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These general business terms and conditions for services provide= d by Danielle Software & Service GmbH was last updated on 1 October 201= 8.
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1.1 The Danielle contractual terms and conditions shall apply exclusivel= y for all deliveries and services provided by Danielle as well as for any b= usiness contacts preceding such a contract. Any other terms and conditions = shall not become part of the contract, even if Danielle does not explicitly= object to these.
1.2 Even if no other reference is made hereto when other contracts are c= oncluded, the valid version of the Danielle general contractual terms and c= onditions for commercial transactions shall apply in each case, unless the = contracting parties agree otherwise in writing.
1.3 Offers by Danielle shall be subject to confirmation and shall be unb= inding unless an offer has been marked in writing as binding. Offers made b= y the customer shall be binding for three weeks. A contract shall become ef= fective when Danielle confirms the order in writing or when Danielle carrie= s out the order.
2.1 In so far as services are provided at the customer's premises, Danie= lle alone shall be entitled to give its employees instructions. Those emplo= yees shall not be involved in the customer's business. The customer may onl= y give instructions to the Danielle project leader, and not directly to ind= ividual employees.
2.2 Danielle reserves the option of replacing an employee at any time by= another equally skilled employee. Danielle can also employ freelance perso= nnel and personnel from other companies in order to fulfil the requirements= of the agreement. Danielle shall inform the customer of any change in empl= oyees.
2.3 In the event that Danielle cannot perform services for reasons that = lie with the customer, Danielle shall nevertheless be entitled to the remun= eration. Danielle shall otherwise re-deploy any free working capacity depen= ding on what is possible and on the condition that the customer informs Dan= ielle in writing as soon as possible of the impediment to its work. A perio= d of at least 20 working days must be observed for this purpose.
2.4. Danielle uses the chatbot =E2=80=98Danielle Talk=E2=80=99. The chat= bot can be used by customers without additional cost if they have already p= aid for using any other module. However, the scope, i.e. the number of quer= ies, may be limited and is based on the number of queries and answers that = have to be processed by Danielle Talk at the same time. If customers would = like to use Danielle Talk without this possible restriction, Danielle would= be please to make a non-binding offer in this respect.
3.1 The customer is aware of the essential functional characteristics of= the services to be provided by Danielle. He shall check that the specifica= tion of the subject matter covered by the contract correspond to his wishes= and requirements. In case of doubt, the customer must obtain expert advice= before the contract is concluded. Danielle provides consulting services fo= r a separate fee.
3.2 The customer shall set out, in writing, his requirements as regards = the services provided by Danielle, for instance in the form of a descriptio= n of requirements or a set of specifications. The implementation of the req= uirements must be agreed contractually in writing.
3.3 If the description of the requirements for the deliveries and servic= es provided by Danielle cannot be carried out by the customer by himself, p= articularly when drawing up the specifications for the development or adapt= ation of the services, Danielle shall provide support for the customer in r= eturn for separate remuneration. The description of requirements (specifica= tions) that was drawn up jointly must be approved by the customer in writin= g. It shall be deemed to have been approved by the customer no later than 1= 4 days after it was prepared and submitted by Danielle if the customer does= not plausibly complain of defects, gaps or contradictions in writing. The = description of requirements shall constitute, after its approval by the cus= tomer, the basis that shall be binding for subsequent collaboration.
3.4 Presentations in test programs as well as product and project descri= ptions shall not be considered as guarantees. Guarantees require an explici= t written confirmation by Danielle.
4.1 The scope and condition of deliveries and services shall essentially= depend on the contract signed by both parties or on written confirmation o= f the order by Danielle or on the approved specifications, provided such sp= ecifications were commissioned by the customer. Other details shall be bind= ing only if Danielle has confirmed them in writing as binding.
4.2 The customer may request changes and extensions in writing. Danielle= may refuse in writing to implement the changes set out in the request if i= mplementation is unreasonable with regard to its operating capacity, if the= changes or extensions are incapable of being implemented or if the modific= ation would result in a reduction in the agreed remuneration.
4.3 If the actual execution of the changes has effects on the range of s= ervices provided under the contract (in particular remuneration, deadlines,= subject of the services), the contracting parties shall adapt the contract= ual provisions in writing. For this purpose, Danielle shall provide the cus= tomer, within an appropriate time, with an offer covering the additional co= sts incurred by the change request and the necessary alterations in the tim= e schedule. The remuneration shall be based on the Danielle price list in f= orce at the time. Danielle shall be entitled to charge for the costs of the= examination and any standstill costs brought about by the change request. = In the event that the contracting parties fail to reach agreement on an ame= ndment to the contract within three weeks of submission of the said offer, = Danielle shall execute the contract without taking account of the change re= quest. =C2=A7 Section 649 of the German Civil Code (BGB) remains unaffected= .
4.4 Danielle shall provide the services using such technical means as Da= nielle deems necessary or appropriate and as are available to Danielle. In = agreement with the customer, Danielle may assign sub-contractors to execute= the work.
5.1 If the services provided by Danielle lead to programs, manuals, sket= ches or such like, they are protected by copyright. In the relationship bet= ween the contracting parties, Danielle shall be vested exclusively with all= rights to the services and to the documents provided in the course of the = preparation and execution of the contract or in the course of training. Thi= s shall also apply if the software was developed as a result of the require= ments or collaboration of the customer. If the rights belong to third parti= es, Danielle shall have appropriate rights of exploitation.
5.2 The customer shall acquire such non-exclusive powers as he needs to = use the results of the services constantly in his business for his own purp= oses in such manner as is described in the contract, in the subsequent prov= isions and in the manuals. Leasing, hiring out, dissemination and presentat= ion of the services shall not be allowed without Danielle=E2=80=99s prior w= ritten consent.
5.3 Any use of the services which goes beyond these provisions and the c= ontract shall require Danielle=E2=80=99s prior written consent. Danielle sh= all invoice the client for any further use in accordance with the current p= rice list.
5.4 As far as other working results produced for the customer in the con= text of a contract (e.g. preliminary studies, design and planning documents= , drawings, etc.) are concerned, the customer shall obtain straightforward,= unrestricted rights of use. The customer shall be entitled to copy, transl= ate and process the working results for his own purposes. If he wishes to d= istribute, present, make commercial use of, or publicly report the results = of work or processing, he must obtain Danielle=E2=80=99s prior written agre= ement.
5.5 In the event of an infringement of industrial property rights by thi= rd parties, the customer shall support Danielle to the best of its ability = and within reason in the judicial and extrajudicial exercise of rights. The= customer shall inform Danielle immediately in writing in the event that th= ird parties seek access to the software made by Danielle; he must draw thir= d parties=E2=80=99 attention to the limited right of use.
6.1 If it is necessary for the fulfilment of the contract, the customer = shall support Danielle without charge in the enforcement of the contract. H= e shall provide Danielle promptly with all information necessary for the en= forcement of the contract. He shall keep up to date all documents put at hi= s disposal by Danielle in the course of the provision of services provided = and archive them.
6.2 The customer shall make available promptly, to the extent necessary = and free of charge, for example, employees, work areas, documents and other= information that may be needed for the fulfilment of the contract.
6.3 If the client fails to comply with his obligations to cooperate, Dan= ielle shall not be in default if the cooperation was necessary for Danielle= to provide the service. If the customer=E2=80=99s cooperation is not corre= ct or consistent or is corrected at a later date, resulting in more time an= d effort, Danielle can issue an invoice for this additional effort provided= that the customer does not immediately carry out its cooperative tasks cor= rectly at Danielle=E2=80=99s request. Other claims by Danielle shall remain= unaffected.
6.4 Upon conclusion of the contract, the contracting parties shall appoi= nt a contact partner or a project leader (where appropriate also representa= tives thereof). The customer=E2=80=99s contact partner (project leader) sha= ll be Danielle=E2=80=99s contact; he shall ensure good cooperation and shal= l take the decisions necessary for the order. The contracting parties shall= inform each other in writing of a change in the identity of the contact pa= rtner.
6.5 The customer is aware that he must be fully committed to promoting D= anielle=E2=80=99s work.
7.1 Danielle shall perform work on working days from Monday to Friday be= tween 8.00 a.m. and 5.00 p.m. on its premises or, by agreement, on the cust= omer's premises. In the latter case, travelling time and travel expenses ar= e to be paid separately by the customer.
7.2 Information on the time of performance and delivery shall not be bin= ding unless Danielle has promised a delivery time in writing as being bindi= ng. The right remains in all events to self-delivery; Danielle is therefore= only responsible, with regard to supplies and services provided by third p= arties, for ensuring that the order is properly carried out and that non-de= livery is not due to reasons for which Danielle is responsible. Partial del= iveries are permissible in so far as the parts delivered can be used reason= ably on their own.
7.3 If the time of performance is to be adhered to, the customer must ca= rry out his duty of cooperation on time and in full and comply with payment= and other obligations. If these conditions are not met, the deadlines will= be extended accordingly, at least by the period of time that the delay las= ted as well as by an appropriate start-up time. This shall also apply where= requirements are subsequently amended.
7.4 Delivery and performance times shall be extended by those periods in= which Danielle is prevented from providing services by circumstances beyon= d its control (e.g. labour disputes, force majeure, failure of technical eq= uipment through no fault of Danielle, failure of suppliers to deliver), plu= s appropriate preparation time after the obstacle has occurred.
7.5 Danielle shall only be considered as being =E2=80=98in default=E2=80= =99 if a reminder is issued. All notices and setting of deadlines by the cu= stomer must be in written form in order to be effective. Extension periods = must be appropriate.
7.6 If the customer is responsible for disruptions to the project or del= ays, Danielle may charge additional costs.
8.1 Payments shall be due without deduction immediately after receipt of= the invoice and payable within 14 days. Danielle may charge companies defa= ult interest at 8% above the respective key interest rate of the European C= entral Bank. Danielle may prove that damages are higher and may demand comp= ensation for this.
8.2 In so far as no prices have been agreed for deliveries and services,= the Danielle price list in force at the time of confirmation of the order = shall apply. Services shall be invoiced in accordance with the time and eff= ort involved. Accessories, data media, additional costs for work carried ou= t at the customer's request outside normal working hours or at the customer= 's premises, travel costs and travelling time shall be paid for in accordan= ce with the price list in force. Value added tax shall be added to all pric= es.
8.3 Deliveries and services shall be invoiced in conjunction with the da= te when they were carried out, or in each case, at the end of the month aga= inst proof of the expenditure and of additional costs. In the case of fixed= -price contracts, Danielle shall be entitled to demand instalment payments.=
8.4 Provided that no fixed price has been agreed in the order, all parti= culars given by Danielle with regard to the expected time and costs for an = order are mere estimates based on the requirements specified by the custome= r and are non-binding in this case. If it should become obvious during the = execution of the work that this estimate will be exceeded by more than 15% = and that the increase is not due to an alteration in the requirements set o= ut by the customer or caused by measures to be paid for specifically, Danie= lle shall notify the customer of the additional expense in writing. The cus= tomer shall be entitled, within a period of 10 days of receipt of the notif= ication, to terminate the order. The work carried out up to then by Daniell= e shall be paid for in addition to expenses.
8.5 Danielle shall dispatch articles covered by the contract at the cust= omer's expense. The place of performance shall be Danielle=E2=80=99s princi= pal place of business. The risk of accidental loss or destruction shall pas= s to the customer once the goods have been handed over properly packaged to= the carrier.
8.6 The customer can only settle against legally established claims or c= laims recognised by Danielle unless the customer=E2=80=99s counterclaim was= caused by a culpable gross breach of duty by Danielle. This also applies t= o the customer=E2=80=99s right of retention or right to refuse services. Ot= herwise the customer can only exercise his right to retain monies owing to = defects, if he retains only that part of the remuneration sum that co= rresponds to the defect. The customer may only base the rights specified in= this paragraph on claims resulting from the individual contracts concerned= . The amounts that the customer shall pay are always determined according t= o section 366 paragraph 2, section 367 of the German Civil Code (BGB). The = customer may assign claims under this contract to third parties only with D= anielle=E2=80=99s prior written agreement.
9.1 Acceptance procedure shall be conducted only if the contracting part= ies have contractually agreed that such procedure is to be performed or a c= ontract for work and services (Werkvertrag) has been concluded. Purchasing = regulations shall come into force for contracts that cover the delivery of = movable articles, that are to be developed or produced, with the result tha= t there is no legal provision regarding inspections for these contracts. No= r are services generally subject to acceptance procedure.
9.2 In the event that, in accordance with paragraph 1, acceptance proced= ure is to be carried out, Danielle may request an acceptance certificate fr= om the customer as soon as the delivery or work has been essentially provid= ed correctly, completely and without defect. Particulars of the acceptance = procedure may be laid down in the respective contract.
9.3 Even in the absence of a signed acceptance certificate, work shall b= e deemed as accepted two weeks after a written request for acceptance has b= een issued if the customer does not complain of defects in writing within t= he aforementioned time limit. The customer shall be entitled to refuse acce= ptance only if substantial defects are presented.
9.4 Paragraphs 1 to 3 shall also apply to partial services. However, in = this case, approval shall not extend to such characteristics of the deliver= ies and services that can be checked only in conjunction with subsequent de= liveries and services.
According to section 377 of the German Commercial Code, the custome= r shall instruct a qualified member of his staff to inspect immediately all= services provided by Danielle and to submit complaints describing exactly = any defects in writing. The fault must be described in such a way that it i= s reproducible. The obligation is based on the customer=E2=80=99s ability t= o detect faults and describe them.
11.1 Danielle shall ensure that the services provided comply with the qu= ality agreement set out in the relevant contract and are free of third-part= y rights which impede or preclude use by the customer in accordance with th= e rules set out in these conditions and in the relevant contract.
11.2 In the event of proven defects in the services provided by it, Dani= elle shall guarantee, in the first place, rectification free of charge in s= o far as this is technically possible and economically reasonable.
11.3 Should defects occur, Danielle shall subsequently fulfil its obliga= tions by handing over a new version of the services or documentation, of it= s choosing, which does not contain the defect or by illustrating the possib= ilities for avoiding the effects of the defect. Defects of title may also b= e rectified in that Danielle wards off claims from third parties or satisfi= es these or, instead, exchanges the service concerned for another service o= f the same value which meets the requirements specified in the contract.
11.4 In the event that third parties assert property rights (in particul= ar copyrights/patent rights) against the customer, the customer shall notif= y Danielle immediately in writing. The customer shall not recognise the cla= ims of third parties on his own initiative. Danielle shall defend itself ag= ainst the claims of third parties at its own expense and release the custom= er from all costs and damages connected with the defence against such claim= s, provided that such costs and damages are not due to the customer's actin= g in breach of his obligations.
11.5 In the event that defect rectification ultimately fails after sever= al attempts - at least two attempts to eliminate the same defect - or Danie= lle refuses to carry out defect rectification, the customer shall be entitl= ed to reduce the remuneration for the contract appropriately or to revoke t= he contract. Section 12 shall apply for compensation claims or reimbursemen= t of futile expenses. If the customer wants to terminate the contractual ag= reement (e.g. cancellation, damages instead of services), the regulations i= n section 13 are to be adhered to.
11.6 The customer shall take, within reasonable limits, all necessary me= asures to determine, limit and document the defects. In the event of a warr= anty claim, the customer shall provide Danielle with all available informat= ion and shall co-operate to eliminate the defects according to section 6.= p>
11.7 The precondition for warranty shall invariably be a complaint of a = defect pursuant to section 10 and the fact that the defect is due to delive= ries and services performed by Danielle. Delayed, insufficient or unfounded= complaints shall release Danielle from its duty to perform. In so far as D= anielle nevertheless acts, it shall invoice the work carried out.
11.8 The warranty period shall be one year. The statutory limitation per= iod shall apply in the event of intention to deceive and the presence of a = defect of title which could cause a third party, on account of a title, to = demand the surrender of the software delivered or of other articles deliver= ed. The commencement of the warranty period shall be governed by the statut= ory rules.
12.1 Danielle shall only be accountable for intent und negligence except= where a warranty or a procurement risk has been accepted and provided that= no agreement has been made to the contrary. Accepting a guarantee or a pro= curement risk must be explicitly agreed in writing between the contracting = parties.
12.2 Danielle shall only be liable for compensation or reimbursement of = futile expenses, whatever the legal basis, including non-contractual or pre= -contractual liability, according to the following conditions:
In cases of intent, liability is to the full extent.
b) For gross negligence or in the absence of a guarantee issued or the a= cceptance of a procurement risk in accordance with paragraph 1, liability w= ill be accepted to the amount of foreseeable damages or of the expense whic= h should have been prevented by the duty to exercise care or by the warrant= y commitment.
c) In cases of ordinary negligence, and only if there is a breach of a c= ardinal duty or such an essential duty that achieving the purpose of the co= ntract is endangered, Danielle is liable to pay compensation for damages or= expenses which were typical and foreseeable, in accordance with the amount= but limited to =E2=82=AC10,000.00. For all cases of damages that occur wit= hin one year, total liability is limited to the annual amount of remunerati= on.
12.3 A claim for compensation for damages may not be lodged if Danielle = is unable to fulfil its obligations because a sub-contractor does not deliv= er correctly. Danielle shall only be made liable if it does not carry out a= n order for a third party correctly or if it is responsible for non-deliver= y for other reasons.
12.4 Legal liability for injury to life, body or health and as specified= under the product liability law shall remain unaffected.
12.5 The plea of contributory negligence shall remain unaffected.
12.6 If Danielle has an insurance policy to cover the damage, Danielle s= hall provide the customer with the full amount paid out under the insurance= policy regardless of the limitation of liability and minus any amount alre= ady paid out by Danielle.
12.7 Danielle shall be liable for the recovery of data only where the cu= stomer has ensured that such data are reproducible at reasonable expense fr= om data sets held in machine-readable form. This liability limitation does = not apply to intent or gross negligence.
12.8 Claims for damages or reimbursement of futile expenses in the case = of contractual or non-contractual liability shall be barred after one year = provided that the damages are not based on injury to life, body, health or = liberty and were not caused by intent. The time limit begins with the end o= f the year in which the damages occurred and the creditor acquired knowledg= e, or could have acquired knowledge without gross negligence, about the fac= ts on which the claim is based and about the liable party. The time limitat= ion comes into force at the end of the time limit stated in section 19= 9 paragraph 3 BGB (German Civil Code). The limitation periods for defe= cts of quality and title in accordance with paragraph 11 section = 8 remain unaffected.
13.1 Prior to any termination of the further exchange of services that i= s intended and results from a breach of an obligation by Danielle (by resci= ssion, termination for good cause, claim for damages in lieu of performance= ), the customer must specify to Danielle the breach of the obligation and c= all on Danielle to rectify the defect within an appropriate space of time p= rovided that a time limit is necessary in accordance with the legal provisi= ons for each individual case. In addition, the customer must warn Danielle = that, after the time limit has expired without a successful outcome, it sha= ll accept no further services from Danielle and demand damages in lieu of s= ervices and/or rescission of the contract.
13.2 If Danielle reacts to the customer=E2=80=99s request for rectificat= ion of a defect, the customer shall, in order to avoid legal uncertainty, d= eclare definitively within one week of the expiry of the deadline whether h= e intends adhering to the existing contract. The customer shall not be enti= tled to terminate if Danielle has provided the services due.
13.3 The customer's claim to fulfilment of the contract shall remain in = force until such time as he demands damages in lieu of performance and/or d= eclares that he rescinds the contract.
13.4 All declarations in this context must be made in writing.
13.5 In the event that the customer exercises his right to terminate the= contract and if he shares responsibility for the circumstances that entitl= e him to terminate the contract, any resulting claims for damages on the pa= rt of Danielle shall remain unaffected.
13.6 In the event of termination, the customer=E2=80=99s right to termin= ate continuing contractual obligations (e.g. maintenance certificate) as we= ll as the right in accordance with article 649 of the German Civil Code and= the proper termination of a contract remains unaffected.
14.1 Danielle shall retain the ownership of articles delivered until all= existing and future claims under the contract concluded with the customer = have been settled in full. The customer does not have the right to use the = ordered articles until payment has been made in full. The customer must inf= orm Danielle immediately in writing in the event of third parties having ac= cess to the goods subject to the retention of title and must notify third p= arties of Danielle=E2=80=99s rights.
14.2 Danielle shall release the security, as it chooses, if the amount o= f the security arising from the retention of title exceeds the claims to be= secured by 20%.
15.1 The contracting parties shall be under a duty to keep confidential = all such information and documents containing commercial or business secret= s or designated as confidential as they acquire from the other contracting = partner or as become known to them in the course of execution of the contra= ct, even after the end of the contract. This shall apply in particular to t= he ordered articles delivered by Danielle and copies thereof made by the cu= stomer. The contracting parties shall keep these articles in a safe place a= nd ensure that third parties do not have access to these.
15.2 Employees of the contracting parties and third parties taking part = in the execution of the contract who have access in the course of their wor= k to articles mentioned in paragraph 1 shall be informed about the duty of = confidentiality and safekeeping. As far as the employees of the customer ar= e concerned, this shall also apply to legal relationships relating to the o= rdered articles and to the powers of the customer under =C2=A7 4.
16.1 Danielle shall observe the provisions of the law on data protection= . If Danielle, in the execution of the contract, processes personal data, D= anielle shall act on the customer=E2=80=99s instructions and in accordance = with =C2=A7 62 of the German Data Protection Law (BDSG). Danielle shall the= refore process or use personal data only in the context of this contract or= of other written instructions by the customer and in accordance with the p= rovisions of Data Protection Law. Danielle shall impose the same obligation= s on any subcontractors under commission.
16.2 Danielle shall bind, in writing, members of its staff entrusted wit= h processing personal data in accordance with section 53 of the German Data= Protection Law (BDSG), to observe data secrecy and shall give evidence of = this to the customer on request. Subcontractors shall also be bound accordi= ngly.
17.1 Training announced by Danielle shall be carried out by Danielle whe= n the minimum number of participants specified in the announcement is reach= ed. If that number has not been reached one week before the training date, = Danielle shall not be obliged to carry out the event, unless the remaining = participants express the wish that the seminar be carried out nonetheless. = In that case, the participation fee shall be increased pro rata for each pa= rticipant in order to cover the difference between the actual remuneration = received by Danielle and the remuneration if the minimum number of particip= ants had taken part.
17.2 Danielle may, without giving reasons, replace the announced instruc= tor by a person who has the same expertise.
17.3 Danielle may at any time cancel an event and refund the seminar fee= s for important reasons, e.g. instructor is prevented from attending. In su= ch cases, Danielle shall try to offer alternative dates. Danielle shall be = obliged to inform the customer promptly in writing of the cancellation of a= scheduled date.
17.4 The customer may, at any time, allow a person, other than the perso= n originally registered, to take part.
17.5 The customer may cancel his registration without incurring further = costs at any time up to four weeks before the training event. If a cancella= tion takes place after that time, the customer shall be obliged to pay a ca= ncellation fee of 25 % of the amount of the seminar. Cancellation must in a= ny event be made in writing.
17.6 Hotel reservations made by Danielle at the customer's request shall= invariably be made by order of, in the name of and for the account of the = customer. Danielle shall perform this service purely as a courtesy.
18.1 All amendments and additions to the contract must be in written for= m in order to be effective. This also applies to the rescission of the requ= irement regarding the written form. The text form (e.g. e-mail) in accordan= ce with section 126 b of the German Civil Code is not sufficient.
18.2 If contradictory interpretations or assessments arise between these= terms and conditions for services and the general business terms and condi= tions https= ://confluence.personalabteilung.cloud/pages/viewpage.action?pageId=3D973222= 5, these terms and conditions for services shall take precedence.<= /p>
18.3 The court of jurisdiction for any disputes in connection with this = agreement is Frankfurt on Main if the customer is a businessman, a legal en= tity under public law or a special fund under public law, unless there is a= n exclusive place of jurisdiction. Danielle shall also be entitled to bring= proceedings in the court that has jurisdiction for the customer's principa= l place of business in general.
18.4 The laws of the Federal Republic of Germany shall apply exclusively= with the exception of UN commercial law.