1 The subject of the contract and scope of application
- Forthcoming agreement (furthermore, The Framework Agreement”) governs the rights and obligations of the parties in connection with various IT-services of the Contractor, and also forms the legal framework for a written individual agreements about providing IT services through The Contractor (hereinafter “The Individual Contracts”) that should be conclude in the future.
- The subject of the framework contract and / or based on it individual contracts to be entered into are IT-services of The Contractor, and in particular the planning, development, delivery, implementation and maintenance of software). The request for the conclusion of an individual contract does not exist.
- Unless expressly agreed derogation, the rights and obligations of the parties are directed by the rules of this framework agreement and supplements, as long and as much as is within one of the subsequent completion of the individual contract does not deviate from it. For more on the services that are the subject of the contract, their individual description and the mutual responsibilities of the Contracting Parties it will be determined in the context of individual contracts.
- The individual contracts concluded under this framework contract shall override the rules of this framework contract, if they in relation to the framework agreement containing more special rules and if the rules in individual contracts contradict the rules of the framework contract.
- The general sales and business conditions of the Contracting Parties shall not apply, unless the Contracting Parties specifically agree in writing their validity.
- The Contractor’s offers are non-binding. This also applies when The Contractor handed the Principal catalogues, price lists, information leaflets or other product descriptions or documents – also in electric form – on which he retains ownership and copyright.
- Each of the Contracting Parties shall be appointed for the provision of services or works on the basis of each individual contract one project manager. Realization of the project will be agreed between the project managers. Project managers must within one week from signing the contract in writing be named to individual contract partner. Project managers minimum weekly jointly review the progress of the project.
2 The obligations of The Contractor
- The Contractor is in providing of contractual services relates with care of a good manager (§ 347 Abs. 1 HGB).
- Description of service for contracted services of The Contractor shall be taken from the respective individual contract. For quality that exceeds the agreed description of the services are generally not liable.
- Guarantees require explicit and written confirmation from the management of The Contractor.
- The Contractor of its obligations may only after the consent of the Principal transferred to third parties or involve subcontractors. If the Principal does not refuse consent within 14 days after notification by The Contractor, it is taken that the consent is given. The Principal will not refuse consent for the inclusion of subcontractors without very good reason.
3 The Principal’s obligations
- The Customer shall timely and completely make available all the information they need to perform the task in accordance with the individual contract to The Principal.
- The Customer shall all from it made and / or to The Principal in order to perform the task of dedicated facilities, data and information give beforehand to check regardless of any rights of third parties. The Principal is also obliged to regularly and properly secure their data according to the current state of technology.
- The Principal will timely support The Contractor in providing its contracted services in an appropriate volume. In case of necessary services of co-operation are not provided fully or in a timely manner, it can be contracted delivery time to move.
- The Principal takes on obligation of all deliveries and services of The Contractor to verify the complaint in accordance with § 377 HGB.
4 Intellectual property and the right to use
- All rights and intellectual property rights to the software and results of the work of the Principal in totality belong to and remain with the Principal. With the conclusion of this framework agreement and / or further individual contracts is not connected any recognition of the rights, unless they are not explicitly specified in writing.
- If the Principal is left the software to use, the following applies:
- The Principal may standard software which is subject to contract use only to the extent specified in individual contracts. The Principal receives authorization to use in the contractual type of buying and selling on indefinitely, with the contractual type – rent for the duration of the contract agreed. If it is left the standard software as part of the contractual type buying and selling or contractual type – rent, should be individually determined in the context of individual contracts.
- The Principal may standard software covered by the contract use only for the purpose of performing their business transactions. Only in this volume are recognized rights for multiplication of software. All rights that extend beyond that, especially the right to expansion including rent, the translation, processing, arrangement and the public commission of affordable standard software and remain exclusively with The Contractor or by a third manufacturer.
- If on the basis of an individual contract it would be made an individual software (e.g.. App) according to individual ideas of The Principal on the contractual type of work contract, then they can admit further rights to the use and application of which are in this regard. Volume of the specific recognition of rights is determined in this case according to individual contracts. No specific explicit regulation on the right to treatment is included. Without explicit regulation in the individual contract issue source code is not mandatory.
- Any use rights will be available only after full payment of fees which is contracted by respective individual contract.
- The forthcoming regulation applies proportionally for software that is under maintenance contracts designed or modified (including Updates and Upgrades of the Software which is to be maintained) by The Contractor.
- The legal minimum rights of users, remain under § 69d UrhG untouched by the upcoming regulation.
5 The changes of the subject of the contract
- Customer may do acquisitions, I. S. v. § 7 (if the download is provided in the respective individual contract) request in writing change of the contractual requirements for software. The Contractor must carry out changed services, as long as it is acceptable in the context of it’s business efficiency.
- If The Contractor does not refuse the change within two weeks from access to requirements of the change as unacceptable or if he does not do testing applicable according to the next paragraph, The Contractor must carry out the changes.
- If the request of the change from The Contractor requires extensive examination of whether and under what conditions the change can be carried out, the more he can do to claim compensation, if The Principal in writing to this was warned and The Principal is in writing issued a warrant for testing; the deadline to the end of which the Principal should be communicated in writing to the test result will be determined by mutual agreement
- If you change of services or requirements affecting the regulation agreed to perform the contract, e.g., price, terms of performance, or downloading, The Contractor will apply for adjustment of individual contracts in addition to supplements according to the current situation within two weeks after the request of the change. If it would not be done and if he does not seek testing, he shall execute changed service under existing agreements.
- If The Contractor requires customization of an individual contract, The Principal shall, within two weeks inform, whether he accepts the adjustment of the contract or not. If The Principal does not respond, will not be contracted any change.
- Regardless of the pending proceedings, changes of at any moment may mutually agree between the project managers. One such agreement project managers must document in writing, and take it as a supplement to the respective individual contract. If in such cases are not agreed changes of in the price nor changes of the contractual terms, the services must be carried out within the framework of previously contracted terms and conditions.
6 Compensation and calculation
- If not otherwise agreed in writing, are valid the applicable prices and conditions of The Contractor which were valid at the time of providing services. All named prices are net prices, possible legal value added tax is, except for special regulation of tax (e.g.. Reverse Charge), dissenting states.
- Unless otherwise agreed, the calculation will follow a month for services that are provided in the previous month and according to the consumption (Time & Material) appropriate contractual rates for an hour and a day.
- The Principal agrees with that in the particular case in measuring of The Contractor may issue and deliver even the electric bills, if they are, according to the Law of Tax on Turnover, suitable for input tax deduction.
- Offsetting for the claim of The Contractor is excluded, unless the counterclaim with which is offset legally established or uncontested or contested but ready for decision; this applies correspondingly also to request rights of retention by the The Principal. The Principal its right of retention can only do if his counter-request is based on the same contractual relationship.
- After the expiry of the objectives of payments, which are specified in the calculation, The Principal comes in late with payment. The Principal during the delay must pay interest in the amount of 9% over the basic interest rate. Highlighting the damage caused by the delay beyond that remains reserved.
- If the subject of an individual contract is an individual adjustment of standard software or creation of individual software and if in the respective individual contract is agreed download, the following applies:
- After finished installation of software or adjustments The Principal will do downloading the software or services for customizing. Download services assumes functional test. Functional test is successfully completed, when software or services for customizing fulfill contractual requirements in accordance with the respective description of services.
- During the functional test, The Principal shall promptly inform The Contractor all deviations of delivered services for customizing that arise in relation to service requests. If the functional test was successful, should without delay in the form of text reveal download.
- If The Principal not disclosed download in accordance with the deadlines, The Contractor can determine the appropriate deadline for submission of the announcement of download. Services for the development and customization are considered to be assumed by the expiration of the term, if The Principal is not in written published download nor it is to The Contractor in writing presented by more deficiencies to be removed or if The Principal – regardless of all the deadlines – uses software or services for customizing in operating facility.
- If the subject of the respective individual contract adjustment or delivery of standard software or creation of individual software, then, in relation of defects, the following applies:
- In defects (material and legal defects) are valid legal regulations, if the following provisions do not provide for something else.
- As contracted quality of software and services for customizing to be make or deliver the are valid service descriptions in the book of obligations, which is an integral part of the respective individual contract
- If in the submitted programs and other services of The Contractor occur the defects, The Principal will notify the same without delay and with indicating the information that is meaningful to identify shortcomings. If The Contractor is unable to remove deficiencies or re-submit error-free, then he would expose the Principal possibilities of dealing with deficiencies. If they are acceptable to the Principal, they are counted as the subsequent fulfillment.
- If the subsequent fulfillment of The Contractor and after two attempts of subsequent improvement fails, The Principal of his choice may require reducing benefits (reduction) or cancellation (termination) of the contract. In a slight lack of e.g.. at slight variations existing quality of the planned quality, to the Principal is not entitled termination.
- If The Principal due to legal or material defects, after unsuccessful subsequent fulfillment, decides to use the right to withdraw from the contract, does not belong to him right to compensation for defects. If The Principal decides, after an unsuccessful subsequent fulfillment, however, for compensation of damages delivered software remains with The Principal, if him it is acceptable.
- The deadline for the guarantee begins with the submission of software that needs to be delivered or with downloading the software that needs to create or customize and it is one (1) year.
- If on one individual contract is applied The Law of the Lease, e.g., at abandonment of standard software for a specific use time, involuntary responsibility, regardless of fault, in accordance with § 536a BGB, excludes for initial defects.
- Requests for guarantee are reversed, if The Principal himself takes subsequent attempts to improve matters with defects or allows such undertaking by third parties unless The Principal in the individual case proves that such measures are not also contributed to the cause of the defect.
- The primary obligation on debugging and deadlines within the Service Level Agreements (SLA) remain untouched in individual contracts from forthcoming regulation.
- The Contractor shall be liable for compensation for damages regardless of the legal basis only for intent and gross negligence. The Contractor further is liable for negligent breach of obvious contractual obligations (so-called cardinal obligations), this means that obligations whose violation jeopardizes achieving the purpose of the contract and on whose observance the contractual partner regularly can be trusted. In the case of careless injury of cardinal obligations The Contractor is only responsible for predictable, typical contractual damages. Exclusion or limitation of warranty of The Contractor works on a personal warranty of its legal representatives, employees or other assistants in fulfillment. Upcoming restrictions of warranty do not apply in cases of violation of life, body and health as well as in the absence of expressly guaranteed quality or in case of treacherous actions; warranty under the Law on producer responsibility also remains intact.
- In data loss, which was The Contractor, The Contractor always correspond only for the consumption of which is at the proper insurance data by The Principal normally required for data recovery. In easier negligence this warranty takes place only if The Principal just before the measures that led to the loss of data made the correct insurance information. It is a proper insurance data, when The Principal his data minimum daily completely secure.
10 Data protection and confidentiality
- The Contracting Parties undertake to respect the provisions for data protection, including the provisions of the Federal Data Protection Act (BDSG).
- The Contracting Parties shall ensure that all of their own staff who deal with the implementation of this framework agreement and / or further individual contracts, previously committed to confidentiality (§ 5 BDSG).
- If in connection with this framework contract and / or based on it individual contract pending data processing according to the order by one of the parties, the parties will conclude a written agreement on the processing of data according to the order that meets the demands of § 11 Paragraph 2 BDSG and that add to framework contract and / or the respective individual contract as a special supplement.
- Both contracting parties undertake all in the context of the contractual relationship acquired knowledge of the operating or business secrets from other side use only for the implementation of this agreement and for a period of three (3) years after the receipt of such knowledge treat them confidentially. Both contracting parties also commit their associates on confidentiality.
11 Duration and Termination
- This framework contract shall enter into force on the date of signature by both Contracting Parties and lasts indefinitely. Each of the Contracting Parties may at any time terminate the orderly framework contract with a notice period of 3 months to the end of the month. The right to extraordinary termination for important reasons remains unaffected (§ 314 BGB).
- In the case of termination of the framework contract already signed individual contracts remain in force until their complete fulfillment in the framework and under the condition of continuing validity for them existing regulation of the framework contract.
- Terminations for its validity demand the written form, which can be held only by a handwritten signature of a letter and its access to the recipient of termination, which means not by fax or e-mail.
12 Final provisions
- The rights and obligations under this framework contract remain intact while changing the format or the reorganization of the operational organization of the Contracting Parties, even if they lead to separation of parts of the company or to the creation of new legal entities.
- If one of provisions of this framework contract is null and void or unenforceable, the validity of the remaining provisions remains intact. The Contracting Parties shall that null and void provision immediately replace by a valid provision that most closely matches the economic purpose of the null and void or unenforceable provision. The same is true in the case of contractual gaps.
- There are no oral side agreements. Changes or additions to this framework contract or one of the individual contracts for its validity demand the written form which cannot orally be waived, unless it is in this framework agreement that deviated from and is provided text form as sufficient.
- To this framework contract as well as on individual contracts can be applied exclusively German law. Purchase right of the United Nations (CISG) as well as relevant national referral norms mutually exclusive. Court of jurisdiction and place of performance is Frankfurt am Main.
- If in the context of individual contracts does not deviate from the regulation of this framework contract, then all regulation of this framework contract is valid for each individual contract in an appropriate manner.