dataLoom.
General Terms and Conditions for IT Services of dataLoom. GmbH
1. SCOPE OF APPLICATION
1.1 Unless otherwise agreed in individual cases, contracts with dataLoom. are concluded exclusively in accordance with the following provisions; by placing an order, the client agrees to our terms and conditions. Conflicting or deviating terms and conditions of the client are only binding for dataLoom. if they are expressly recognized by dataLoom.; this must be done in writing. These terms and conditions also apply if dataLoom. provides services without reservation while being aware of the client's conflicting or deviating terms and conditions.
1.2 These terms and conditions apply to all IT services provided by dataLoom. for the client (eg IT consulting, development, implementation, training and application support services) and all obligations resulting from a contractual obligation with the client.
2. CONTRACT
2.1 A contract with dataLoom. is only considered concluded when the client accepts a written offer from dataLoom. without reservation or receives a written order confirmation from dataLoom. or dataLoom. begins to perform the services. If dataLoom. issues a written order confirmation, it is decisive for the content and scope of the contract, unless otherwise expressly agreed in writing.
2.2 Changes, side agreements and additions as well as any agreements on characteristics or the assumption of guarantees require an explicit agreement to be effective; this must be in writing to be effective.
3. OBLIGATIONS AND PROJECT IMPLEMENTATION
3.1 The parties agree that they will cooperate in a spirit of partnership and exchange information regularly in the course of providing the services. To this end, dataLoom. provides the contractual services in constant coordination with the client.
3.2 Before the start of the service provision, the parties shall each appoint a representative who is responsible for initiating and coordinating all necessary measures for the execution of the order within the scope of the fulfillment of the contract and who is the exclusive point of contact for the other party with regard to all usual matters relating to the respective order. The client's representative is authorized to receive and issue all declarations in connection with the order.
3.3 During the performance of the contract, the parties shall regularly exchange information to the extent necessary regarding the status of the provision of services.
4. PERFORMANCE PERIOD, DEFAULT
4.1 Dates, the non-compliance of which shall cause a contracting party to be in default without a reminder pursuant to Section 286 (2) BGB (binding dates), shall be designated as binding.
4.2 The obligation to comply with deadlines and dates (including binding dates) always requires the complete and timely fulfilment of the respective other party's preceding obligations. If this requirement is not met, the subsequent deadlines of the respective other party shall be extended accordingly.
4.3 dataLoom. is not responsible for delays due to force majeure (e.g. strikes and lockouts outside of dataLoom., official orders, general telecommunications disruptions, etc.) and circumstances within the customer's area of responsibility (e.g. late provision of cooperation services, delays caused by third parties attributable to the customer, etc.). Delays due to force majeure entitle the contracting parties to terminate the contract after a period of 30 days from the beginning of the delay, provided that the disruption significantly affects the provision of services and makes a continuation of the contract unreasonable. However, before termination, the parties will try to find an alternative solution to continue the contract together.
5. CLIENT'S OBLIGATION TO COOPERATE AND PROVIDE
5.1 The parties agree that the IT services covered by the contract require intensive collaboration and cooperation. These services cannot be successfully provided without the cooperation of the client. The obligations to cooperate listed in the following paragraph are therefore primary obligations of the client.
5.2 The client shall provide the necessary cooperation and provision at its own expense and risk as part of a project. In particular, these are:
• Provision of the necessary information and documents;
• Appointment and ensuring the availability of a representative for the duration of the order;
-
Granting the access rights to premises, systems and software programs for the employees of dataLoom. that are necessary for the contractual performance;
• Provision of the necessary hardware and software, including the necessary software licenses;
• Perform regular data backups, i.e. the client is obliged to back up all relevant data at regular, adequate intervals, but at least once a day. dataLoom. is not liable for the loss of data if the client cannot prove that it has performed these security measures;
• Perform agreed tests;
• Conducting and participating in any necessary acceptance tests.
5.3 If dataLoom. believes that the customer's cooperation or provision of services is not provided in a timely manner or is incomplete, dataLoom. will notify the customer of this in text form without undue delay.
6. CHANGE MANAGEMENT
6.1 dataLoom. is obliged to take into account any change requests from the client, provided that these have been submitted in text form and that dataLoom. can reasonably be expected to do so within the scope of its operational capacities, in particular with regard to the effort and time involved. If the review of the change options or the realization of the desired changes affect the scope of services, an agreement must be reached in each case regarding the associated adjustment of the description of the scope of services, the remuneration, the schedules and execution deadlines, as well as all other points that a party considers to require regulation. Such an agreement must be made in writing in each case.
6.2 If the client's request for changes requires an extensive review or adjustment of the scope of services, dataLoom. reserves the right to demand additional compensation for the resulting expenses. This will be calculated based on the contractually agreed hourly rates. dataLoom. will inform the client of the estimated costs before conducting the review and obtain written approval.
6.3 Unless otherwise agreed, dataLoom. will carry out the work without taking the client's change requests into account in the event that the client requests a change and until a written agreement is reached. If a comprehensive review of the additional work is necessary, dataLoom. is entitled to request a separate order.
7. ACCEPTANCE AND PARTIAL ACCEPTANCE
7.1 Insofar as the services of dataLoom. require acceptance, the client is obliged to do so. Minor defects that do not seriously affect the suitability of the service for the contractually agreed purpose do not entitle the client to refuse acceptance. The client's right to assert statutory warranty claims remains unaffected.
'Minor defects' are defects that do not significantly affect the functionality of the contractual services and that do not incur significant costs or time to rectify. These defects do not entitle the client to refuse acceptance; instead, they must be rectified by dataLoom. as part of the subsequent performance.
7.2 Acceptance is deemed to have been granted if
• the client refuses to declare acceptance in violation of the above clause 7.1 or refuses to participate in a joint acceptance test despite a timely request to do so;
• the client does not declare acceptance in writing after a joint acceptance test or refuses acceptance in writing without specifically identifying the defects preventing acceptance, although it has been requested to do so by dataLoom. with a notice period of at least seven working days.
7.3 For self-contained partial services, dataLoom. has the right to partial acceptance.
7.4 Intellectual services that require acceptance are considered accepted if the client does not explicitly express reservations in writing within 30 days of their provision, specifically naming the defects. If a reservation by the client proves to be unjustified, the client must bear the costs incurred.
7.5 In the event of defects that prevent acceptance, dataLoom. is to be given at least three opportunities for subsequent performance within a reasonable period of time. The client grants dataLoom. access to the subject of the contract for troubleshooting and error correction, either directly and/or by remote data transmission, at dataLoom.'s discretion.
7.6 If the supplementary performance has failed even after the third reasonable deadline has passed, the client may – without prejudice to any existing claims for damages – reduce the agreed remuneration or withdraw from the contract. DataLoom's obligation to pay compensation or to reimburse the client's expenses is conclusively regulated in section 9.
8. WARRANTY, STATUTE OF LIMITATIONS
8.1 The customer is only entitled to the warranty claims under Section 634 Nos. 2 to 4 BGB under the condition in Section 7.5; Section 9 also applies to compensation and the reimbursement of wasted expenses.
8.2 The client can only demand the reversal of the transaction in the event of defects that would have entitled him to refuse acceptance in accordance with Section 7.1.
8.3 The limitation periods, except in the case of intent, gross negligence, personal injury, claims under §§ 1, 4 of the Product Liability Act and in the event of fraudulent concealment of the defect, are as follows:
8.4 generally for rights arising from material defects: 12 months from the start of the statutory limitation period;
8.5 for claims arising from defects of title: 12 months from the start of the statutory limitation period, provided the defect of title is not a right in rem of a third party that allows the third party to demand the return of the services of dataLoom.;
8.6 for claims for damages or reimbursement of wasted expenses not based on material defects or defects of title: 12 months from the start of the statutory limitation period.
9. DAMAGES AND REIMBURSEMENT OF EXPENSES
9.1 dataLoom. is only liable for damages and reimbursement of expenses in accordance with the following provisions:
9.1.1 DATALOOM is only liable
for intentional or negligent acts and
for culpable violation of essential contractual obligations. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract, whose violation endangers the achievement of the purpose of the contract and on whose compliance the client regularly relies.
9.1.2 If dataLoom is liable in cases of simple negligence, the amount of compensation is limited to the foreseeable damage typical for the contract. In addition, liability is limited to a maximum of €250,000 per claim for financial losses, unless the foreseeable damage typical for the contract is less.
9.1.3 Insofar as liability for damages and reimbursement of expenses is excluded or limited under the above provisions, this also extends to the personal liability of the organs, employees and other staff, representatives and agents of dataLoom. and also applies to all claims in tort (sections 823 et seq. BGB).
9.1.4 The liability for damages resulting from injury to life, limb or health, product liability under §§ 1, 4 ProdHaftG and fraudulent conduct or guaranteed condition remain unaffected by the above liability provisions. DATALOOM is only liable for the recovery of data if the client has ensured that lost data can be restored with reasonable effort. The customer is therefore obliged to regularly back up data and programs at appropriate intervals.
9.2 Neither party shall be liable for delays or failure to perform its contractual obligations in the event of force majeure, such as war, civil unrest, natural disasters or fire, sabotage, aircraft crashes on computer center areas in which systems are operated for the client, epidemics, quarantine, government measures, strikes and lockouts by third parties or similar. This does not apply to payment obligations.
9.3 Attacks on computer systems from outside are also to be regarded as cases of force majeure that cannot be averted with the current state of technology with a technically and economically justifiable amount of effort and that functionally impair the affected computer system to a more than insignificant degree.
10. Confidentiality
10.1 The parties shall treat as confidential and not disclose to third parties any and all trade and business secrets of which they become aware in connection with the performance of the work, including and to the extent that they relate to third parties.
10.2 Trade secrets also include technical know-how, operating methods, security measures, customer data and sources of supply (“information”).
10.3 The duty of confidentiality and the duty to treat information, documents and files confidentially also applies to employees of the respective party, insofar as they are not involved in the cooperation in the company's interest and are not authorized to process the matters relating to them.
10.4 The disclosure of information to third parties requires the prior written consent of the other party. The consent requirement does not apply to the companies affiliated with the respective party within the meaning of Section 15 of the German Stock Corporation Act (AktG), legally appointed subcontractors and consultants who are contractually or legally bound to confidentiality.
10.5 The confidentiality obligation does not apply to ideas, concepts, know-how and techniques, or to information that was already known to the parties or becomes known to the parties outside of the cooperation in accordance with this agreement.
10.6 The parties are released from the confidentiality obligation if they are required to disclose the information received due to legal provisions or orders of state bodies, but not before the facts of the case have been reported in writing to the other party. If the affected party appeals against the disclosure of the information, the other party shall continue to be bound by its contractual confidentiality obligation.
10.7 The comprehensive confidentiality obligations continue even after the termination of this contractual relationship.
11. Data protection
11.1 Insofar as the client commissions dataLoom. to process personal data, dataLoom. will process this data by way of order processing in accordance with Art. 28 GDPR, following the instructions and exclusively for the purposes of the client. In such a case, the parties will conclude an agreement in accordance with Art. 28 para. 3 GDPR, in which the processing of personal data is regulated in detail.
11.2 The parties shall fulfill their respective obligations under Articles 5, 24 and 32 (4) of the GDPR and ensure that the employees working for them are bound to data secrecy in writing and are instructed accordingly.
12. Rights to services
12.1 dataLoom. grants the client ownership of the items to be provided permanently under the contract (with the exception of software) as soon as they have been created and in their respective processing status, provided that the client has paid the agreed remuneration for them. dataLoom. is obliged to provide ownership free of third-party rights.
12.2 dataLoom. grants the client simple, transferable, temporally, spatially and contextually unrestricted rights of use to the results developed individually for the client, in particular to the software created and other copyright-protected work results created individually for the client, subject to full payment of the agreed remuneration. Software is a result developed individually for the client if it was developed exclusively for the client and can be run independently, i.e. independently of standard software, and is only connected to standard software via interfaces.
12.3 The client receives a simple, non-transferrable, temporally and spatially unlimited right to use services (e.g. software applications and tools, such as integrated financial planning, personnel cost planning, etc.) that were not created by dataLoom! as part of the order for the client.
12.4 Regardless of the scope of the transfer of rights to the client, dataLoom is permitted to use ideas, concepts, acquired know-how, etc. for the further development of software and in the context of orders from other clients, in compliance with the confidentiality obligations under Section 10, unless otherwise agreed in writing.
12.5 dataLoom. will provide the contractual services free of third-party property rights (copyrights, patents and other intellectual and industrial property rights) that exclude or restrict use according to the contractually intended purpose.
12.6 If third parties assert justified claims against the client for infringement of property rights in accordance with the above clause 12.5. for services provided by dataLoom. and used by the client in accordance with the contract, the following provisions shall apply:
12.6.1 The parties will immediately notify each other in writing if claims are asserted against them by third parties for infringement of property rights.
12.6.2 dataLoom. will assume the judicial and extrajudicial defense against such claims at its own expense, provided that the client notifies dataLoom. of such claims in writing without delay, provides dataLoom. with all information necessary to defend against the claims and grants dataLoom. other appropriate and reasonable support and in particular leaves all decisions regarding the further use of the software that is the subject of the claim, the type of legal defense and any settlement to dataLoom. and only if dataLoom. is informed of such claims before claims for defects of title become time-barred.
13. Remuneration, terms of payment
13.1 dataLoom. receives the agreed compensation for the services provided by dataLoom..
13.2 All prices are exclusive of the value added tax applicable at the time of performance.
13.3 Unless otherwise agreed, the client pays dataLoom. a flat fee per fixed time unit. If a fee has been agreed based on a daily rate, it is calculated on the basis of an eight-hour working day.
13.4 For compensation based on time, dataLoom. provides proof of performance through records. dataLoom. will present the records to the client regularly, at least monthly.
13.5 Unless otherwise agreed (payment schedule), dataLoom. invoices its services at the end of each calendar month.
13.6 dataLoom. will create a verifiable invoice for each payment claim, which lists the services in detail and meets the tax requirements. Payments are to be made within 21 days of receipt of the invoice. In the event of a disagreement, the undisputed partial amount is to be settled. The default interest rate is 8% per year.
13.7 Unless otherwise agreed in writing, dataLoom. shall receive a flat rate of 200.00 euros per day and traveling employee for travel expenses; an itemized bill is not required. Additional incidental costs will only be reimbursed with the client's prior approval.
14. Start of contract and termination
14.1 A project begins with the conclusion of the contract, if no other date has been agreed, and ends with the complete provision of the agreed services by dataLoom..
14.2 The client may terminate an order at any time with a notice period of two weeks. In the event of a termination with notice, dataLoom is entitled to full compensation for the services provided up to the effective date of termination, as well as 20% of the additional agreed compensation. Section 648 of the German Civil Code does not apply.
14.3 If the provision of the contractual services is delayed by more than 90 days due to force majeure or the fault of the client, dataLoom (the contractor) is entitled to terminate the contract extraordinarily with a notice period of two weeks. In this case, dataLoom retains the right to remuneration for the services provided up to the time of termination as well as for the additional costs incurred due to the delay.
14.4 Each party may terminate an order without notice for good cause.
14.5 To be effective, notices of termination must be in writing as required by law.
15 Termination of contract
15.1 After termination of the contractual relationship, the parties shall, upon request, return to each other all documents, work results and other information that they have received as a result of or in connection with the cooperation. This does not apply to documents or work results for which the client has been granted a right within the meaning of sections 12.1 - 12.3, to correspondence and to other documents and records that must be kept in accordance with legal requirements.
16 Loyalty, Non-solicitation and Right of Instruction
16.1 The parties undertake to be loyal to each other. They shall inform each other without undue delay of all circumstances that arise in the course of their cooperation and that may influence the provision of services. In particular, the parties shall refrain from actively recruiting or enticing away employees of the other party who are or were involved in the execution of the order (e.g. as freelancers or as employees of a third party). The above obligation shall continue for a period of 12 months even after the termination of the contract.
16.2 Furthermore, the parties undertake to immediately notify each other of any intentions of termination or change that may have come to their attention regarding key personnel employed by the other party for the execution of the order. The parties shall define the key personnel in writing.
16.3 dataLoom. provides its services independently and on its own authority. The employees used by dataLoom. are subject only to the right of dataLoom. to issue instructions. The client is obligated not to integrate the employees used by dataLoom. into the client's business.
17 Subcontractors
17.1 dataLoom. must notify the client in advance and in writing if it intends to transfer the provision of contractual services to third parties. The client is entitled to object to the use of a third party within seven working days, at least in writing. However, the use of the third party may not be unreasonably refused. Affiliated companies of dataLoom. within the meaning of Section 15 et seq. AktG are not third parties in the sense of the contract.
17.2 dataLoom. has to pass on the obligations regarding data protection and confidentiality from the contract to the third parties involved in writing and to prove this to the client in writing upon request.
18 Assignment, right of retention and set-off
18.1 The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. The regulation of § 354a HGB remains unaffected.
18.2 A right of retention can only be asserted for counterclaims arising from the respective contractual relationship.
19 Final Clauses
19.1 Insofar as these terms and conditions require the written form, this refers to the written form as defined by section 127 of the German Civil Code (BGB), which is satisfied both by the electronic exchange of signed documents and/or declarations (scan copies) and by the exchange of electronically signed documents and/or declarations. The transfer of contractual rights or obligations by dataLoom. requires the prior written consent of the client to be effective, unless it is a company affiliated with dataLoom. within the meaning of § 15 et seq. AktG.
19.2 The parties agree to seek an out-of-court settlement through mediation in the event of a dispute before going to court. The costs of mediation shall be borne equally by both parties. If no agreement can be reached within 60 days of the start of mediation, the parties shall be entitled to take legal action.
19.3 The place of jurisdiction shall be Stuttgart. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of German international private law.
19.4 Should one or more of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions.