is considered granted if
- - the customer refuses the acceptance by way of breaching Section IX. 1 above or refuses, in spite of having been requested in a timely manner to do so, to participate in the joint testing procedure for acceptance, or
- - the customer does not declare the acceptance in writing immediately after joint testing although he was requested to do so within a period of five working days, unless the customer specifically names the faults which cause his refusal of acceptance within this deadline; we will point out to the customer the relevance of his behavior at the beginning of the period.
In the case of limited severable performance we have a right to acceptance in part.
Intellectual performances shall be considered accepted unless the customer expresses reservations in writing within 30 days after having received such performances in written form and he specifically names the faults; we will point out to the customer the relevance of his behavior at the beginning of the period. In the event of such a reservation, we will review our performance. Should a reservation prove to be unjustified, the customer must bear the costs incurred unless he acted in simple negligence.

X. Prices and Payments

Only those prices shall be binding which are stipulated by us, to which – if mandatory – the respective VAT is to be added as prescribed by law. Unless otherwise agreed upon we are entitled to receive a refund for expenses.
If a payment by the hour is agreed upon, the price list will apply which is in force at the time of performance unless a different agreement has been made. There will be no increase in prices for performances which will be delivered within four months of the conclusion of the contract. Hours which have begun will be billed in full.
Our invoices are to be paid – without deduction of cash discount and free of additional expenses – in accordance with the agreed schedule of payment, otherwise within 30 days of the date of the invoice. Should we – in individual cases – accept checks or bills of exchange on the basis of express agreements, the acceptance does also not allow for a deduction of cash discount and is pending full discharge of the debt. Any respective discount charges shall be borne by the customer. We shall only acknowledge payments by checks as satisfaction of the contractual terms if our account has been unreservedly credited to the amount of the respective sums. We do reserve the right to require adequate payments on account and advance payments.
In case of several debts due and owing by the customer, we shall determine which debt is to be counted against payments made. The customer may only offset payments where his counterclaims are legally established, undisputed or acknowledged by us in writing. The same applies to the assertion of rights to retention.
Should we receive notice of circumstances after conclusion of the contract which seem to endanger our claims against the customer because of the lack of the ability to perform, we shall be entitled to deliver due goods/render due services only against prepayment or provision of security and we shall also be entitled to rescind the contract after expiry of a deadline set for the prepayment or provision of security; Item X. 2., sentence 3 shall apply accordingly.
In case of default in payment the customer owes interest for late payment as provided for by law, unless we prove higher damages.

XI. Warranty Claims

Should the goods we have delivered or the services we have rendered have any faults, the customer shall give us an opportunity for subsequent performance within a reasonable time unless such subsequent performance cannot be reasonably accepted by the customer in an individual case, or special circumstances are given which, taking into consideration the interests of both parties, justify an immediate rescission of the contract. In any case, we shall be entitled to choose between remedying the defect or delivering goods / rendering services free of faults.
If standard products of thirdparty manufacturers are used for which we have only acted as intermediaries for a contract (Item VI. 1 sentence 5 of these Terms and Conditions), the claims of the customer shall only be directed at the thirdparty manufacturer respectively concerned.
The customer is under the obligation to check the goods delivered/services rendered for obvious faults. Obvious faults like missing data carriers or manuals, as well as damage to data carriers which may be noticed without effort must be objected to in writing within one week of the delivery of goods/rendering of services. Faults which become apparent later but before the period of limitation must be objected to in writing within a week of the customer noticing them. If the customer does not fulfill his obligation to check goods and/or services or to object to faults, the goods delivered/services rendered are deemed accepted also concerning the particular fault.
The customer must make claims of fault in writing naming all faults noticed and the circumstances under which they came to light. It is not considered a fault if a fault the customer objected to cannot be reproduced. If the customer manipulated the hardware or software in any way, he may make claims of fault only if he can prove that his manipulations were not the cause for the fault. Should it become apparent that the fault the customer has declared does not exist, and especially in cases in which a fault asserted cannot be reproduced, we shall be entitled to demand reasonable compensation for our efforts and costs unless the customer has acted in simple negligence.
Should the subsequent performance fail, should we refuse to perform it or should the customer not be able to reasonably accept it, the customer shall be entitled to the usual claims of faults the law provides for (rescission of the contract, diminishment of the agreed remuneration, selfexecution, damage payments or compensation for futile expenses). Claims for damages shall be given only as far as Item XII. of these Terms and Conditions provides for.
Should the fault consist in a merely slight deviation from the respective condition agreed to, we shall at our discretion only grant the customer either the right to subsequent performance or to a reasonable diminishment of the agreed remuneration. Should no condition have been stipulated, the same shall apply to any deviation from the suitability for the use provided for in the agreement otherwise the usual suitability, provided that it is only an immaterial deviation. The suitability shall be assessed against what is usual in goods or services of the same type and the standards the customer can expect as a result of the type of goods or services.

XII. Liability and Right of Rescission

We are exclusively liable for damages in accordance with the following provisions:

On those grounds, we are liable
- - for intentional or grossly negligent behavior
- - for any culpable breach of essential contractual duties As far as we are liable in cases of slight negligence, our liability shall be limited to compensation for damages up to a reasonable and predictable amount.
As far as we are liable in cases of slight negligence, the following shall apply in each case: for damage to assets per instance of damage, a limitation to a maximum of EUR 50,000 or, should the performance consist of the delivery of a software program, to the amount of a onetime license fee or the amount due for twelve months of use; the highest amount in each case will apply; in the case of damage to assets, there is a limitation to a maximum amount of EUR 500,000 per instance of damage. Otherwise liability for damage to property and assets shall be excluded.
We refer to Section VII. 3. and 4. of these Terms and Conditions. The liability for damages resulting from any injury to life, limb or health and product liability pursuant to §§ 1, 4 of the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG) shall remain unaffected by the above provisions on liability.
We are only liable for the retrieval of data if the customer made certain that lost data may be retrieved at reasonable cost. The customer is therefore under the obligation to regularly save the data and programs in adequate intervals.
As far as our liability for compensation for damages is excluded or limited pursuant to the above provisions, this shall also extend to the personal liability of members of our bodies, our employees and other workers, representatives and vicarious agents, and shall also apply to all claims arising from tort (Sections 823 et seq. of the German Civil Code), but shall not apply to claims based on §§ 1, 4 of the German Product Liability Act.
The right of the customer to rescind the contract as a result of an infringement of our contractual duties due to reasons for which we are not at fault and which do not consist of a fault of goods delivered or services rendered shall be excluded.

XIII. Statute of Limitations

The customer‘s claims of fault shall be statutebarred within one year from the statutory start of the period of limitation. Claims set forth pursuant to Sections 438 I No. 1 and 2 and 634a I No. 2 of the German Civil Code shall be excluded.
Any other contractual claims of the customer due to the breach of duty shall, where the customer is an entrepreneur, be statutebarred within one year from the statutory start of the period of limitation.
The periods of limitation provided for by law shall not be affected by the above provisions in the following cases:
- - for damages resulting from any injury to life, limb or health;
- - for any other damages based on intentional or grossly negligent failure to comply with our contractual duties by ourselves, our legal representatives or vicarious agents;
- - for the customer‘s right to rescind the contract due to our failure to comply with our contractual duties for which we are at fault and which does not consist of a fault of goods delivered or services rendered;
- - for claims resulting from fraudulent concealment of a defect and a guarantee within the meaning of Section 444 or Section 639 of the German Civil Code;
- - for claims to remuneration for expenses pursuant to Section 478 para. 2 of the German Civil Code.

XIV. Retention of Title

Any and all delivered goods delivered to entrepreneurs shall remain in our exclusive ownership until all claims for the purchase price have been satisfied and until all claims arising from the business relation are fulfilled. No pledging, security transfer of ownership or other exploitation shall be allowed unless the acquisition of the goods deliberately occurred for resale purposes. In this case the customer shall have the revocable right to resell the retained goods in his own name within the framework of an orderly conduct of a business, as long as he is not in default of his financial obligations and no covenant exists between the customer and his purchasers which would prohibit an assignment.
We shall acquire coownership in the instances of adjunction or commixtion, whereby our share of the ownership will be determined according to the value of the retained goods (i.e. our contract price including value added tax without deduction of cash discount); to the extent that the customer acquires sole ownership by virtue of law, he shall transfer to us such share of ownership corresponding to our previous share. He shall hold the goods for us in custody henceforth. If any processing of the goods takes place we shall be deemed manufacturer of the new product.
The customer herewith assigns to us all claims with regard to the retained goods including all claims arising from the balance on current account, which stem from resale or any other cause in law (e.g. insurance, tort); such assignment is by way of security only and correlates with the amount of the value of the retained goods. The same shall also apply to the case that a resale was not admissible according to the aforesaid restrictions. We do herewith accept the assignment. In case we should only be coowners of the retained goods, the anticipatory assignment shall be restricted to that part of the claim which is equivalent to the share of our coownership on the basis of the value as per invoice.
The customer shall have the revocable right to collect the assigned debts in his own name and for his own account. This authorization to collect debts may be revoked if the customer does not properly meet his financial obligations. In case of a justified revocation, the customer, or his legal successor or receiver shall upon our demand announce the assigned claims and names of the debtors including their addresses. In addition, he shall provide us with all necessary information regarding the debt collection and also hand over all relevant documents and indicate the assignment to the respective debtor without delay.
In the event of seizure of the retained goods by a third party, the customer will point out our ownership and inform us without delay in order to enable us to enforce our ownership. Moreover, he will bring at his expense a thirdparty action against execution without delay in accordance with § 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO).
In case of a default in payment by the customer we shall be entitled to reclaim the retained goods at his expense and at the same time to rescind the contract, provided that the legal requirements are fulfilled.
We shall release at our discretion the aforementioned securities on demand of the customer, to the extent that their value considerably exceeds the value of the secured claims by more than 10 %. Retained goods will be appraised at an estimated value reduced by one third, assigned claims at nominal value reduced by one third.

XV. ThirdParty Industrial Property Rights

We warrant that the products we have individually created are free from thirdparty property rights which will diminish or prevent the contractual use by the customer and we will indemnify the customer against all claims of third parties because of an infringement of industrial property rights and all related costs. This does not apply if we have only acted as intermediaries for a contract with a thirdparty producer (see Item VI. 1. sentence 5 of these Terms and Conditions); in this case the claims of the customer are subject to the thirdparty producer’s terms and conditions.

XVI. NonDisclosure and Data Protection

To the extent that a party gains knowledge of the confidential information of the other party or the respective agents in the course of performing the agreement (particularly regarding technical information and commercial and operational matters), it is obligated to treat this confidentially. The confidentiality obligation shall remain effective even after the termination of the agreement. Any stipulations regarding rights to software or other project results shall remain unaffected by the aforementioned NonDisclosure agreement.
In the scope of the order’s objectives we may process a customer’s data or have it processed by third parties according to the pertinent data protection laws.
We may include the customer’s name in a reference list. Further references towards the customer will be made in mutual understanding with him.

XVII. Place of Performance and Covenant not to Assign

The place of performance for all goods delivered/services rendered shall be Frankfurt am Main, Germany.
The assignment of a customer’s claims against us which arise from the business relationship is excluded.

XVIII. Place of Jurisdiction and Applicable Law

The exclusive legal venue for all claims against entrepreneurs and legal entities incorporated under public law which result from this business relationship is Frankfurt am Main, Germany. This includes cases of claims based on checks, torts and cases of third party notice. We reserve the right to also sue customers at their place of general jurisdiction.
If we perform crossborder deliveries/services, Frankfurt am Main is the exclusive legal venue for disputes arising out of the contractual relationship between the Customer and us (Article 23 of the European Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters or Article 17 of the European convention on jurisdiction and the enforcement of judgments in civil and commercial matters). We reserve the right to also sue the customer at their place of general jurisdiction or call upon any court which has jurisdiction according to said European Council Regulation or the European convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
All business legal relations arising out of or in connection with the contractual relationship between a customer and us are governed exclusively by the substantive law of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sales of Goods (CISG) shall not apply.

XIX. Final Provisions

Should one or more of the provisions of this agreement be or become ineffective, this shall not affect the validity of the remaining provisions. In place of the invalid provision, new provisions shall be inserted which will in terms of their meaning come closest to the economic goals of the agreement with due observance of the parties’ interests.
All our previous General Terms and Conditions for Sales and Services are substituted by these provisions.

Notice according to Section 33 of the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG): A customer’s data will be saved electronically.

Information Security