Terms and Conditions for Consulting of DUB Business Software
§ 1 Subject Matter of the Contract
§ 2 General Principles of Service Provision
- 1. The following provisions apply to all services provided by DUB Business Software,
hereinafter referred to as subcontractor, in particular the following services:
- Software modifications or support for such activities;
- Installation of programs and programming of necessary interfaces or support for such activities;
- System consulting and support, either on site, via remote connection, telephone, fax or other
media (e.g. video communication);
- Training of customer employees at the customer site.
- 2. The details of each service commissioned (description of service, schedule,
remuneration, etc.) shall be the subject of a separate agreement.
- 3. The Terms and Conditions of subcontractor shall apply exclusively.
§ 3 Remuneration and Payment
- 1. The customer shall specify the services it requires in the form of individual
agreements. Subcontractor shall determine the planning of the services.
Subcontractor can refuse to render the services if it deems them to be unreasonable
or if it does not have sufficient capacity available.
- 2. In providing the services ordered, subcontractor shall pay due regard to the
requirements laid down by the customer and shall render the services according
to the data processing regulations valid at the time in question.
- 3. Using its know-how and experience, subcontractor shall make every attempt
to achieve the best possible results.
- 4. Assurances as to software characteristics require express written
confirmation from subcontractor.
- 5. The subcontractor is solely responsible for taking care of his health insurance etc.
as well as for the taxation of his fees and exempts his clients from any claims by a
third party concerning these matters.
§ 4 Duties of the Customer
- 1. All services shall be invoiced according to the actual expenses incurred.
Invoicing shall take place on the basis of the activity reports customary at subcontractor.
The customer shall have a period of 2 weeks in which to file written objections
to the data contained therein.
- 2. All rights on the service rendered by subcontractor for the client are transferred
to the client at the moment of full payment of the agreed upon remuneration.
- 3. The customer may only offset claims that are uncontested or fixed by a
court of law. The customer may not assign claims to third parties.
§ 5 Deadlines
- 1. The customer shall provide the working environment (e.g. hardware and
operating system) to which the service is related, according to subcontractor specifications.
- 2. The customer shall provide the required degree of support when subcontractor renders
its services. In particular, the customer shall precisely define its specifications
in writing, answer questions without undue delay, provide an appropriate amount of
cooperation, perform interim inspections of service work, tests, etc.
- 3. The customer's coordinator shall provide the equipment required by subcontractor
to perform the services (workplace, computer time, access to hardware and software,
use of telecommunications equipment, authorizations, etc.).
- 4. The customer shall nominate a contact person to supply subcontractor with any
necessary information and to make or obtain decisions without undue delay.
§ 6 Defects in Services
- 1. Deadlines are not binding unless they are explicitly described as such.
- 2. The subcontractor shall not be held responsible for delays due to strikes,
lockouts, force majeure, shortage of employees through no fault of subcontractor,
delays caused by the supplier, intervention by authorities, and similar circumstances.
If Subcontractor is hindered in the performance of its services by any of the above
circumstances or because it is waiting for cooperation or information from the customer,
deadlines shall be deemed to have been extended by the duration of the delay and by a
reasonable start-up time once the delay has ended. Subcontractor shall inform the
customer about the delay.
- 3. Should subcontractor performance be delayed, the customer shall be entitled,
after granting two periods of grace, to terminate the contract in part or in full.
Warnings and notices of periods of grace must be in writing. Periods of grace must
be at least 12 working days. The services already rendered shall be invoiced as
specified in § 3.
§ 7 Liability
- 1. If defects occur, subcontractor shall initially be given the opportunity
to remedy the defect or to offer alternative solutions. The customer shall describe
defects in as much detail as possible. The customer shall be obliged to cooperate
in repair work as described in § 4.
- 2. § 7 shall apply with respect to claims for damages. Other claims shall
be excluded, e.g. claims for expenses incurred as a result of defect remedy by third parties.
§ 8 Confidentiality and Safekeeping
- 1. Subcontractor shall only be liable for damages, irrespective of legal cause, e.g. non-performance,
impossibility, warranty, delay, culpa in contrahendo, breach of collateral duties or tortious act) only:
a) in cases of intent, where subcontractor shall be liable to pay damages in full;
in cases of gross negligence and absence of an undertaking as to qualities, subcontractor
shall only be liable for the amount of the foreseeable damage which would have been prevented
by the exercise of due care and the undertaking as to qualities.
b) in all other events only in the case of delay, impossibility and breach of a major
obligation that jeopardizes the purpose of the contract. The amount of a damage shall
invariably be limited to EUR 10,000 per damage claim, rising to a maximum of EUR 15,000 for
all claims arising out of the contract.
Contributory negligence may be claimed (cf. § 8) Contributory negligence may be claimed.
Statutory liability for personal injury shall remain unaffected.
- 2. If the customer wishes an explicit insurance against cases of damage, the parties
will make an individual arrangement.
- 3. A limitation period of one year shall apply to claims made by the customer on
the basis of non-performance, impossibility, delay, culpa in contrahendo, breach of
collateral duties or annulment of the contract. This limitation period shall begin
when the customer becomes aware of the claim.
- 4. Subcontractor warrants that the transfer of rights to the customer does not
infringe the rights of any third party, the use of these rights by the customer impairs,
limit or exclude.
§ 9 Concluding Provisions
- 1.The subcontractor undertakes to treat in confidence all information, which it
receives from the customer, and to delete all data and destroy or return all
documents made available to it on the written request of the customer. Subcontractor
shall observe German data protection laws. Subcontractor may process electronically
any data provided by the customer.
- 2. The subcontractor undertakes to keep all items subject to the contract secret from
third parties for an unlimited period, as far as no other regulation was agreed upon.
- 3. The customer undertakes to keep all items subject to the contract secret from third parties.
Employees, etc., who have access to the subject matter of the agreement must be informed
in writing about subcontractor's copyright and their duty of confidentiality, which
they must undertake to observe.
- 4. The customer shall protect the items subject to the contract, particularly source
programs and related documentation, in such a way as to preclude improper use.
- 1. Amendments to the contract must be made in writing. Oral subsidiary
agreements shall not be valid.
- 2. The place of jurisdiction for all disputes arising between the concerned parties
of this agreement hereto shall be Munich. Prior to any legal proceedings, the parties
hereto shall be obliged to attempt to settle the dispute out of court, employing the
services of a competent third party if necessary, unless such an attempt is likely to be unsuccessful.
- 3. Contracts shall be governed exclusively by German law.
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