TERMS & CONDITIONS
General Terms and Conditions of clockworkX GmbH
(hereafter referred to as “Contractor”)
1. Scope of Application
1.1 The following General Terms and Conditions (GT&Cs) shall apply to all agreements for the provision of services and supply of goods entered into by the Contractor and the Customer, in each case in the version in force at the time of the awarding of the contract in question.
1.2 Unless the parties stipulate otherwise, all extension of offers and performance of services and supply of goods by the Contractor shall be governed by these GT&Cs.
1.3 Any terms and conditions of the Customer that diverge from these GT&Cs shall only be deemed to form part of the contractual arrangements entered into by the parties where the Contractor previously and expressly gives its consent thereto in writing.
1.4 The following provisions shall only apply in the context of dealings with entrepreneurs/enterprises within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and with public law entities or legal funds.
2. Conclusion of the Agreement
2.1 An agreement shall be deemed to have been concluded upon the Customer’s acceptance of an offer extended by the Contractor.
2.2 Agreements regarding the provision of services or the supply of goods by the Contractor (offer and acceptance) shall be in writing. Changes or additions to the aforementioned contracts shall require a statement signed by the Contractor and the Customer. All other explanations or notices, which are legally material and which the Customer delivers to the Contractor, shall also be in writing. Agreements made orally by an agent or other auxiliary person of the Contractor require the written agreement of the Contractor to become effective.
2.3 The Contractor shall only be bound by the terms of an offer extended by it for a period of FOURTEEN (14) days from the date of the Customer’s receipt thereof. If the Customer does not accept a binding offer of the Contractor within this period, the Contractor shall be entitled to revoke the offer.
2.4 The acceptance of the offer shall include all essential information, particularly the offer number, the offer date, the commissioned number of hours and the price separately showing the tax on sales/purchases or VAT.
3. Provision of Services and or Delivery of Goods
3.1 The Contractor provides its services and supply its goods exercising due care and according with all applicable statutory requirements of the Federal Republic of Germany, in particular with the safety-related regulations.
3.2 Unless otherwise agreed between the contractual partners in individual cases, the place of performance is the place of business of the Contractor. If required, the Contractor will provide the agreed services on the Customer premises. The Contractor’s employees do not enter an employment relationship with the Customer in these cases either. The Customer will only send requests regarding the services to be performed to the responsible employee named by the Contractor and will not issue any instructions to other employees of the Contractor.
3.3 If an employee is prevented from performing the service due to illness, vacation or for other reasons for which the Contractor is not responsible, the Contractor will immediately employ another suitable employee at the request of the Customer. In addition, the Contractor can replace an employee with another suitable employee at any time.
3.4 The due dates and required time periods for the provision of services and the supply of goods are agreed in writing in the offer of the Contractor and their acceptance by the Customer.
3.5 If the Customer provides required items, assistance and information or payment, including but not limited to documents or materials, authorizations, clarification of technical requirements or other information or any form of payment with delay, the due dates and required time periods for the provision of services and the supply of goods shall be postponed in accordance with the Customer delay.
3.6 Delays in delivery based on force majeure or on events for which the Contractor is not at fault and which significantly hamper the delivery or make it impossible for a time, including in particular but not limit to strikes, lockout, official orders, transportation disruptions, etc., including when these occur at the Contractor´s suppliers or sub-suppliers, shall extend the agreed period to at least the duration of the these circumstances. If the obstacle to delivery lasts for longer than THREE (3) months, then both parties shall be entitled to withdraw from the contract in whole or in part. Claims for damages shall be excluded. The same applies if the Contractor does not receive supplies from its suppliers or if these are not received on time, without the Contractor being responsible in this event.
3.7 If the supply of goods shall be postponed in accordance with the Customer delay.
3.8 The Customer bears responsibility for the project and overall results in the legal sense.
4. Qualitative Performance Disorder
4.1 If, due to circumstances for which the Contractor is responsible, services are not performed, not in accordance with the contract or inadequately, the Contractor has the obligation to provide these services within a reasonable period of time if and insofar as the client notifies this in writing within SEVEN (7) calendar days after the service has been provided. If this does not succeed, the client is entitled to terminate this contract in writing without notice.
4.2 Claims under 4.1 become statute-barred TWELVE (12) months after full-service provision or premature termination of the contract.
5. Conferral of Rights of Use by the Customer/Warranties and Representations
5.1 The Customer shall confer upon the Contractor all rights that are necessary – from a temporal, a geographical and an objective perspective – for the performance by the latter of its services in accordance with the agreement. This shall apply regarding any trademarks, copyrights, registered design rights and patents in particular.
5.2 The Customer declares and warrants that it is entitled to confer the rights specified in Section above upon the Contractor.
5.3 The Customer furthermore warrants that it is entitled to take the actions and issue the declarations provided for by these provisions and the agreement in question.
5.4 The warranties given by the Customer shall extend to the legally unobjectionable nature of the data, products and/or items in the Customer’s possession in terms of third-party rights, in particular copyrights, rights to a name, rights to privacy and industrial property rights (e.g. patents, utility models, trademarks, registered designs). Should any third parties take action against the Contractor and/or third parties commissioned by the latter to assist it in the fulfilment of its obligations on grounds of an infringement of any such rights, the Customer shall, upon a corresponding request from the Contractor, indemnify the Contractor and/or the third parties in question against any such third-party claims and reimburse any costs incurred in connection with the mounting of a legal defense against those claims.
6. Conferral of Rights of Use by the Contractor
6.1 The Contractor reserves the right of ownership, the intellectual property rights and corresponding exploitation rights in all technical documents and commercial information from the Contractor as well as solution approaches in proposals and in any other documents of the Contractor as well as in all manufactured models, drawings, devices, goods and other documents which are created by the Contractor for the performance of the contract without restrictions. Providing the Intellectual Property to the Customer shall not be deemed as providing any rights therein to the Customer. The Intellectual Property shall not be made available to third parties without written consent of the Contractor.
6.2 The Contractor shall not be obligated to create any rights, in particular trademarks, copyrights, registered design rights or patents, in the context of the performance of its services.
6.3 Should any such rights accrue in the context of the performance of its services, the Contractor shall confer upon the Customer a simple right to use the intellectual property rights created by the Contractor and/or its employees and/or vicarious agents in the context of the performance of its services, which right shall not be subject to any limitations of a temporal or geographical nature and shall not be eligible for assignment and/or sub-licensing.
6.4 Should a third party bring a claim against the Customer on grounds of an infringement of proprietary rights resulting from the exercise, in accordance with this agreement, of the rights of use pursuant to this Section, the Customer shall inform the Contractor accordingly in writing without delay and entrust the latter with the amounting of a defense against such claim. The Customer shall assist the Contractor in mounting such a defense.
6.5 The contracting party whose employee created the Intellectual Property during the performance of the contract shall be entitled to the corresponding intellectual property rights, in particular the right to file patents or register trademarks. Both parties to the contract shall be jointly entitled to the corresponding intellectual property rights if employees of both contract parties significantly contributed to creating the Intellectual Property during the performance of the contract.
7.1 The amount of the remuneration to be paid to the Contractor for the performance of its services shall be calculated on this basis of the rates per hour, day, week, month or year specified in the offer in question.
7.2 All prices indicated in the offer shall be subject to the applicable statutory rate of VAT. Where the amount of remuneration is subject to tax, the Contractor shall specify the tax rate and the amount of VAT separately in its invoice.
7.3 In the case of work carried out at the place of performance between the hours of 10 p.m. and 6 a.m. or on Saturdays, Sundays or public holidays, the Contractor shall be entitled to impose a FIFTY PERCENT (50 %) surcharge in addition to the amount of the remuneration stipulated in the offer.
7.4 Unless the parties stipulate otherwise, the Contractor shall issue an invoice for the amount of the remuneration to be paid by the Customer for the services performed at the end of each calendar month.
7.5 Proof of performance and milestone acceptance are deemed to have been approved if and insofar as the client does not raise reasoned objections in writing within SEVEN (7) days of receiving a corresponding notification. This also applies if the client has received the proof of performance but has not signed it. If, in order to compensate for increases in personnel or other costs, the list-based billing rates customary for the Contractor are increased, the Contractor can increase the prices of this service contract that are not yet due, insofar as they are affected by the development of costs. An increase in the charge rates for services rendered within FOUR (4) months after the conclusion of the contract is excluded.
7.6 The Customer shall furthermore be obligated to reimburse the Contractor for all its necessary additional expenses and outlay in connection with the performance of its services. Costs for travel completed by the employees of the Contractor in their provision of services and supply of goods to the Customer shall be reimbursed by the Customer in accordance with the offer of the Contractor.
7.7 The Customer shall pay invoices of the Contractor without any discount by bank transfer to the bank account designated by the Contractor on the invoices at the agreed payment dates. If no other payment dates are agreed, the Customer shall be obligated to transfer the total amount indicated in the invoice issued by the Contractor into the bank account specified in the invoice within THIRTY (30) days. The timeliness of the payments shall be governed by the receipt of the payment in the bank account of the Contractor.
7.8 Should the Customer fall into arrears on its payments, the Contractor shall be entitled to levy default interest in the amount of NINE (9) percentage points above the base interest rate. The right of the Contractor to claim other damages for late payment shall not be affected.
8. Obligation to Co-Operate
8.1 The Customer shall be obligated to comply with all the co-operation obligations incumbent upon it and to assist the Contractor in the performance of its services to the extent reasonably necessary. In particular, the Customer shall provide the Contractor with all the data, documents and information required by the latter for the due fulfilment of its obligations in accordance with both the offer in question and these provisions.
8.2 The Customer shall also urge its employees or agents to co-operate and, when necessary, ensure that appropriately qualified employees and agents who are familiar with and proficient in the processes and applications for the services to be performed are on hand in the necessary number, to the necessary degree and for the necessary period of time. In particular, it shall provide the Contractor, in advance of the latter’s performance of its obligations, with the details of an appropriately qualified contact person who shall assist the Contractor in performing its services to the extent reasonably necessary. Such contact person shall, upon a corresponding request from the Contractor, be placed at the latter’s disposal for the entire duration of the term of the agreement and shall coordinate the necessary contact between the Contractor and the Customer’s employees.
8.3 To the extent that this is necessary for the Contractor’s performance of its services and may reasonably be expected of the Customer, the Customer shall grant the Contractor and its vicarious agents’ access to its premises, networks and computer systems. The Customer shall furthermore and at its own expense provide the Contractor and its vicarious agents with the working materials required by the latter for the performance of the services to the necessary extent, in particular access to its organizational and technical IT/telecommunications infrastructure, information, office materials, data, test data, software products and hardware.
8.4 All Customer or Contractor items, information and documents of any kind provided to the other party respectively shall remain the property of the party providing the items, information and documents respectively.
8.5 The Customer and the Contractor have the obligation to return all items, information and documents of any kind provided by the other party, respectively, in their possession in its entirety and in proper condition at the end of the agreement.
8.6 The Customer transfer the Contractor the non-exclusive, non-transferable right to use Customer’s company name and logo without notice or further consent in connection with certain promotional materials solely to identify Customer as a Contractor´s customer. The promotional materials may include, but are not limited to, brochures, video tape, internet website www.clockworkx.de, press releases, advertising in newspaper and/or other periodicals and any other materials relating the fact that the Customer is a customer of Contractor. Contractor acknowledges the ownership of the Name and Logos by the Customer.
9.1 The Contractor shall be liable for any financial losses incurred only if these are due to a grossly negligent or willful breach of obligation on its part or on the part of one of its legal representatives or vicarious agents. In cases of intent/ willful breach of obligation, Contractor’s liability extends to the full loss. In cases of gross negligence, Contractor’s liability is limited to the amount of foreseeable loss that in the context of the type of transaction and contractual arrangements in question would have been prevented through the exercise of due care.
9.2 The limitation of its liability shall not apply in the case of any damage incurred as a result of grossly negligent or willful breach of an obligation the due fulfilment of which is essential for the proper execution of this agreement and may ordinarily be relied upon by the Customer, or as a result of loss of life, physical injury or damage to health due to a negligent breach of obligation on the part of the Contractor or a willful or negligent breach of obligation on the part of one of its legal representatives or vicarious agents.
9.3 The compensation for damages or reimbursement of expenses due to a breach of essential contractual obligations through simple negligence is limited to the contract-typical, foreseeable damage, however, up to a maximum of ONE HUNDRED THOUSAND EUROS (€ 100,000) unless there is willful or gross negligence.
9.4 The extent of any liability on the part of the Contractor shall be limited to the amount of the damage that may be deemed likely to occur.
9.5 The Contractor shall be liable for any loss of data only in the amount of the expense which would typically be incurred in connection with the recovery of duly and routinely backed-up data. The obligation to replace does not include the expense of retrieving lost data and information.
9.6 The Contractor shall not be subject to any more extensive liability, in particular but not limited to damages or reimbursement of expenses on the part of the client, as expressly stated in this agreement, for whatever legal reason, claims due to business interruption, lost profit, loss of information and data or consequential damage.
9.7 Insofar as the client is responsible for the violation of property rights, claims against the contractor are excluded according to section 5.4. The same applies if the infringement of property rights is based on special specifications of the client, is caused by an application that was not foreseeable by the client or is caused by the fact that the service result is changed by the client or used together with service results not provided by the contractor.
9.8 Should the Contractor, in the context of the performance of its advisory services, make use of any examples or presentations relating to other, previously implemented projects or previously developed concepts, the specific examples and/or presentations shall not form part of the advisory services to be performed and shall not be specifically intended for use by the Customer. Should the Customer use these examples/presentations without previously modifying them in accordance with its own requirements, the Contractor shall not be liable for any damage that may be incurred as result of such use.
9.9 The provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by the foregoing limitations on liability.
9.10 All liability claims accruing on grounds of a breach of obligation which is not due to the defective nature of the Contractor’s performance of its services shall become time-barred after a period of SIX (6) months. All other liability claims shall become time barred after a period of ONE (1) year. The application of the provisions of Section 202(1) of the BGB shall remain unaffected.
9.11 Requirements for the liability of the contractor according to section 6.4 are that the Customer immediately notifies the Contractor in writing of claims by third parties due to a violation of property rights, does not recognize the alleged violation and only leads any dispute, including any out-of-court regulations, in agreement with the Contractor.
10. Termination of the Agreement
10.1 Unless the offer stipulates otherwise, the term of the agreement shall be of unlimited duration.
10.2 Each of the parties shall be entitled to terminate the agreement with ONE (1) month notice to the end of a given calendar month.
10.3 In addition, the parties shall be entitled to terminate the agreement on exceptional grounds for cause.
10.4 Notice of termination of the agreement must be in writing. The transmission of such notice of termination via fax or e-mail shall be expressly permitted.
10.5 The Contractor is entitled to withdraw from the contract in case the Customer files an application for the opening of insolvency proceedings, executes a statutory declaration in accordance with § 807 ZPO or if the insolvency proceedings regarding its assets and liabilities have been opened or the opening of the insolvency proceedings was rejected due to lack of the required assets.
11. Force Majeure
11.1 Cases of force majeure or other unforeseeable, unavoidable and serious events out of the control of the Customer or the Contractor to which the Customer or the Contractor cannot be deemed to be responsible for, including but not limited to, strikes, governmental/regulatory measures, IT outage, outage of the energy supply, acts of God, natural disasters, war, civil disturbances and acts of terrorism, pandemics (hereafter referred to as ‘Force Majeure’) relieve the concerned party from the affected obligations respectively for the duration of the disruption and to the extent of its impact.
11.2 The contract party affected by the disruption due to Force Majeure shall notify the other party thereof in writing without any delay.
11.3 The Contractor can withdraw from the contract concerned in case the end of such a disruption due to Force Majeure continues for more than TWO (2) months or its end is not foreseeable.
12.1 “Confidential information” within the meaning of this provision shall comprise all information and documents of the other party in each case which are either designated as confidential or are to be deemed to be confidential in light of the given circumstances. This shall comprise – but not be limited to – information pertaining to operational procedures, business or trade secrets and business relationships in particular.
12.2 The Customer and the Contractor shall be obligated to maintain the confidentiality of all confidential information acquired by them in connection with the contractual relationship between the parties and refrain – where this is not necessary for the fulfilment of the agreement – from disseminating such information to any third parties and from using it for purposes other than those stipulated by the agreement. This shall likewise apply to any information provided in the run-up to the conclusion of the agreement. This obligation applies during the length of and after the completion or termination of the agreement.
12.3 Confidential Information shall only be used for the purpose of the agreement and only be accessible to employees which require access to and knowledge of this Confidential Information to complete their obligations under the agreement and who have been obligated to keep the same confidentiality and secrecy as required in this article. Confidential Information shall only be reproduced in relation to the requirements of providing the services or supplying the goods and in accordance with copyright regulations.
12.4 The Contractor does not accept any liability for the infringement of confidentiality and secrecy of Customer Confidential Information by the sub-contractors of the Contractor
12.5 The confidentiality obligation pursuant to this Section shall not apply to information which:
12.6 Was already known to the other party upon the conclusion of the agreement, b. Was already in the public domain at the time of its dissemination, without this being due to any breach of the confidentiality obligation by the other party, c. Was approved for dissemination pursuant to an express written declaration from the other party to that effect, d. Was legitimately acquired by the other party from other sources not imposing any restrictions as to confidentiality, provided that the dissemination and use of this confidential information does not constitute either a breach of contractual arrangements or an infringement of statutory provisions or an official decree, e. Was developed by the other party itself without any access to the confidential information of the party in question, f. Must be disclosed pursuant to either statutory provision of information, notification and/or disclosure obligations or official decree. The party under such obligation to disclose the information shall, to the extent permissible, inform the other party accordingly as soon as possible and assist the latter to the best of its ability in contesting the enforcement of such obligation.
12.7 Should one of the parties be made aware of confidential information by a third party, it shall be obligated to inform the other party accordingly in writing without delay.
13. Retention and Safeguarding Measures
13.1 The Contractor shall retain all documents that are necessary for the performance of its services for the duration of the term of the agreement and return them to the Customer upon the expiration of this agreement. The Customer shall be entitled to demand the return of all documents handed over in connection with the agreement at any time. Should the collaboration between the parties be prematurely terminated, irrespective of the grounds for such termination, the Contractor shall hand the documents over to the Customer within TEN (10) business days of a corresponding request from the latter. The Contractor shall, at the Customer’s request, destroy the aforementioned documents instead of handing them over to the Customer within THIRTY (30) days of a corresponding request from the latter; the cost of doing so shall be borne by the Customer. This shall not apply to documents containing a description of the subject matter of the agreement or the services to be performed by the Contractor (so-called “service specifying documents”), which the Contractor shall be permitted to retain for the duration of the application of both the contractually stipulated and the statutorily prescribed warranties, provided that the application thereof has not effectively been precluded.
13.2 All documents and objects provided to the Contractor by the Customer for the purposes of the fulfilment of this agreement shall always be and remain property of the Customer.
14. Data Protection
14.1 The parties and any third parties acting on their behalf, shall observe the currently applicable provisions of data protection legislation.
14.2 The Customer shall ensure that the Contractor is made aware of all relevant circumstances extending beyond the scope of the applicable statutory provisions and as are required on data protection and confidentiality grounds. The Customer shall be responsible for ensuring its compliance with legislation and regulations governing data protection and IT security.
15. Jurisdiction, Applicable Law
15.1 The applicable law shall be that of the Federal Republic of Germany with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
15.2 The place of jurisdiction for all disputes arising out of the contractual relationship between the parties shall be the courts sitting at the location of the Contractor’s registered office in Munich. The right of the Contractor to sue the Customer at his registered office remains unaffected.
16. Final Provisions and Severability Clause
16.1 Any provisions contained in the offer which diverge from those of these General Terms and Conditions shall in all cases be accorded priority over the latter. Any arrangements entered into prior to or upon the conclusion of the agreement in divergence from these General Terms and Conditions must be in writing. This shall also apply to any agreements governing the revocation of this written form requirement.
16.2 The export of the contractual objects and documents can – e.g. due to their type or purpose – subject to approval.
16.3 The contractor can assign claims from this contract to third parties at any time. In addition, the contractor can transfer rights and obligations from this contract to a third party if the client does not object in writing within FOUR (4) weeks of receiving a corresponding notification; the Contractor will point this out in the notification.
16.4 The Customer shall only be permitted to assign any claims it may have against the Contractor to third parties with the Contractor’s prior written consent.
16.5 The Customer shall be entitled to offset only uncontested or legally established claims against claims of the Contractor. The Customer shall also only have a right of retention in the case of uncontested or legally established claims.
16.6 Should any individual provisions of these General Terms and Conditions is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions will not be affected thereby.