1 GENERAL PROVISIONS FOR ALL SERVICES
The following provisions apply to all software business and IT services performed for the Customer by Empolis Information Management GmbH (Kaiserslautern). The basis for the services provided by Empolis Information Management shall be the applicable quotation, unless
Empolis Information Management has declared said quotation non-binding and providing that the customer has placed a corresponding order within the validity period of the quotation.
1.1 Cooperation on the part of the Customer
The Customer must notify Empolis Information Management without delay of any changes to their place of residence, registered office, or the legal structure or contingent liabilities of their business.
The Customer shall provide Empolis Information Management without delay with all the information and documentation Empolis Information Management requires in order to provide its services; this applies in particular to devices, data, programs and program components intended to interact with Empolis Information Management’s software. The Customer must provide Empolis Information Management with the necessary information on the intended application, their business and procedural objectives and priorities, and any other requirements that fall within the Customer’s sphere of activity. Where necessary, the Customer must procure consent from third parties.
Where the services are to be provided on the Customer’s premises, the Customer shall, on request from Empolis Information Management, provide Empolis Information Management free of charge with any personnel required for accident prevention reasons.
Where Empolis Information Management’s service consists of the delivery and/or installation of software, the Customer shall: a) Provide Empolis Information Management with unimpeded access to the data processing unit on which the software to be handed over is going to be used when the work is due to commence, without any waiting time. The Customer shall ensure that the technical equipment required in order to perform the services, such as the power supply, telecommunications connections and lines for data transmission (e.g. remote access for the purpose of providing the services) is in full working order, and make said equipment available to Empolis Information Management to the required extent free of charge. The Customer shall bear the telecommunications costs.
- b) Inspect the software immediately upon receipt to ensure that it is fully functional and notify Empolis Information Management without delay of any defects.
c) Implement suitable measures in case the software does not work as agreed in the contract, in particular fallback procedures, file backups, continuous results checks and, in case of faults, detailed description of how any such faults manifest. It must be possible to reconstruct the data without unreasonable effort using machine-readable data material.
d) Bear the sole responsibility for backing up the data of the installed software.
e) Keep a record of the copies the Customer has made of the software and/or the user documentation, and provide Empolis Information Management with this information upon request.
The Customer hereby provides assurance that they have the right to enlist Empolis Information Management and its subcontractors to save and process the personal data pertaining to third parties that the Customer has sent to Empolis Information Management for the purposes of achieving the deliverable, in accordance with the German Data Protection Act (Datenschutzgesetz).
The Customer shall cover any expense generated by a need for Empolis Information Management to repeat or delay work due to incorrect, incomplete or subsequently corrected information provided by the Customer.
1.2 CHANGES AND EXTENSIONS TO SERVICES (CHANGE REQUESTS)
Where work on concepts and software is required, the Customer can submit a request in writing for changes or extensions to the product/service (hereinafter referred to as a “Change Request”) at any time prior to handover. If Empolis Information Management can be reasonably expected to fulfill the Change Request based on the scope of its operational capabilities, Empolis Information Management shall evaluate the feasibility of the change in question. Any completion deadline agreed for the adaptation/creation services shall initially be extended by the length of the evaluation period. Where possible, Empolis Information Management shall inform the Customer as to what changes it considers necessary to the contents of the project as agreed thus far in order to fulfill the Change Request, what impact, if any, the requested changes will have on deadlines, and how much time Empolis Information Management will require in order to draw up a detailed quotation for the implementation of the Change Request including prices and deadlines.
Where Empolis Information Management issues such a quotation within an appropriate length of time, the Customer can decide whether or not they want to accept the quoted offer. The Customer must declare this decision in writing within ten calendar days following receipt of the quotation from Empolis Information Management. Should the Customer fail to issue a response within this period, the quoted offer shall be deemed to have been rejected.
Providing it provides notification to this effect in its response to the Change Request, Empolis Information Management can demand a fee for the evaluation of the Change Request and the drawing up of the corresponding documentation. Unless agreed otherwise by the Parties, this fee shall be based on the time taken to evaluate the Change request and draw up the corresponding documentation. The fee shall be calculated based on the Empolis Information Management price list that is valid at the time.
1.3 RIGHTS OF USE TO THE SOFTWARE
Upon payment in full of the agreed fee, Empolis Information Management shall grant the Customer a non-exclusive, perpetual right to use the software within their company and for their own purposes within the Federal Republic of Germany by completely or partially loading, displaying, running, copying, or saving the software. The right to use the software is granted only for the data processing unit(s) specified in the quotation, the users and number of users specified therein, and the number of copies of the software specified therein. The Customer has the right to make and store a backup or archive copy of the software within the scope of the software’s intended use.
Where the user documentation is handed over on machine-readable data carrier, the provisions of Section 1.3.1 shall apply accordingly.
Any user documentation provided in print shall be handed over to the Customer for the purpose of handling the software, and may copied for this purpose.
The Customer is entitled to connect the software to other computer programs once it has been handed over. Decompilation of the software into other code forms is only permitted within the scope of the applicable legal provisions. The activities specified in said legal provisions may only be transferred to third parties if Empolis Information Management is not prepared to establish the requested interoperability itself for a reasonable fee, having been given a reasonable period of time to consider this request.
The Customer may edit the software for the purpose of correcting errors, providing said actions are required in order for the Customer to use the software as intended for their own use and Empolis Information Management is not prepared to carry out said actions within a reasonable period of time and under reasonable conditions. The Customer’s own use of the software shall not, under any circumstances, extend to the distribution of the software. The Customer must provide evidence that the actions in question are necessary in order to correct errors in the software.
Any identifiers, marks, copyright marks or other marks indicating owners of rights on the data carriers and user documentation provided must not be removed, and must be transferred without alteration onto any copies of machine-readable data carriers made by the Customer.
The Customer may permanently transfer the rights of use to the software and the user documentation granted herein to a third party, thereby forfeiting their own rights of use, providing said third party has agreed in writing to the continued validity of the customer obligations pursuant to this Contract and that said obligations, particularly those pertaining to the right of use, shall also apply to the third party in question. The Customer must inform Empolis Information Management without delay of the transfer of rights, naming the third party to whom the rights have been transferred. In case of a transfer of rights, the Customer must hand over to the third party all their copies of the software, including any backup or archive copies, or alternatively destroy
any copies that are not handed over. The Customer’s right of use to the software shall expire upon completion of the transfer of rights.
The right to reproduce and distribute the software, the right to permit and sublicense to third parties, the editing and modification of the software including the use and reproduction of the respective results and their distribution shall be otherwise excluded.
If open source software is also required for the service for which the Customer has commissioned Empolis Information Management, the Customer shall procure said software and the necessary licenses in their own name and at their own cost, and make same available to Empolis Information Management.
The above provisions stipulated in Section 1.4 shall also apply to all further developments (upgrades, releases, new versions, etc.) that Empolis Information Management creates for the Customers within the scope of the contractual relationships between the two Parties (particularly software maintenance agreements).
1.4 COMPENSATION, TERMS OF PAYMENT
The Customer must pay the agreed compensation. Where no compensation has been agreed for a service provided by Empolis Information Management, Empolis Information Management’s valid prices and daily/hourly rates (daily rate = 8 hours of work per day) upon conclusion of the Contract as stipulated in the valid Empolis Information Management price list shall apply. Unless agreed otherwise, the compensation shall apply from Empolis Information Management’s registered office.
The agreed compensation does not include the applicable national value added tax, or any country-specific duties in the case of overseas deliveries. Travel costs shall also be invoiced in addition to the agreed compensation. Time spent traveling is counted toward working hours.
Where time-based compensation has been agreed, the Customer shall be obligated to pay in installments upon request by Empolis Information Management. In such cases and for the final invoice, which must take any such installment payments into account, the compensation must be paid immediately and without deductions following the issuing of the respective invoice unless the Parties have agreed to payment by specific deadlines.
Where flat-rate compensation for services has been agreed, this must be paid as follows: 40% upon conclusion of the Contract; 30% eight weeks after conclusion of the contract or by the agreed date, and 30% following acceptance.
For projects involving the adaptation or creation of software for which the agreed implementation period is longer than 12 months, Empolis Information Management reserves the right to increase the compensation with three months’ notice if no flat-rate price has been agreed. The increase must not exceed more than 5% of the agreed compensation within one year following the last increase demand.
All claims by Empolis Information Management shall become due with immediate effect in case of a failure without cause to observe the payment dates and deadlines, or if the Customer’s financial circumstances significantly deteriorate.
Should a payment made by the Customer fail to cover all claims held against the Customer by Empolis Information Management, said payment shall be used firstly to settle the liabilities that are unenforceable and not pending before the court and lastly to settle the enforceable liabilities, from oldest to most recent.
The Customer may only offset against Empolis Information Management’s claim for compensation using undisputed or legally established claims. The Customer can only exercise a right to withhold payment in case of undisputed and legally established claims.
The statute of limitations on claims for defects is one year following shipment (for standard software) or acceptance (for concepts or adaptation, creation and installation of software).
A defect shall be deemed to exist if the contractually agreed software, including the documentation, is not of the contractually agreed quality or is not suitable for the contractually agreed use. The definition of the contractually agreed quality shall be based on the quotation or concept issued by Empolis Information Management. The Customer must notify Empolis Information Management of any defects without delay, providing a description of how the defect manifests.
Empolis Information Management is entitled to a reasonable period time in which to provide subsequent performance. Empolis Information Management can choose at its own discretion to provide subsequent performance in the form of either rectification of the defect or renewed provision of the original performance. The provision by Empolis Information Management of instructions for a reasonable workaround for the software defect shall be deemed sufficient rectification of the defect. The Parties hereby agree that, due to the scope and the multifaceted nature of software programming, more than two attempts at subsequent performance are usually required in order to rectify a defect. If a defect has only a negligible negative impact on the value or serviceability of the concept, it shall not constitute grounds for withdrawal from the Contract; the same shall apply if the Customer is in default of acceptance or is predominantly responsible for the defect. In cases where the delivered, adapted or created software has been used with a failure to observe the conditions of the usage environment, the obligation to provide subsequent performance shall not apply unless the Customer provides evidence that the defect was not caused by said failure.
Should a notification of defects be found to be unjustified, the Customer must bear the costs incurred by Empolis Information Management as a result of said notification if the Customer is found to have culpably misjudged the lack of a defect.
1.6 TERM OF THE CONTRACT, TERMINATION
Either Party can only be released from agreements regarding the adaptation, creation, installation and handover of software and concepts and consultation and training services in accordance with the legal provisions.
A Contract on software maintenance shall begin on the agreed date and be concluded for a minimum of 12 months. The Contract shall be extended by one year at a time unless it is terminated by one of the Parties before its expiry date with three months’ notice. The right to termination can also be exercised with regard to a part of the Contract that governs individual software components, providing said termination is reasonable for the other Party and the components in question are functionally separable. The right to termination without notice for good cause remains unaffected by the above termination provision. In particular, the following circumstances shall constitute good cause for termination on the part of Empolis Information Management:
a) If Empolis Information Management becomes unable to perform as a result of a failure on the part of a third party to deliver new program versions, is not itself culpable for said failure, and has made every reasonable effort to procure the new program versions
b) If the Customer has tampered with the software governed by the maintenance Contract, or allowed third parties to do so
c) If modifications and extensions to the software to be maintained by Empolis Information Management have been commissioned by the Customer and said modifications and extensions lead to changes in the service provided by Empolis Information Management, in particular to an increased workload
d) If the Customer rejects the handover of a new release
e) If the Customer defaults on payment by more than two months or fails to pay two (not necessarily consecutive) invoices before the agreed deadline
Notice of termination must be provided in writing.
Irrespective of the legal grounds for liability, either Party shall only be liable for themselves and their vicarious agents if said Party is culpably responsible for the violation of a fundamental contractual obligation and thus endangers the purpose of the Contract, or if the damage is the result of intent or gross negligence. A fundamental contractual obligation is an obligation the fulfillment of which is essential to the correct execution of the Contract and the observance of which is something the other Party can usually expect to be upheld. If the culpable violation of a fundamental contractual obligation is not due to intent or gross negligence, the liability shall be limited in terms of its reason and amount to the typical type of damage for a contract of this nature that could have been reasonably foreseen at the time the Contract was signed.
Empolis Information Management shall only be held liable for the recovery of data if the Customer has implemented suitable precautionary measures to ensure that the data can be reconstructed without unreasonable effort using machine-readable data material, in particular by creating daily backups of all the data.
Where a Party’s liability is excluded or limited in accordance with these General Terms and Conditions, said exclusion or limitation shall also apply to the personal liability of the bodies, staff, employees, representatives and subcontractors of the Party in question.
The limitation of liability contained in these General Terms and Conditions does not apply to claims made in accordance with the German Product Liability Act (Produkthaftungsgesetz).
The Parties shall accept no liability for the violation of obligations arising from this Contract or the orders agreed under this Contract where said violations are the result of force majeure, particularly war, civil war, natural disaster, acts of terror, strikes (not lockouts) or embargoes. Strikes shall not be deemed instances of force majeure pursuant to this Section of this Contract in cases where said strikes have occurred in response to illegal action on the part of the Party in question. Should one of the Parties’ ability to fulfill its contractual obligations be impeded due to force majeure, this shall not be deemed a breach of Contract, and the deadlines specified either in or on the basis of this Contract shall be extended accordingly to account for the duration of the impedance. Without delay following the occurrence of the force majeure event, the affected Party shall inform the other Party in writing of the situation, the time and date the force majeure event occurred, and the foreseeable impact said event will have on the Party in question’s ability to fulfill its contractual obligations.
Unless agreed otherwise, each Party shall treat the information passed onto it by the other Party (including documents, samples, etc.) as confidential trade secrets, shall only use said information for the purpose of fulfillment of Contract, and shall not make said information available to third parties. This obligation shall not apply under the following circumstances:
a) If the information in question was already publicly available prior to its receipt by the receiving Party
b) If the information in question becomes publicly available following its receipt by the receiving Party in question and through no fault on the part of the receiving Party
c) If the information in question has been made available to the receiving Party at any time by a third party who, to the best of the receiving Party’s knowledge, was authorized to do so
d) If the information in question was known to or independently developed by the receiving Party before it was passed on by the other Party
e) If the information in question is made available to a third party by Empolis Information Management for the purpose of performing its service, and Empolis Information Management
has ensured the confidentiality of said third party in accordance with this Confidentiality Agreement
f) If the information in question is passed on to a consultant to one of the Parties who is obligated to maintain confidentiality as an integral requirement of their profession (accountant, auditor, lawyer), for the purpose of providing said Party with consultation services
g) If the receiving Party is required to disclose the information in question due to a regulation of law or a definitive and legally enforceable decision on the part of a government authority or court If the receiving Party becomes aware of the existence of any such circumstances, it must notify the providing Party accordingly without delay.
The Parties shall treat each other’s trade secrets with the same degree of care as they would their own. The Parties hereby assure one another that any of their employees who are able to gain knowledge of such information shall be bound to confidentiality accordingly.
All rights to such information shall be retained by the providing Party. Irrespective of the term of the Contract, each of the Parties shall continue to use said information exclusively in accordance with this Agreement for a further three years following receipt of the information.
2 SPECIAL PROVISIONS FOR SPECIFIC SERVICES
The following provisions apply to the respective services performed by Empolis Information Management GmbH within the agreed scope:
2.1 Drawing up concepts
Empolis Information Management shall draw up a concept in the form of written documentation based on the quotation. The aim of the concept is to create for the customer a data processing basis for a custom piece of software that is to be created and/or a piece of software that is to be adapted, particularly in terms of its parameters.
In the concept, Empolis Information Management shall analyze, evaluate and document the Customer’s requirements. The concept shall describe the functions and tasks the software needs to perform in order to achieve the Customer’s objectives, as well as the workflows, the interfaces, the way the functions interact, and the information that needs to be generated for them. The concept shall be drawn up by Empolis Information Management in close consultation with the Customer.
Unless expressly stated otherwise in writing, the contents of the concept shall not constitute a guarantee of quality. Deadlines and dates of performance shall be non-binding unless Empolis Information Management provides express confirmation to the contrary.
If, for the most part, the product of the work matches the agreements, the Customer must declare their acceptance of the concept in writing without delay, and within four weeks of receipt of the concept at the latest. If the concept deviates significantly from the contractually agreed requirements, Empolis Information Management must remedy said deviations within a reasonable period of time. Once it has done this, Empolis Information Management must once more provide the Customer with the work results and await acceptance. The Customer may also declare their acceptance subject to their rights with regard to potential defects.
If the Customer fails to declare their acceptance without providing their reasons for doing so, Empolis Information Management may set a reasonable deadline for the declaration of acceptance. The work results shall be deemed accepted when the deadline passes unless the Customer provides their reasons for refusing to accept the concept in writing beforehand.
Empolis Information Management shall grant the Customer the non-exclusive and non-transferrable right to use the concept designed for the Customer’s business as a basis for creating or adapting its software. This shall not affect Empolis Information Management’s right to create concepts with similar objectives for third parties.
2.2 Consulting and training services
Empolis Information Management shall advise and/or train the Customer as specified in the quotation.
If these services are not rendered in accordance with the Contract or are not rendered at all, Empolis Information Management shall be required to render said services as specified in the contract within a reasonable period if the Customer submits a written complaint on the matter.
2.3 Handover of standard software
Empolis Information Management shall hand standard software (hereinafter referred to as “the Software”) in the object program, together with the user documentation. The scope of services and function for the Software shall be determined based on the Empolis Information Management product description that is valid upon conclusion of the Contract.
The Software can be run on the hardware and in the software environment specified in either Empolis Information Management’s product description or the Contract. The usage environment conditions shall be specified in the product description or the quotation. Any arrangements that go beyond this, e.g. interaction with other programs or network options, are dependent on the specific situation of the Customer and must be agreed upon separately as necessary.
The technical data and descriptions in the product description shall not constitute a guarantee of quality unless Empolis Information Management has expressly stated that the description is a guarantee of quality.
The Customer shall receive one copy of the Software on the machine-readable data carrier listed in the Contract, and one copy of the user documentation. The user documentation shall be handed over to the Customer either in print form or on a machine-readable data carrier; this may be the same data carrier used to hand over the Customer’s copy of the Software. A machine-readable data carrier shall be made available to and delivered to the Customer on request and at their own cost.
Where Empolis Information Management is required to provide additional services, such as the installation of the Software on the Customer’s hardware, briefing and training, said additional services must be agreed upon and compensated for separately. Maintenance of the software, Customer-specific adaptations to the software, and maintenance of said adaptations shall only be included as part of Empolis Information Management’s services where they are specified by Empolis Information Management in a written quotation and ordered by the Customer.
2.4 Maintenance of standard software
Shall conduct maintenance services on the standard Software specified in the quotation, including the corresponding user documentation where applicable. The maintenance services conducted on the Software are designed to ensure the continued functionality of the Software; however, they do not in any way constitute a guarantee that the Software will always work without fault or interruption. Empolis Information Management offers a number of different service levels for the provision of maintenance services on its standard Software. The type, scope and contents of the maintenance services provided shall be determined based on the agreed service level. In cases where Empolis Information Management owes maintenance services in accordance with the relevant quotation but no service level has been specified, Empolis Information Management shall provide its maintenance services in accordance with the version of its “Silver” service level agreement that is applicable at the time. If it is not enclosed with the quotation, the Customer shall be provided with the applicable version of the service level agreement on request.
The Customer can change from the currently agreed service level to a different service level with a higher level of services, providing they indicate their desire to do so to Empolis Information Management at least sixty (60) days before their current service level agreement expires. The Customer’s new service level will then apply from the start of the next year of the agreement. The compensation shall be determined based on the Empolis Information Management price list that is valid at the time for the service level in question.
The handover of new program versions (hereinafter referred to as “Versions”) with extensions to the performance and functionality of the Software achieved through the reprogramming of significant parts thereof – including the ability to use new technologies – can be made the subject of a separate Software handover agreement in return for compensation.
2.5 Creation, adaptation and installation of Software
The type and scope of the services to be provided by Empolis Information Management in relation to the creation, adaptation and installation of Software shall be determined based on either Empolis Information Management’s quotation or the concept Empolis Information Management draws up for the Customer based on these General Terms and Conditions.
If its services are functional, Empolis Information Management shall make the product of its work available to the Customer in the agreed form and inform the customer in writing of its functionality. The acceptance of services rendered by Empolis Information Management shall be subject to a successful functional test; this must commence within two weeks following receipt of the notification and be completed within two weeks. If, for the most part, the product of the work is as specified in the Contract, the Customer must declare their acceptance in writing. If the Customer fails to declare their acceptance without providing their reasons for doing so, Empolis Information Management may set a reasonable deadline for the declaration of acceptance. The work results shall be deemed accepted when the deadline passes unless the Customer provides their reasons for refusing to accept the product of the work in writing beforehand. Where the Customer provides sufficient grounds for refusing to accept the product of the work, Empolis Information Management shall be obligated to improve the product of the work in order to obtain acceptance. Should Empolis Information Management fail to provide an acceptable work product following two rounds of improvements, the Customer shall be entitled to terminate the Contract in accordance with Section 1.6.2.
The Parties may agree acceptance criteria in writing. In such cases, these criteria must then be verified during the functional test; failure to observe the acceptance criteria shall constitute a failed functional test in accordance with the Contract.
If the product of the work deviates significantly from the contractually agreed requirements, Empolis Information Management must remedy said deviations within a reasonable period of time. A significant deviation from the contractually agreed requirements shall be deemed to exist if a fault in parts of the program’s processes leads to non-negligible malfunctions that render parts of the Software unusable, or if a prolonged disruption to Software operation occurs, resulting in the system failing to function correctly or faults in system parts that lead to the disruption of all workflows at the Customer’s site. Once it has done this, Empolis Information Management must once more provide the Customer with the work results and await acceptance.
The Customer may also declare their acceptance subject to their rights with regard to potential defects. In such cases, the provision of the above paragraph shall likewise apply for significant deviations in light of which the Customer has chosen to reserve their rights.
If a number of different deadlines have been set for establishing the functionality of different services, the functional test shall be restricted in each case to the sub-service at hand. The acceptance of the final sub-service shall include a functional test that incorporates all the sub-services in order to ensure that they work together as agreed in the Contract.
Each of the Parties shall appoint a liaison whose responsibility it shall be to schedule meetings and transmit and receive information pertaining to the project. Without delay following the conclusion of the Contract, the Customer shall provide a written list of the persons whose technical and legal declarations shall be deemed binding for the customer. Each of the Parties shall appoint a project manager; this person shall be responsible for clarifying all technical matters and questions relating to the provision of the contractual services. Each Party must inform the other Party of any changes to their project manager.
3 Final provisions
The quotation issued by Empolis Information Management that forms the basis of the Contract, including any amendments, constitutes an integral part of this Contract.
The place of performance for Empolis Information Management’s services shall be Empolis Information Management’s registered office. The place of jurisdiction for all disputes arising from this Contract shall be the court of competent jurisdiction for Empolis Information Management’s registered office.
Supplementary agreements, changes and addenda to this Contract must be made in writing. This requirement of written form can only be repealed by written agreement.
The contractual relationships between the Parties shall be solely governed by the laws of the Federal Republic of Germany. The application of the UNCITRAL Vienna Convention on International Trade Law of 11 April 1980 and of German conflict-of-law rules is hereby excluded.
Should this Contract contain loopholes, or should a provision of this Contract be or become invalid, the remainder of the Contract shall remain valid. The missing or invalid provision shall be replaced by a provision agreed between the Parties that reflects as closely as possible the Parties’ original economic intent behind the missing or invalid provision. However, the Contract as a whole shall be deemed invalid if adherence to it would result in undue hardship for one of the Parties even if the Contract were to be amended as intended.
Empolis Information Management is entitled to transfer its rights and obligations under this Contract, either in whole or in part, to its parent company or its affiliated companies (as defined in Section 15 of the German Stock Corporation Act [AktG]), or to cede rights from this Contract to the same. The Customer may only transfer its rights and obligations under this Contract, either in whole or in part, with the written consent of Empolis Information Management.
The Customer is hereby informed that Empolis Information Management will, to the extent necessary in order to execute this Contract, store and process personal data as defined in the German Data Protection Act (Datenschutzgesetz) of which it becomes aware during the course of the contractual and business relationship.
The Customer hereby consents to allow Empolis Information Management to name the Customer as a reference for the solution created in the course of this project. This includes permission to use the Customer’s name and the relevant application for marketing purposes. Furthermore, Internet and intranet solutions belonging to the Customer that have been created or supported by Empolis Information Management must include a notice stating that they have been developed using Empolis products and services.