General Terms and Conditions of Business and Services
Bottrop, 12.10.2022
The following General Terms and Conditions of Business and Services (hereinafter referred to as GTC) shall apply to all contracts, deliveries, products, services and other performances. Deviating regulations of the contractual partner are hereby expressly contradicted.
The issuer of this document is entitled at any time to amend or supplement these GTC, including any attachments, with a reasonable period of notice.
Contracting party
On the basis of these GTC, a contract is concluded between the customer, respectively the user, respectively the orderer and storb.IT UG (limited liability) hereinafter referred to as provider, the contract is concluded. Made regulations are also valid for the legal successors of the parties.
Validity
These GTC retain their validity indefinitely and internationally. The T&C shall only become invalid upon the publication of a newer version of these provisions. After publication, the current version will automatically come into force.
Reservations
Until full payment has been made, delivered goods and services remain the property of the provider. The provider reserves the right to provide a service equivalent in quality and price or not to provide a promised service in case of unavailability.
Prices
All price quotations within these GTC as well as in contracts concluded with each other, are net plus the statutory value-added tax valid in the Federal Republic of Germany at the time of invoicing, unless they are explicitly marked otherwise as "gross". Unless otherwise agreed, the hourly rate shall be 158.48 EUR/hour, and the kilometer rate shall be 1.39 EUR/km.
Compensation
If the contracting parties agree on a minimum purchase/minimum quantity, the provider undertakes to make this quantity available to the customer as free capacity within the agreed term. Agreed hourly rates shall only apply on the basis of the agreed minimum purchase/minimum quantity. If the customer does not make use of services in the amount of this minimum quantity, he has to pay the difference even without having received services. If the ordered capacities are not utilized for reasons for which the Provider is responsible, only hours worked shall be subject to remuneration. In the latter case, remaining capacities expire free of charge and without replacement. Agreed hourly rates for services shall apply within and beyond the purchase quantity. If different hourly rates have been agreed for internal and external services, the following shall apply: The hourly rate indicated with "internal" shall apply to services rendered within the Provider's business premises. Outside, the hourly rate indicated with "external" shall apply. The hourly rates indicated are valid Monday through Friday 8 am - 6 pm. Outside this time a surcharge of 25%, Sundays and holidays of 50% on the agreed hourly rates applies. For travel and driving times, the agreed mileage rate applies to all distances driven within the scope of the order (arrival and departure, special trips, etc.). If a vehicle is provided by the customer or if the customer drives in carpool, the kilometer rate is reduced by 0.30 EUR per kilometer. By applying the kilometer rate, working time is no longer claimed for travel time. Bridge, ferry and toll costs will be charged to the customer separately according to the receipt. Rail and air travel are booked by the provider on his own responsibility. Any costs incurred are to be borne by the customer. The mileage rate does not apply to such trips; travel times are charged at the agreed hourly rate. Second class is agreed for rail travel, economy class for air travel. In the case of travel within Germany lasting several days, hotel costs shall be invoiced to the customer at a flat rate of EUR 80/night, and for travel abroad at a flat rate in accordance with the table "Tax Treatment of Travel Expenses and Travel Expense Reimbursements" (BMF, as amended). For work performed by the Provider outside its business premises and resulting in an absence of more than 8 hours, the Customer shall pay a lump sum for additional subsistence expenses in accordance with the table "Tax Treatment of Travel Expenses and Travel Expense Reimbursements" (BMF, as amended). The flat rate shall not apply if the customer provides sufficient catering. The parties agree on an invoicing according to quarter hours started.
Orders, quotations, orders
The provider reserves the right not to process orders. Orders that have not yet been executed can be cancelled free of charge up to 60 days before the planned provision of services without giving reasons. This also applies to shorter periods, provided that the order or delivery is less than 14 days in the past. Outside this period, 10% of the order value is due to cover the costs of the provider. The revocation must be communicated to the provider by means of a clear declaration (e.g. a letter sent by post, fax or e-mail). The provider provides a sample cancellation form, which the customer does not have to use. To meet the deadline, it is sufficient that the notification of the exercise of the right of withdrawal is sent before the expiry of the withdrawal period. Personalized goods, services that have been started, items with best-before dates as well as opened licensed products and similar products are not subject to revocation. In the event of revocation, the customer shall immediately return the goods affected by the revocation. If the customer has already made payments in advance to a canceled order, a refund will take place within 30 days.
Delivery terms
For goods deliveries, the shipping method and packaging will be chosen by the provider at its best discretion. The cost of shipping goods shall be borne by the customer. If a right of withdrawal exists and is used, the customer bears the cost of return. We reserve the right to make a partial delivery within a reasonable scope for the customer, provided that this appears advantageous for a speedy processing. Additional travel or shipping costs shall only be incurred if expressly agreed. Special forms of shipment requested by the customer will be charged with a local surcharge. If the supplier is not responsible for a permanent obstacle to delivery, in particular force majeure or non-delivery by his own suppliers, although a corresponding covering transaction was made in good time, the supplier has the right to withdraw from a contract with the customer in this respect. The customer will be informed immediately and received services, especially payments, will be refunded. The risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer upon handover, in the case of shipment upon delivery of the goods to the selected service provider for this purpose. If the shipment or delivery is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the goods are ready for delivery.
Invoicing, default of payment
Invoicing takes place at the beginning of a month. As a rule, all services of the previous month are invoiced with a payment term of 14 days after receipt without deduction. If the amount of an invoice is less than 100 Euro, invoicing can be postponed until the total outstanding amount exceeds this value. After the expiration of the payment term, which is determined by calendar, the customer is in default even without a reminder. If the customer is in default of payment, the provider is entitled to pause future services until outstanding invoice amounts are paid in full. Furthermore, it is agreed that the payment term for future invoices can be reduced or services will only be provided against advance payment. In the event of late payment, the provider is entitled to charge interest on arrears at a rate of 9 percentage points above the base interest rate as well as reminder fees of 2.50 euros per reminder level. The assertion of further costs remains reserved. If the delay in payment is longer than 60 days, the provider is entitled to assign his claim to a collection partner. Higher costs, which arise as a result of the long delay in payment, the customer has to bear in full. A right of retention of the customer, which is not based on the same contractual relationship, is excluded. The set-off with claims of the customer is excluded, unless these are undisputed or legally established.
Warranty, claims for defects
The warranty for services rendered is 6 months after acceptance. The acceptance is considered completed at the latest as soon as the customer confirms the acceptance in writing (also valid when formulated within an e-mail) or with payment of the service unless objection is raised within 30 days after invoicing. Claims for defects can be asserted within this period. The provider undertakes to remedy the defective service within a reasonable period set by the customer. The provider is entitled to choose between repair and new delivery. If a removal of the defect is not carried out by the provider after a reasonable period of time or if the repair fails, claims arising from this service expire. If the customer has already paid for the services in whole or in part, these payments must be refunded to the customer's account within 30 days. The customer is obligated to immediately inspect the deliveries and services provided by the provider for contractual identity, freedom from defects and completeness. The notification of defects must be made immediately after the customer becomes aware of the defect. If the customer fails to make such notification, the goods or services shall be deemed approved also with regard to such defect. If the goods or services are deemed to have been approved, recourse claims against the provider are also excluded.
Performance
The portfolio of the provider covers the following listed areas as well as any additionally agreed services: Seminar preparation, implementation as well as follow-up, business consulting, strategy consulting, project and change management, ORACLE Database (technology consulting, development, optimization, license consulting, audit support, training), general development (C#, HTML, JavaScript), administrative IT activities, system support for selected ERP systems, technology consulting in the heavy industrial sector. The Provider may use its own employees, or third party service providers at its discretion to fulfill the order. The Provider shall remain fully responsible to the Customer for the proper performance of the contractual services. The Provider shall perform its activities on its own premises. Insofar as an operational presence is required in individual cases, the Customer shall provide the corresponding operational facilities after prior consultation in each case. The Customer shall provide the Provider with all information, aids and documents required for the performance of its activities free of charge. The provider organizes the execution and the course of his service himself. He is not subject to any instructions of the customer and is free in the organization of his activities. However, special operational concerns of the customer in connection with the activity will be taken into account. The provider is not bound to any specifications regarding the place of work or working hours. Project-related time specifications of the customer are to be observed as well as technical specifications, as far as these are necessary for the proper execution of the contract. Furthermore, the provider is entitled to refuse orders of the client without giving reasons. The Provider shall have no authority to issue instructions to the Customer's employees. Both parties to the contract undertake to inform each other in the event of any difficulties or foreseeable delays in the execution of the contract. As proof of performance, a list with date and hours worked shall suffice at the latest with the invoice.
Prevention of the provider
If the provider is unable to meet a contractually agreed date for the provision of the service as a result of force majeure, illness, accident or other circumstances for which he is not responsible, the provider is entitled to make up for the agreed service on a new date to be agreed. Insofar as a case of impossibility exists, the liability of the provider is limited to the amount of the fee paid for the cancelled appointment.
Licenses
Customer is responsible for ensuring that access licenses to its servers (Windows CALs, Oracle NUPs, etc.) required to perform contract work are always available in sufficient quantities. Licenses for the use of remote maintenance software, with the exception of the software mentioned in the section "Remote Maintenance", shall be provided by the customer to the extent necessary for the performance of the order, free of charge for the duration of the work. In the case of third-party work, these obligations also apply with respect to third-party systems.
Remote maintenance
If access is provided from outside, the parties agree that the remote maintenance software shall be TeamViewer in the most current version. The provider shall hold the necessary licenses free of charge. If both parties can agree on VPN access, the customer shall provide the necessary access (licenses, users) for the VPN connection, remote desktop and other necessary areas free of charge.
Liability
All services are provided in accordance with German legal principles. For liability cases within the EU, the provider is liable. For the application and use of the services provided by the provider outside the territory of the EU, the customer is liable on his own responsibility and in full. The liability of the provider is limited to twice the partial order value, but not more than 3,000,000 euros for personal injury and property damage and 300,000 euros for financial and all other damages. Claims for damages by the customer are excluded, unless otherwise stated in the following. This also applies to the representative and vicarious agents of the provider, if the customer makes claims for damages against them. The provider is only liable for damages in case of intent, gross negligence, culpable injury to life, body and health, defects that have been fraudulently concealed or whose absence he has guaranteed. In the event of culpable breach of cardinal obligations, the Provider's liability shall be limited, even in the case of slight negligence, to the reasonably foreseeable damage typical for the contract within the above-mentioned limits. The liability of the provider for injury to life, limb or health exists without limitation within the scope of the statutory provisions.
Data protection
In connection with the initiation, conclusion, processing and reversal of deliveries and services on the basis of these GTC, data is collected, stored and processed by the provider. This is done within the framework of the statutory provisions. The provider does not pass on any personal data of the customer to third parties, unless he would be legally obliged to do so or the customer has expressly consented to this beforehand. If a third party is used for services in connection with the handling of processing operations, the provisions of the Federal Data Protection Act shall be complied with. The data provided by the customer in the course of placing an order will be processed exclusively for the purpose of contacting the customer within the scope of contract processing and only for the purpose for which the customer has provided the data. The data will be disclosed only to the extent necessary to the shipping company, which takes over the delivery of the service or goods according to the order. The payment data will be passed on to the credit institution commissioned with the payment. If the provider is subject to retention periods under commercial or tax law, some data may be stored for up to ten years. At the request of the customer, personal data will be deleted, corrected or blocked in accordance with the legal provisions. Free information about all personal data of the customer is possible. For questions and requests for deletion, correction or blocking of personal data as well as collection, processing and use, the customer can contact the provider by mail, e-mail or telephone.
Secrecy
Particular importance shall be attached to confidentiality and security. All oral or written information and materials exchanged by the Parties directly or indirectly for the purpose of performing the Order and marked as confidential or whose confidentiality results from their subject matter or other circumstances shall be considered confidential. The contracting parties undertake to treat all confidential information that has come to their knowledge directly or indirectly as strictly confidential and not to disclose it to third parties, exploit it or use it without the prior written consent of the other party. The contracting parties shall take all appropriate precautions to ensure confidentiality. Confidential information shall be disclosed only to those employees or other third parties who are required to receive it by virtue of their duties. The contracting parties shall ensure that the persons to be deployed also sign an appropriate confidentiality agreement. The following procedures or better in terms of security shall apply to exchanged data and documents: Paper documents shall be destroyed in accordance with security level P4, electronic data carriers in accordance with security level E4, other data carriers appropriately, but at least in the respective category 4 according to DIN66399. Electronic data may only be stored in encrypted form - at least symmetrical encryption with a key length greater than 127 bits. After deletion of the electronic data, the previously used data carrier areas must be overwritten twice within 24 hours at the latest. Paper documents must always be kept locked - at least VdS protection category BZ applies to locking cylinders, and a suitable equivalent protection category applies if electronic locks are used. The obligation to maintain absolute confidentiality shall continue even after termination of the cooperation. Upon request, documents handed over, including all copies made thereof, as well as working documents and materials, shall be returned, unless already destroyed.
Competition
In principle, there is no prohibition of competition. Particularly in the case of contacts with customers and competitors of the respective other party, the contractual partners undertake to maintain complete confidentiality, in particular with regard to technical and economic information as well as intentions, experience and knowledge. Customer and Supplier agree not to poach each other's employees. This shall apply for the entire duration of this contract as well as 6 months thereafter.
Rights of Use to Services
The customer is granted the number of simple rights of use required for business operations for the services provided by the provider (computer programs, concepts, documentation, etc.). This includes the right to edit and rework. The right is unlimited in time and place. The distribution and public accessibility of such services by the customer are not permitted during and also after the termination of the contractual relationship, unless they were obviously provided for this purpose.
Contract extension/term
The contract is concluded by placing the order. The start date for contracts concluded in writing is the date on which the last party has provided your signature, but no later than the date of commencement of service provision by the provider. In the case of contracts concluded without a signature, the date on which the order is placed shall be deemed the start of the contract. If an automatic contract extension has been agreed, the contract shall be extended by the agreed term in each case without the intervention of either party, unless it is terminated by either party three months before the end of the period of validity. The notice of termination must be sent by post to the company address of the other party with a certificate of delivery. The right to extraordinary termination for good cause is reserved. An important reason for termination for the customer is in particular the violation of essential contractual obligations as well as the discontinuation of services. For the Provider, an important reason for termination is the cessation of payments by the Customer or the filing of an application to open insolvency proceedings against the Customer's assets. Other important reasons include, in particular, significant disagreement about the design and execution of the order, which makes further cooperation impossible, or default in performance.
Prohibition of assignment and pledge
Claims or rights of the Customer against the Provider may not be assigned or pledged without the Provider's consent, unless the Customer has demonstrated a legitimate interest in the assignment or pledge.
Language, Jurisdiction, Applicable Law
Contracts shall be drawn up in German. The further execution of the contractual relationship shall be in German. The terms and conditions and their execution shall be governed exclusively by the laws of the Federal Republic of Germany. German law shall also apply without restriction to deliveries to foreign customers. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The place of jurisdiction for all claims arising from these General Terms and Conditions, as well as all other conditions concluded, is the registered office of the Provider. The partners undertake to conduct a mediation procedure with the aim of reaching an amicable settlement with the help of a jointly commissioned mediator in the event of any disputes before taking legal action. The mediation procedure shall be initiated by written notification of one of the partners. The partner shall propose a mediator. The proposal is not binding for the other partner. If the partners are unable to agree on a joint mediator within one month of receipt of the notice, the mediation proceedings shall be deemed to have failed.
Writing requirement
Any oral side agreements shall not be deemed binding. Amendments or supplements to concluded agreements must be made in writing to be effective. This also applies to a waiver of this written requirement.
Salvatory clause
If individual provisions of these GTC and/or concluded contracts are or become invalid, this shall not affect the validity of the remaining provisions. The parties shall then implement the conditions with a replacement provision that comes closest to the purpose of the omitted provision.