1 Applicability and Scope of the Terms and Conditions
(1) The following terms and conditions apply to all services that we provide, including consulting and recommendations. For future contracts, the most current and as amended terms and conditions apply, even if there is no specific reference to them in an individual case. The Customer is entitled to request a printed version of our most current General Terms and Conditions at any time.
(2) Any contradictory terms and conditions set forth by the Customer do not apply, even if we have not expressly objected to them, or if we provide services unconditionally with full knowledge of the Customer’s contradictory terms and conditions.
(3) Any deviation from these terms and conditions or from the written contract must be made in writing. With the exception of our Management, company officers who are authorized signatories, and persons having commercial power of attorney, our employees are not authorized to make agreements or to provide warranties that deviate from these General Terms and Conditions or from any contractual provisions.
2 Execution of the Contract / Scope of Services
(1) Our quotes are always subject to change without notice. Any order placed by the Customer becomes binding for us only after it has been confirmed in writing or has been carried out.
(2) The Customer is responsible for any documentation or information that he has submitted. Any errors that may arise from erroneous or ambiguous information from the Customer are the Customer’s responsibility as are any expenses arising therefrom. The same applies to errors that occur because the Customer transmitted information orally or by telephone.
(3) Subsequent or retroactive changes in the order shall be binding for us only if we have confirmed them in writing. In this event, we are entitled to change any contractual provisions accordingly that are impacted by such subsequent or retroactive changes.
(4) The scope of performance of the standard software is stipulated in the performance description attached to the software that is delivered to the Customer. Any deviating or additional requirements are binding only if they have been confirmed in writing.
(5) The determination/specification of the program for any individual software (scope of performance and use) is based on the system analysis carried out in accordance with the Customer’s information and is the basis for the programming. The Customer shall receive a written confirmation of the determination/specification of the program (system specification). This confirmation shall make the scope of delivery legally binding.
(6) Support information shall be provided with all due diligence and to the best of BESITEC’s knowledge and belief in accordance with the information and data available to BESITEC; BESITEC does not warrant the accuracy of such support information.
3 Delivery and Performance, Frustration of Performance
(1) Terms of delivery and periods of performance are binding only if they have been expressly confirmed in writing. Our employees are not permitted to make oral scheduling commitments or assurances.
(2) Terms of delivery are subject to correct and timely delivery by our suppliers.
(3) BESITEC shall perform their services within the scope of their technical and operational possibilities. BESITEC is not responsible for interruptions or delays in performance because of force majeure or because of other events that are outside of BESITEC’s sphere of influence and that delay their performance or make it impossible or unreasonable, either temporarily or permanently, unless BESITEC is at fault. Events, as stipulated above, are, for example, strikes and lockouts, technical breakdowns affecting operations of telecommunications installations, transmission paths, or networks, breakdowns in the supply of electric current, natural disasters, acts of violence by third parties, or government intervention. Other circumstances that fall under force majeure are illness or other unexpected absence of those employees primarily entrusted with the project, non-delivery by third parties, and other unexpected difficulties, for example, during import of data.
(4) If such events occur, the period of performance shall be extended by the duration of the impediment. Should the impediment last longer than two weeks, either Party is entitled to withdraw from the contract. The same applies if one of the Parties suffers significant detriment because of the delay. Should the event result in the permanent impossibility of performance or a permanent significant adverse effect on the performance of service, neither Party shall be obligated to fulfill the contract. If impossibility of performance is only temporary, the Customer is entitled to reduce the contractually agreed upon compensation in accordance with the duration of the interruption and/or the severity of the adverse effect.
(5) All deadlines and due dates shall be extended by that period of time that the Customer delays or impede a collaborative action that the Customer is obligated to assist in.
(6) We are entitled to make reasonable partial deliveries.
4 Prices, Payment, Default
(1) The prices do not include the most current statutory value-added tax. Our prices are net and shall be understood ex shipping point. The Customer shall bear all shipment and packaging costs. This also applies to any transport insurance requested by the Customer.
(2) In the event of unexpected, extraordinary price increases, for example, price increases by our suppliers or fluctuations in the rate of exchange, we are entitled to pass on the price increase to the Customer.
(3) Furthermore, BESITEC may adjust the agreed upon compensation to match increased costs no more than twice in the course of one calendar year by providing a one-page written declaration to this effect. The adjustment declaration shall become effective with a grace period of one calendar quarter. If this adjustment exceeds 10% of the previously valid compensation rates within one calendar year, the Customer can object to the adjustment within a period of 14 days after receipt of the adjustment declaration. In this event, BESITEC is entitled to terminate the contract for grave cause.
(4) Monthly compensation that remains the same on an ongoing basis shall be paid in advance of the respective month of performance, no later than the fifth business day of the month. All services that are based on actual time and expense shall be invoiced monthly in arrears.
(5) Payment shall be made without deducting any discounts.
(6) Payment must be made no later than 14 days after due date and receipt of the invoice, otherwise, the Customer shall be in payment default.
(7) If the Customer defaults on a payment, we are entitled to charge the Customer default interest in the amount of 10% above the respective base lending rate. If the Customer can provide evidence that we have suffered no damages or substantially lesser damages as a result of the payment default, then we can only claim the statutory default interest rate. We reserve the right to claim higher damages.
(8) The Customer has the right to make set-off claims or withhold payment only if his claims against us are uncontested or have been legally established.
5 The Customer’s Obligations and Duty to Cooperate
(1) The Customer undertakes to assume all legal responsibility with regard to the statutory permissibility of the deliveries and services he has ordered. This applies but is not limited to complying with the German Copyright Act (Urheberrechtsgesetz), the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb), Protection of Minors Act (Jugendschutzgesetz), the Trademark Act (Markengesetz), or the right to one’s own image. The Customer is obligated to indemnify and hold BESITEC harmless from any and all third-party claims. BESITEC is neither entitled nor obligated to monitor or dispute the legal permissibility of deliveries and services ordered by the Customer.
(2) The Customer understands that it is technically possible for third parties to download data that has been published on his behalf or transmitted over the Internet or through the World Wide Web and to use it in an unauthorized manner. The Customer cannot make any claims against BESITEC resulting from such a violation of the law, regardless of the legal basis thereof. It is the Customer’s responsibility to pursue any such violations of the law.
(3) Furthermore, the Customer is obligated to cooperate as necessary so that BESITEC can begin the performance of the agreed upon services in a timely manner and can carry them out without interference or interruption. This includes but is not limited to unlimited access to all of his properties, buildings, rooms/offices, and installations relating to communications technology, as well as making available any necessary documentation and information, including any requested access data and relevant test data. Furthermore, the Customer undertakes to guarantee that the contact persons authorized to make decisions are available and to acknowledge receipt of any services received.
(4) The Customer undertakes to ensure that the services performed by BESITEC are utilized within the scope of all applicable laws by instructing his employees accordingly. Passwords must be kept secret and changed on a regular basis. When utilizing hard- and software, any technical instructions and recommendations provided by the manufacturers or by BESITEC must be complied with. Any inappropriate use of the installations is prohibited.
(5) It is the responsibility of the customer to promptly notify BESITEC of any service disruptions or breakdowns that occur and to support BESITEC in the determination of the cause(s) of such disruptions or breakdowns to a reasonable extent and to undertake all reasonable measures to prevent and/or minimize damages;
(6) It is the responsibility of the Customer to back up his data on a regular basis, in particular, to prevent loss of data prior to installations or maintenance work, as well as backing up (performing local back-ups) data that has been exported to BESITEC’s servers. Furthermore, the Customer is obligated to generate an adequate number of backup copies of all data made available or transmitted to BESITEC. BESITEC expressly points out that, in the event of a loss of data, only the data inventory on the last backup copy is reproducible.
(7) The Customer bears the sole responsibility for the content of the data processed on the systems. As appropriate, BESITEC shall be indemnified and held harmless from any liabilities to third parties. The Customer shall ensure that data inventories from untrustworthy sources do not get past security programs into the data processing systems without being checked, for example, by direct up- or downloading from removable disk devices.
(8) The Customer must coordinate any changes he plans on making to the systems (including migrations) with BESITEC in a timely manner to the extent that the agreed upon performance of services is within their sphere of influence.
6 Customer’s Documentation
Documentation belonging to the Customer, such as, drawings, pictures, renderings, etc. that are made available to BESITEC can be picked up by the Customer or, at the Customer’s express request, can be shipped back to the Customer at his risk and expense, whereby BESITEC’s sole responsibility is to hand over the documentation to the post office, shipping services, or courier. No original documentation shall be handed over to BESITEC, but only copies, transcripts, or data media.
7 Rights of Use
(1) With regard to the software programs created by BESITEC, in the absence of any agreement to the contrary, the Customer shall receive a non-exclusive right for designated use of the program for the duration of this contract.
(2) The Customer is entitled to generate a copy (back-up or archive copy) of the program for data backup purposes. This copy must be marked with BESITEC’s copyright notice. Otherwise, the program and any documentation may be copied only with BESITEC’s written permission. Outside of the narrow limits of copyright, the Customer is prohibited from reverse assembling, reverse compiling, altering, expanding, or reengineering the software.
(3) The Customer may transfer or assign the rights of use to third parties in whole or in part only with the express approval of BESITEC.
(4) All copyrights or proprietary rights, including but not limited to processing rights and rights of distribution, belong to BESITEC. This also applies if the Customer has collaborated on a further development of the program.
(5) To the extent that BESITEC delivers licensed software from third parties, the third party’s terms of the license shall apply.
8 Non-Assignment Clause
The Customer’s rights derived from business transactions with us cannot be transferred or assigned to third parties.
9 Reservation of title
All goods and services are supplied under the reservation of title. We retain title to all goods and services until all our receivables under the relevant contracts have been paid in full.
10 Defects in performance
(1) The Customer is responsible for the technical equipment that enables the use of our delivered goods and services unless the contractual provisions expressly stipulate that our performance obligations include the set-up or inspection of the technical equipment.
(2) The Customer knows that, according to the current state-of-the-art, errors in data processing programs can never be completely eliminated. To the extent that the services we perform include the generation or adaptation of a computer program, the performance of these services shall be considered as completed in accordance with the contract when the computer program and the documentation correspond in all essential points to the system specification.
(3) BESITEC has no influence on the transport of data via the Internet or the World Wide Web. BESITEC does not warrant that sent messages will actually reach the correct recipient if an error occurs during transmission of data outside the scope of BESITEC’s server.
(4) For EDI services (Electronic Data Interchange), BESITEC does not warrant complete absence of interruptions or disruptions. It is the Customer’s responsibility to take appropriate precautions to secure his operations.
(5) In the event of a defect and/or deficiency in our delivery of goods or services, we are entitled to subsequent fulfillment (at our discretion, the remedy of the defect and/or deficiency or the substitute delivery of a non-defective product and/or a non-deficient service). If we do not attempt subsequent fulfillment within the reasonable period that has been set by the Customer in writing or if the setting of a time limit is dispensable pursuant to provisions of the law, the Customer is entitled to proceed to other statutory remedies, including but not limited to reducing the compensation proportionately or withdrawing from the contract. In the event that subsequent fulfillment was attempted within the set time limit, but the defect/deficiency was not remedied, the Customer may proceed to other claims or processes only after an additional reasonable time period for subsequent fulfillment has passed without success, unless it is not reasonable for the Customer to grant this additional period for subsequent fulfillment.
(6) Damage claims arising from defects/deficiencies in any delivery of goods or services by BESITEC are governed by additional prerequisites pursuant to Article 11 of these terms and conditions.
(7) Rights to make claims because of defects/deficiencies are precluded if defects that are evident upon proper inspection or examination of the goods or performed service have not been notified within five business days after the goods were delivered or the service performed. In the case of defects that are not evident upon proper inspection or examination of the goods or performed service, a complaint regarding defects/deficiencies must be issued within five business days after the defect/deficiency appeared or became apparent.
(8) No warranty claims will be accepted if operational or maintenance instructions were not followed, or alterations were made on the goods delivered or services performed, or if spare parts were used that did not match the original specifications unless the defect/deficiency is not a result of the aforementioned. No warranty claims will be accepted for the delivery / generation of computer programs to the extent that the deployment conditions deviate from those specified in the program or if the program is altered without authorization, unless the Customer can provide evidence that the defect/deficiency is not a result of the deviation from the deployment conditions or the alteration of the program.
(9) The Customer is not entitled to remedy the defect/deficiency himself nor is he entitled to any compensation for expenditures for such remedies.
(10) In the event that an inspection reveals that there was no defect/deficiency, we are entitled to charge the Customer for our expenses at our normal hourly rate.
(11) BESITEC does not provide warranty for hard- or software from third-party vendors nor for any other third-party goods or services that may be acquired on behalf of the Customer and at the Customer’s expense. BESITEC assigns any and all warranty rights for third-party goods or services to the Customer.
(12) The period of limitation for any warranty claims is one year.
(1) BESITEC is liable for breaches of duty solely in the event of intent or gross negligence or for simple negligence in the event of violation of a significant contractual obligation or “cardinal obligation.” No other claims for compensatory damages will be accepted. BESITEC is not liable for any violation of contractual or other duties in the absence of intent or gross negligence or non-compliance with a duty which is fundamental for the implementation of the contract and which the contractual counterpart can normally rely upon (cardinal duty). Any other liability is excluded.
(2) In the event that BESITC is liable because of negligence, liability is limited to damages reasonably foreseeable in accordance with circumstances at the time the contract was entered into. No liability for indirect or consequential damages or for loss of earnings will be accepted. Furthermore, liability is limited to the monthly charge compensation.
(3) The aforementioned liability limitations do not apply if BESITEC has undertaken a warranty for damages that are to be compensated in accordance with the Product Liability Act or for damages to health, life, or limb.
(4) BESITEC will not accept liability for the loss or damage of data. The Customer is solely responsible for ensuring adequate data backup/backup copies.
The Parties agree that, within the scope of their contractual relationship, all information, data, documentation, and know-how that are or become known to either of the Parties are confidential and shall be used solely to implement the contract.
13 Data protection and privacy
(1) BESITEC is entitled to store and process the data received from the Customer electronically to the extent that this is necessary in order to fulfill BESITEC’s obligations toward the Customer. BESITEC shall use the aforementioned data solely within the scope of the contractual relationship with the Customer. All information that becomes known to BESITEC and BESITEC’s employees within the scope of the implementation of the contract shall be handled in strict confidence. The Parties to this contract and their vicarious agents are obligated to keep all protected, personal data and any other protected data belonging to the other Party in confidence and to refrain from processing or using it for any other purpose but the fulfillment of their statutory duties. The Parties shall not make this data known, nor will they make it available to third parties, or use it in any other manner.
(2) This obligation shall continue to exist after the end of the activities within the scope of this contract. In this context, it is appropriate to point out the penalty clauses contained in the German Federal Data Protection Act (Bundesdatenschutzgesetz) and the German Penal Code.
14 Final provisions
(1) All changes and additions to this contract must be made in writing. Any alteration of the written form clause must also be made in writing.
(2) Should parts of this contract or parts of agreements regarding goods or services to be provided be or become invalid or null and void, the invalid parts shall be replaced by such agreements that correspond as closely as possible to the economic purpose of the Parties to this contract at the time this contract was entered into. The effectiveness of the contract in its entirety shall not be affected thereby.
(3) The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
(4) Place of fulfillment is Hamburg/Germany. The place of jurisdiction is Hamburg/Germany. This is the sole place of jurisdiction for any and all legal actions brought against us. However, we reserve the right to bring legal action against the Customer at his legal domicile or at another legally justifiable place of jurisdiction.
Updated 17.08.2017 Version 2.3