These general business terms and conditions for services provided by Danielle Software & Service GmbH was last updated on 1 October 2018.
§ 1 Validity of the Terms and Conditions
1.1 The Danielle contractual terms and conditions shall apply exclusively for all deliveries and services provided by Danielle as well as for any business 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.
...
1.3 Offers by Danielle shall be subject to confirmation and shall be unbinding unless an offer has been marked in writing as binding. Offers made by the customer shall be binding for three weeks. A contract shall become effective when Danielle confirms the order in writing or when Danielle carries out the order.
§ 2 Principles for the Provision of Services
2.1 In so far as services are provided at the customer's premises, Danielle alone shall be entitled to give its employees instructions. Those employees shall not be involved in the customer's business. The customer may only give instructions to the Danielle project leader, and not directly to individual employees.
...
2.3 In the event that Danielle cannot perform services for reasons that lie with the customer, Danielle shall nevertheless be entitled to the remuneration. Danielle shall otherwise re-deploy any free working capacity depending on what is possible and on the condition that the customer informs Danielle in writing as soon as possible of the impediment to its work. A period of at least 20 working days must be observed for this purpose.
2.4. Danielle uses the chatbot ‘Danielle Talk’. The chatbot can be used by customers without additional cost if they have already paid for using any other module. However, the scope, i.e. the number of queries, 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 Selection and Specifications
3.1 The customer is aware of the essential functional characteristics of the services to be provided by Danielle. He shall check that the specification 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 for a separate fee.
...
3.4 Presentations in test programs as well as product and project descriptions shall not be considered as guarantees. Guarantees require an explicit written confirmation by Danielle.
§ 4 Scope of Services
4.1 The scope and condition of deliveries and services shall essentially depend on the contract signed by both parties or on written confirmation of the order by Danielle or on the approved specifications, provided such specifications were commissioned by the customer. Other details shall be binding only if Danielle has confirmed them in writing as binding.
...
4.4 Danielle shall provide the services using such technical means as Danielle 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 Copyright and Granting of Rights
5.1 If the services provided by Danielle lead to programs, manuals, sketches or such like, they are protected by copyright. In the relationship between 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. This shall also apply if the software was developed as a result of the requirements or collaboration of the customer. If the rights belong to third parties, Danielle shall have appropriate rights of exploitation.
...
5.5 In the event of an infringement of industrial property rights by third 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 third parties seek access to the software made by Danielle; he must draw third parties’ attention to the limited right of use.
§ 6 Customer Cooperation
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. He shall provide Danielle promptly with all information necessary for the enforcement of the contract. He shall keep up to date all documents put at his disposal by Danielle in the course of the provision of services provided and archive them.
...
6.5 The customer is aware that he must be fully committed to promoting Danielle’s work.
§ 7 Time of Performance, Delays
7.1 Danielle shall perform work on working days from Monday to Friday between 8.00 a.m. and 5.00 p.m. on its premises or, by agreement, on the customer's premises. In the latter case, travelling time and travel expenses are to be paid separately by the customer.
...
7.6 If the customer is responsible for disruptions to the project or delays, Danielle may charge additional costs.
§ 8 Payment, Prices, Bearing of Risk, Settlement and Relinquishment
8.1 Payments shall be due without deduction immediately after receipt of the invoice and payable within 14 days. Danielle may charge companies default interest at 8% above the respective key interest rate of the European Central Bank. Danielle may prove that damages are higher and may demand compensation for this.
...
8.6 The customer can only settle against legally established claims or claims recognised by Danielle unless the customer’s counterclaim was caused by a culpable gross breach of duty by Danielle. This also applies to the customer’s right of retention or right to refuse services. Otherwise the customer can only exercise his right to retain monies owing to defects, if he retains only that part of the remuneration sum that corresponds 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 to 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 Danielle’s prior written agreement.
§ 9 Acceptance and Approval of Delivery and Services
9.1 Acceptance procedure shall be conducted only if the contracting parties have contractually agreed that such procedure is to be performed or a contract 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 that there is no legal provision regarding inspections for these contracts. Nor are services generally subject to acceptance procedure.
...
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 deliveries and services that can be checked only in conjunction with subsequent deliveries and services.
§ 10 Duty of Inspection, Notification and Rejection
According to section 377 of the German Commercial Code, the customer 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 is reproducible. The obligation is based on the customer’s ability to detect faults and describe them.
§ 11 Material Defects and Defects of Title
11.1 Danielle shall ensure that the services provided comply with the quality agreement set out in the relevant contract and are free of third-party rights which impede or preclude use by the customer in accordance with the rules set out in these conditions and in the relevant contract.
...
11.8 The warranty period shall be one year. The statutory limitation period 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 delivered. The commencement of the warranty period shall be governed by the statutory rules.
§ 12 Damages, Reimbursement of Futile Expenses
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 procurement risk must be explicitly agreed in writing between the contracting parties.
...
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 of the year in which the damages occurred and the creditor acquired knowledge, or could have acquired knowledge without gross negligence, about the facts on which the claim is based and about the liable party. The time limitation comes into force at the end of the time limit stated in section 199 paragraph 3 BGB (German Civil Code). The limitation periods for defects of quality and title in accordance with paragraph 11 section 8 remain unaffected.
§ 13 Termination of the Exchange of Services
13.1 Prior to any termination of the further exchange of services that is intended and results from a breach of an obligation by Danielle (by rescission, termination for good cause, claim for damages in lieu of performance), the customer must specify to Danielle the breach of the obligation and call on Danielle to rectify the defect within an appropriate space of time provided that a time limit is necessary in accordance with the legal provisions for each individual case. In addition, the customer must warn Danielle that, after the time limit has expired without a successful outcome, it shall accept no further services from Danielle and demand damages in lieu of services and/or rescission of the contract.
...
13.6 In the event of termination, the customer’s right to terminate continuing contractual obligations (e.g. maintenance certificate) as well as the right in accordance with article 649 of the German Civil Code and the proper termination of a contract remains unaffected.
§ 14 Reservation of Title
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 inform Danielle immediately in writing in the event of third parties having access to the goods subject to the retention of title and must notify third parties of Danielle’s rights.
14.2 Danielle shall release the security, as it chooses, if the amount of the security arising from the retention of title exceeds the claims to be secured by 20%.
§ 15 Confidentiality and Safekeeping
15.1 The contracting parties shall be under a duty to keep confidential all such information and documents containing commercial or business secrets 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 contract, even after the end of the contract. This shall apply in particular to the ordered articles delivered by Danielle and copies thereof made by the customer. The contracting parties shall keep these articles in a safe place and 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 work to articles mentioned in paragraph 1 shall be informed about the duty of confidentiality and safekeeping. As far as the employees of the customer are concerned, this shall also apply to legal relationships relating to the ordered articles and to the powers of the customer under § 4.
§ 16 Data Protection
16.1 Danielle shall observe the provisions of the law on data protection. If Danielle, in the execution of the contract, processes personal data, Danielle shall act on the customer’s instructions and in accordance with § 62 of the German Data Protection Law (BDSG). Danielle shall therefore 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 provisions of Data Protection Law. Danielle shall impose the same obligations on any subcontractors under commission.
16.2 Danielle shall bind, in writing, members of its staff entrusted with 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 accordingly.
§ 17 Training
17.1 Training announced by Danielle shall be carried out by Danielle when the minimum number of participants specified in the announcement is reached. 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 participant in order to cover the difference between the actual remuneration received by Danielle and the remuneration if the minimum number of participants had taken part.
...
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 Final Provisions, Written Form, Jurisdiction
18.1 All amendments and additions to the contract must be in written form in order to be effective. This also applies to the rescission of the requirement regarding the written form. The text form (e.g. e-mail) in accordance with section 126 b of the German Civil Code is not sufficient.
...