General terms and conditions of the ABS Team GmbH for deliveries and services

 

1 Scope
2 Conclusion of contract
3 Subject of the contract
4 Service provision
5 Personnel deployment at the customer
6 Time of performance and delay
7 Force majeure
8 Acceptance and delivery; default in acceptance
9 Rights of use to performance results
10 Cooperation obligations of the customer
11 Remuneration for goods and services
12 Prices and terms of payment
13 Retention of title
14 Warranty basics
15 Claims of the customer for defects
16 Manufacturer warranties
17 Liability
18 Limitation
19 Privacy
20 Secrecy
21 Export regulations
22 Jurisdiction and choice of law
23 Final provision

 

 

 

1 Scope

1.1
These General Terms and Conditions (these “GTC”) apply to all contractual relationships between ABS Team GmbH and its clients (the “Client”).

1.2
These GTC shall apply in particular to contracts for the provision of IT services. Unless otherwise agreed, these GTC in the version valid at the time of the establishment of the contractual relation-ship shall also apply as a framework agreement for similar future contractual relationships without the need to refer to these GTC again in each individual case.

1.3
These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that ABS Team GmbH has expressly agreed to their validity. This consent requirement applies in any case, for example even if ABS Team GmbH performs the services without reservation in the knowledge of the customer’s general terms and conditions.

1.4    
Individual agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a written agree-ment or written confirmation from ABS Team GmbH shall be authoritative.

1.5
Legally relevant declarations and notifications by the customer with regard to the contractual relationship (for example, setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Legal formal require-ments and further proof, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.

1.6
References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

 

 

2 Conclusion of contract

2.1
Offers from ABS Team GmbH are subject to change and non-binding. This also applies if ABS Team GmbH has provided the customer with concepts, technical documentation, other performance descriptions or documents – also in electronic form – to which ABS Team GmbH reserves ownership and copyrights.

2.2
The commissioning of the deliveries and services by the customer (“the order”) shall be deemed a binding contractual offer. Unless otherwise stated in the order, ABS Team GmbH is entitled 
to accept this contractual offer within one month after its receipt by ABS Team GmbH.

2.3
Acceptance can be declared either in writing (for example by order confirmation) or by performance of the service to the customer.

 

 

3 Subject of the contract

3.1    
The subject matter of the contract is defined in these GTC and, if applicable, in the other documents relating to the contractual relationship (e. g. offer, service description, order confirmation).

3.2    
ABS Team GmbH provides IT services for the customer, in particular in the form of consulting and support services. ABS Team GmbH does not assume any guarantee for the occurrence of a certain success – subject to deviating agreements.

3.3    
ABS Team GmbH shall provide consulting and support services as services under a service contract (§ 611 BGB). Insofar as the parties wish to agree on services under a contract for work and services, this shall be expressly stipulated; in this case the production of a work on the basis of the agreed specifications shall be owed.

3.4    
If ABS Team GmbH prepares a report or other documents, these do not constitute an expert opinion, but only reflect the essential content with regard to the course, results and recommendations of the consultation.

3.5    
Entrepreneurial risks are borne solely by the customer, in particular in relation to risks for entrepreneurial decisions made or omitted by the customer (for example, misjudgement of the market situation or failure to recognize the appropriateness of business measures).

 

 

4 Service Provision

4.1    
ABS Team GmbH is basically free to choose the place of performance and the employees used for the performance of services. The services can in particular be provided “remotely”, i. e. also using remote means of communication.

4.2    
ABS Team GmbH is entitled to provide the services by its own employees or to commission third parties to provide the services. The customer is entitled to demand the replacement of individual employees against compensation for any additional costs incurred as a result.

4.3    
ABS Team GmbH and third parties commissioned by ABS Team GmbH provide their services in countries of the European Union, unless otherwise regulated. At the discretion of ABS Team GmbH, the provision of services may also be relocated to countries outside the European Union, provided that the customer is not threatened with any significant disadvantages as a result. 
Prior to a corresponding relocation, which has not already been announced to the customer upon conclusion of the contract, ABS Team GmbH shall inform the customer and give the customer the opportunity to object to the relocation with reference to the impending disadvantages.

4.4    
The place of performance shall be the performance delivery points agreed between the parties. If no performance delivery point has been agreed, the place of performance in case of doubt shall be the registered office of ABS Team GmbH.

4.5    
The parties shall refrain from actively enticing away employees of the respective other party or persons otherwise involved in the provision of services.

 

 

5 Personnel deployment at the customer

5.1    
Under no circumstances will personnel from ABS Team GmbH be incorporated into the customer’s operations. ABS Team GmbH remains fully responsible for the personnel and retains the exclusive right to issue instructions.

5.2    
There is no cooperation based on division of labor between the customer’s personnel and the personnel of ABS Team GmbH.

 

 

6 Time of performance and delay

6.1    
The time of performance shall be agreed individually or specified by ABS Team GmbH upon acceptance of the order. If this is not the case, the performance of services shall begin approximately within one month from the conclusion of the contract and shall be completed within a reasonable time.

6.2    
If ABS Team GmbH cannot meet binding performance times for reasons for which ABS Team GmbH is not responsible (the “non-availability of performance”), ABS Team GmbH will inform the customer of this immediately and at the same time inform the customer of the expected new performance time. If the service has not been rendered within the new performance period, ABS Team GmbH shall be entitled to withdraw from the contract in whole or in part; any consideration already rendered by the customer shall be reimbursed by ABS Team GmbH without delay. A case of non-availability of the performance in this sense is in particular the non-timely performance by a subcontractor, if ABS Team GmbH has concluded a congruent hedging transaction, if neither ABS Team GmbH nor the subcontractor is at fault or if ABS Team GmbH was not obligated to procure in the individual case.

6.3    
The occurrence of default by ABS Team GmbH is determined by the statutory provisions. In any case, however, a reminder by the customer is required.

6.4    
The rights of the customer under the liability provisions of these GTC and the statutory rights of ABS Team GmbH, in particular in the event of an exclusion of the obligation to perform (for example, due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

 

 

7 Force majeure

7.1    
ABS Team GmbH shall not be liable for events of force majeure that significantly impede ABS Team GmbH’s deliveries and services, temporarily hinder the proper execution of the contractual relationship or make it impossible. In this context, force majeure shall be deemed to be all circumstances independent of the will and influence of the parties (for example, natural disasters, blockades, strikes, lockouts) that occur after the conclusion of the contract.

7.2    
Insofar as one of the parties is prevented from fulfilling the contractually agreed deliveries and services due to force majeure, this shall not be deemed a breach of duty under the contractual relationship. Each party shall within the scope of its possibilities, ensure that the extent of the effects of force majeure is kept to a minimum.

 

 

8 Acceptance and delivery; default in acceptance

8.1    
Insofar as services are to be provided by ABS Team GmbH under a contract for work and services, ABS Team GmbH shall give notice when the deliveries and services are ready for acceptance. The customer is obliged to inspect the deliveries and services immediately after notification of readiness for acceptance and to declare acceptance within the agreed time or – if no time has been agreed – within two weeks. Acceptance can only be refused due to the existence of defects that prevent acceptance.

8.2    
Acceptance or completion of the services shall be deemed to be the same if the customer is in default of acceptance. The use of deliveries and services by the customer in live operation shall also be deemed to be acceptance of these deliveries and services.

8.3    
If the customer is in default of acceptance, fails to cooperate or delays the services of ABS Team GmbH for other reasons for which the customer is responsible, ABS Team GmbH is entitled to demand compensation for the resulting damage including additional expenses.

 

 

9 Rights of use to performance results

9.1    
ABS Team GmbH shall be exclusively entitled to all rights to the work results, including consulting results, in the relationship with the customer, also insofar as the work results have been created by specifications or cooperation of the customer or its employees. This applies in particular to copyright, rights to inventions as well as technical property rights.

9.2    
ABS Team GmbH grants the customer a simple right of use for its own purposes  to work results that have arisen within the framework of the contractual relationship, unless otherwise agreed in writing. The customer has the same rights to changes or additions to standard software that ABS Team GmbH has produced and/or delivered as to this standard software.

 

 

10 Cooperation obligations of the customer

10.1    
The parties have the common under-standing that a successful cooperation within the framework of the contractual relationship depends decisively on the cooperation of the customer and its fulfillment of cooperation services is absolutely necessary for the success of the deliveries and services of ABS Team GmbH. The customer therefore under-takes to comprehensively support ABS Team GmbH in the provision of the deliveries and services, in particular by providing the cooperation services listed below.

10.2    
The customer promotes the successful implementation of the contractual relationship within his area of responsibility. Insofar as circumstances are foresee-able for the customer which may have a negative influence on the contractual relationship or the deliveries and services of ABS Team GmbH, ABS Team GmbH shall be informed of this in writing by the customer without delay.

10.3    
The customer shall provide ABS Team GmbH with the information required for the performance of the service and shall in particular grant ABS Team GmbH access to all relevant data, files, documents and other materials (for example interface descriptions).

10.4    
The customer shall grant ABS Team GmbH access to the necessary premises and access to the necessary systems to the extent required for the provision of the service. The customer shall further provide the necessary infrastructure (for example, equipped workstations with Internet access) for the provision of services on site.

10.5    
The customer shall back up its data daily in a suitable form so that it can be restored with a reasonable amount of effort, unless ABS Team GmbH has contractually agreed to back up the data.

10.6    
If ABS Team GmbH makes changes on behalf of the customer to software whose transfer is not the subject of the contractual relationship, in particular to licensed third-party software, the customer is fully responsible for ensuring that it has the necessary rights to make changes to such software.

10.7    
The customer shall indemnify ABS Team GmbH against all claims of third parties which are based on a non-contractual use of deliveries and services of ABS Team GmbH and the related services by the customer or which are made with the customer’s approval. If the customer recognizes or must recognize that a third party claim is imminent, there is an obligation to inform ABS Team GmbH immediately.

10.8    
The above list of cooperation services is not exhaustive; further cooperation services may result in particular from the agreements of the parties (for example, within the framework of protocols).

10.9    
Insofar and as long as the customer does not fulfill his cooperation services, does not fulfill them properly or does not fulfill them in time and the performance of services by ABS Team GmbH is impaired thereby, ABS Team GmbH shall be released from the obligation of deliveries and services, in particular also with regard to agreed deadlines, dates and milestones, which shall be extended or postponed by a reasonable period of time if the cooperation services are made up for.

 

 

11 Remuneration for goods and services

11.1    
The services rendered by ABS Team GmbH shall be invoiced monthly in arrears on the basis of the number of person days or working hours performed. The monthly billing according to time spent shall also apply to services under a contract for work and services; in this respect, the claim to remuneration shall be independent of the acceptance of the services. The time spent shall be invoiced in 15-minute intervals (0.25 hours). For each 15 minutes or part thereof, one quarter of the hourly rate shall be charged.

11.2    
License fees for software are due upon delivery. Fees for the maintenance of software are invoiced annually at the beginning of the maintenance year.

 

 

12 Prices and terms of payment

12.1  
Unless otherwise agreed in individual cases, the current prices of ABS Team GmbH at the time of the conclusion of the contract shall apply. All prices are subject to statutory value added tax, if applicable.

12.2    
The remuneration is due and payable within 14 days from the date of the invoice and the provision of the service. However, ABS Team GmbH is entitled at any time, even within the framework of an ongoing business relationship, to provide a service in full or in part only against advance payment. A corresponding reservation is to be declared with the order confirmation at the latest.

12.3    
Upon expiry of the aforementioned payment deadline, the customer shall be in default. During the period of default, the claim for payment shall bear interest at the applicable statutory default interest rate. ABS Team GmbH reserves the right to assert further damage caused by default. The claim of ABS Team GmbH to the commercial due date interest rate (§ 353 HGB) against merchants remains unaffected.

12.4    
The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter rights shall remain unaffected.

12.5    
If it becomes apparent after the conclusion of the contract (for example by filing for insolvency proceedings) that ABS Team GmbH’s claim for payment of the remuneration is endangered by the customer’s lack of ability to pay, ABS Team GmbH is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB).

 

 

13 Retention of title

13.1    
ABS Team GmbH retains ownership of the delivered items until the corresponding claims for remuneration have been fulfilled.

13.2    
The right of use for copyrightable deliveries and services is initially only revocable until full payment of the agreed remuneration. The right of revocation by ABS Team GmbH shall expire upon full payment of the remuneration under the contractual relationship.

 

 

14 Warranty basics

14.1    
The basis for the liability for defects of ABS Team GmbH is primarily the agreement made on the quality of the services. All service descriptions that are the subject of the contractual relationship or that have been publicly announced by ABS Team GmbH are considered to be an agreement on the quality of the services.

14.2    
Insofar as the condition has not been agreed, it is to be judged according to the legal regulation whether a defect exists or not. ABS Team GmbH accepts no liability for public statements made by manufacturers or other third parties (for example advertising statements).

 

 

15 Claims of the customer for defects

15.1    
The customer is obliged to inspect deliveries and services immediately after delivery by ABS Team GmbH, in particular with regard to completeness and freedom from defects. If defects become apparent during the inspection, these must be reported to ABS Team GmbH in writing without delay. Defects which cannot be detected during the prescribed inspection must be notified in writing immediately after discovery. A period of two weeks is deemed to be immediate in the sense of the above regulations. In the event of a breach of the aforementioned inspection and notification obligations, the deliveries and services shall be deemed approved in view of the defect in question.

15.2    
Insofar as deliveries and services are subject to acceptance or partial accept-ance, the inspection shall be carried out by the customer within the framework of the acceptance test. Claims with regard to defects that were identifiable during the acceptance test shall only exist if the customer asserts or reserves them within the framework of the acceptance test. With regard to defects that cannot be detected during the acceptance test, the provisions of the preceding paragraph shall apply.

15.3    
If the customer complains about a defect in the deliveries and services of ABS Team GmbH in compliance with the above regulations and within the warranty period, the corresponding defect will be remedied by ABS Team GmbH. This shall be done at the discretion of ABS Team GmbH by eliminating the defect (rectification) or by supplying a replacement (substitute delivery), unless ABS Team GmbH has expressly agreed otherwise in the product-specific terms and conditi-ons. If the delivery item is software, the instruction to circumvent the software defect is a sufficient remedy, provided that this is reasonable for the customer. Replaced delivery items or parts shall become the property of ABS Team GmbH; with regard to replaced software components, the right to use the same shall expire. Within a reasonable period of time, ABS Team GmbH is entitled to make several attempts to remedy the defect.

15.4    
If the defect cannot be remedied within a reasonable period of time, the steering committee shall decide on the further course of action. The steering committee shall decide on the further procedure including the necessary measures. If the steering committee does not reach a mutually agreeable result, the customer shall set ABS Team GmbH a further, reasonable period of grace for the rectifi-cation of the defect, which must be at least 12 working days. In this written request to remedy the defect, the customer shall state within the grace period which of the following rights will be asserted if the grace period expires unsuccessfully. If no steering committee has been formed, the management of the parties shall take its place.

15.5    
If the rectification of defects is not successful even within the grace period and is therefore to be regarded as having definitively failed, the customer shall be entitled to the following remedies under the statutory conditions. The customer may reduce the remuneration appropriately, but only by more than 50 percent in the case of unacceptable defects. Alternatively, the customer may remedy the defect itself or have it remedied by a third party and demand reimbursement from ABS Team GmbH of the costs necessarily incurred for this purpose, up to a maximum of the order value attributable to the defective part. Taking into account the nature of the agreement, the parties have expressly agreed on an exclusion of the right of withdrawal; the right of extraordinary termination shall take its place. 

15.6    
If the customer complains about a defect that cannot be detected, the customer shall bear the costs of the inspection.

15.7    
In the event of proven defects of title, ABS Team GmbH shall provide supple-mentary performance by giving the customer a legally flawless opportunity to use the delivered software or, at its option, replaced or modified software of equal value. The customer must accept a new software version if the contractual scope of functions is maintained and the acceptance does not lead to unreasonable adjustment and conversion problems for the customer.

 

 

16 Manufacturer warranties

16.1    
If ABS Team GmbH is not the manufac¬turer of a delivery item and if the manufacturer offers the customer a warranty or liability that goes beyond the regulations on warranty and liability according to these GTC, ABS Team GmbH will inform the customer about this and hand over the warranty documents at the customer’s request.

16.2    
ABS Team GmbH is not responsible for the fulfillment of the manufacturer’s warranty. The customer has to assert these claims, under exclusion of ABS Team GmbH, directly against the manufacturer.

16.3    
In this respect, ABS Team GmbH shall, if necessary, assign corresponding claims against the manufacturer to the customer at the customer’s request, provided that the assignment is possible.

 

 

17 Liability

17.1    
ABS Team GmbH shall be liable without limitation for intent and gross negligence; otherwise, liability shall be limited or excluded in accordance with the following provisions. 

17.2    
The liability is limited to contract-typical, reasonably foreseeable damages and expenses. The parties have the common understanding that the contract-typical damage shall in no case exceed the order volume (excluding software licenses), but not exceed EUR 100,000.

17.3    
ABS Team GmbH shall only be liable for slight negligence if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). In this case, the above limitation of liability shall apply; otherwise, liability for slight negligence shall be excluded altogether. 

17.4    
Liability for indirect damage and consequential damage, in particular for damage in the event of business interruptions and for loss of profit, is excluded as a whole, provided that there is no case of intent.

17.5    
Liability in the event of data loss is limited to the recovery effort that would have been incurred if the customer had backed up the data in accordance with the risk. ABS Team GmbH shall only be liable for the recovery of lost data at all if the customer has ensured that this data can be reconstructed from machine-readable data material and with reasonable effort

17.6    
Insofar as rental services are provided, the strict liability of ABS Team GmbH for defects that were already present at the beginning of the contractual relationship is excluded.

17.7    
The limitations of liability shall not apply in the event of injury to life, limb or health or in the event of claims under the Product Liability Act. Furthermore, the liability for guarantees assumed by ABS Team GmbH and insofar as ABS Team GmbH has fraudulently concealed a defect shall remain unaffected.

 

 

18 Limitation

18.1    
The warranty period for material defects and defects of title shall be one year. The period shall commence upon acceptance or partial acceptance of the respective Supplies and Services. If the Supplies and Services are not subject to acceptance, delivery to the customer shall take the place of acceptance. If necessary, further support can be achieved by means of agreements to be concluded separately, such as maintenance contracts.

18.2    
Claims for damages and claims for reimbursement of futile expenses shall become statute-barred within one year beginning with the last partial accept¬ance. This limitation period shall not apply to liability in the event of intent or gross negligence or to cases exempted from limitation under the liability provisions; in this respect, the statutory limitation periods shall apply.

 

 

19 Privacy

19.1    
Both parties undertake to comply with the provisions of data protection law applicable to them.

19.2    
All employees of ABS Team GmbH are bound to data secrecy and compliance with data protection regulations in accordance with the statutory provisions.

19.3    
The provision of the contractually agreed data processing shall take place exclusively in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area. Any transfer to a third country requires the prior consent of the customer and may only take place in accordance with the legal provisions on the transfer of personal data to third countries or international organizations pursuant to Art. 44–50 DSGVO.

 

 

20 Secrecy

20.1    
The documents and information provided within the framework of the contractual relationship, including its initiation, may be used exclusively for the purposes of the contractual relationship. In addition, the parties agree on confidentiality regarding the content of the contractual relationship and the information obtained during its execution in accordance with the following provisions.

20.2    
The parties undertake to keep secret all business and trade secrets or information designated as confidential which they receive or become aware of from the other party during the performance of the contract.

20.3    
The parties undertake not to disclose to third parties any documents and information to be kept secret. Affiliated companies of the parties (§§ 15 et seq. AktG) as well as subcontractors shall not be third parties if they have been obligated to maintain secrecy. Furthermore, the transfer of information and documents to consultants of the Parties who are obliged to maintain secrecy due to statutory provisions (Section 203 of the German Criminal Code (StGB)) shall be excluded.

20.4    
Information and documents which were generally known and accessible at the time of disclosure or which were already known to the receiving party at the time of disclosure or which were legitimately made accessible to it by third parties are not covered by the duty of confidentiality.

20.5    
The obligation to maintain secrecy shall apply during the contractual relationship and for a further two years after termination of the contractual relationship.

20.6    
ABS Team GmbH’s right to refer to the provision of services for the customer in the context of reference names and marketing materials shall remain unaffected by the duty of confidentiality.

 

 

21 Export regulations

21.1    
The customer shall observe the import and export regulations applicable to deliveries and services on its own responsibility, in particular those of the United States of America.

21.2    
In the case of cross-border deliveries and services, the customer shall bear any customs duties, fees and other charges that may be incurred.

21.3    
The customer will handle legal or official procedures in connection with cross-border deliveries and services on its own responsibility.

 

 

22 Jurisdiction and choice of law

22.1    
In case of disagreement on the validity and interpretation of this Agreement, the parties shall first conduct direct negotiations. In the event of failure of direct negotiations, either party shall be entitled to initiate legal proceedings.

22.2    
The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Goettingen. However, ABS Team GmbH is also entitled in all cases to bring an action at the place of performance of the obligation to perform or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

22.3    
The contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods (CISG).

 

 

23 Final provision

23.1    
Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of these GTC.

23.2    
With regard to subsequent amendments and supplements within the scope of the contractual relationship, the parties agree that a written agreement shall be required in this respect – including the cancellation of the written form. Unless otherwise regulated by law, e-mail does not correspond to the written form.