General Terms and Conditions of Join GmbH, Klausenerstraße 10a, 39112 Magdeburg
(September 2018)
1 Subject Matter
1.1 All deliveries and services in connection with the provision of software by Join GmbH in commercial business transactions are based exclusively on these terms and conditions.
1.2 General terms and conditions of the client shall not become part of the contract, even if they are attached to requests for quotations, orders, declarations of acceptance, etc. and are not contradicted.
2 Quotes
2.1 The customer will not make price information or offers provided to him/her accessible to third parties, either in whole or in part, including in an edited version, without the prior written consent of Join GmbH.
3 Services of the client
3.1 Close cooperation between Join GmbH and the client is necessary for the timely fulfilment of the services in accordance with the client’s requirements. Therefore, one or more contact persons on the side of the client must be named, who:
in questions of the course of the project,
in defining the requirements (specification),
in providing the necessary information and documents,
in the definition of audit criteria and procedures,
participate in the fault detection and elimination process and carry out reviews and malfunctions
Any costs incurred for these activities shall be borne by the client. If the client does not comply with the provision of a contact person or if this person is not available to a sufficient extent, corresponding tasks will be performed by an employee of Join GmbH. The costs for these activities are to be borne by the client. Delays due to insufficient cooperation of the client in the definition or functional testing of project results may result in delays in the deadline.
3.2 The client grants the employees of Join GmbH every necessary support for their work in the client’s company. This support includes, among other things, that the client ensures that a qualified employee is available to provide support at the place of performance, and ensures that the employees of Join GmbH are granted free access to the respective computers and software at the agreed times.
3.3 The client ensures that all contractual services are provided in a timely manner, to the required extent and free of charge for Join GmbH. The content and scope of these services are regulated in the respective individual contract.
3.4 Storage mediums provided by the client must be flawless in terms of content and technical specifications. If this is not the case, the client will compensate Join GmbH for all damages resulting from the use of these storage mediums and indemnify Join GmbH from all claims by third parties.
3.5 The client retains copies of all documents and storage media handed over to Join GmbH, which Join GmbH can access free of charge at any time. After the service has been completed, Join GmbH is entitled to destroy the documents received from the client. If requested by the client, Join GmbH will return the documents.
3.6 If the client does not perform a required service, does not perform it on time or does not perform it in the agreed manner, the resulting consequences (e.g. delays, additional work) shall be borne by the client.
3.7 The customer’s obligations to cooperate are main obligations.
4 Entitlement to remuneration and reservation of rights
4.1 Remuneration and ancillary costs are subject to value added tax.
4.2 If a remuneration according to time expenditure is agreed upon, activity reports will be invoiced by the Join GmbH, based on the actual expenditure incurred. The invoice is issued monthly.
4.3 If remuneration at a fixed price has been agreed upon, the Join GmbH is entitled to an advance payment and to appropriate partial payments at least in the following proportions of the remuneration:
at the start of the contract 20%
in the case of the first partial delivery, after a maximum of 6 months after the start of the contract 35%
45 % on delivery of the service.
In addition to the remuneration, Join GmbH will charge the additional costs incurred (e.g. travel expenses) monthly in arrears.
4.4 If the working time or travel time is outside normal working hours, the following surcharges will be added to the remuneration per working hour:
30 % on working days between 20.00 and 6.00
50 % on Saturdays, Sundays and public holidays.
4.5 Invoices are due for payment immediately without deduction and must be paid within 30 days of receipt of the invoice.
4.6 The customer can only offset undisputed or legally established claims against claims from Join GmbH.
4.7 In case of a defect, the customer may only withhold payments to a proportionate part, taking the defect into account.
4.8 The rights to the software are only transferred from Join GmbH to the customer after full payment.
5 Delay
5.1 Should the Join GmbH be culpably in delay with the fulfilment of a binding delivery or service date by more than two (2) weeks, the customer can demand 0.7 % of the value of the delivery or service with which the Join GmbH is in delay for each completed week of delay, however, a maximum of 7 % of this value, as lump-sum compensation for the period of the delay, unless the Join GmbH can prove a lower damage. All claims for damages from delay are thereby settled. The Join GmbH does not assume any further liability in the event of default.
5.2 If the customer is in delay with his payment obligation, the delayed payment shall bear interest at 8 percentage points above the base rate of the European Central Bank per annum. Any further claim for damages remains unaffected.
6 Quality defect
6.1 If the service provided by the Join GmbH has a material defect, the client can choose to demand that the Join GmbH rectifies the defect or makes a new delivery (= supplementary fulfilment).
6.2 If the customer has set a reasonable deadline for Join GmbH after a first reminder and Join GmbH refuses subsequent fulfilment, or if two attempts at subsequent fulfilment fail due to the same material defect, insofar as nothing else arises from the type of item or defect or the other circumstances, the customer retains the right to demand a reduction in payment in the event of a significant breach of duty. The same applies if subsequent performance is unreasonable for Join GmbH. In the case of an insignificant breach of duty, the customer can only demand a reduction of the remuneration.
6.3 In addition, the client may demand compensation for damages or reimbursement of his futile expenses if the legal requirements are met.
6.4 Due to a material defect, which has only an insignificant impairment of the agreed usability or the agreed quality, no claims for material defects can be made against the Join GmbH.
6.5 If, after notification of a malfunction in connection with the software, Join GmbH has provided services for troubleshooting and error correction and there is no material defect, then the customer must bear the costs incurred as a result. When calculating the costs, the remuneration rates of the Join GmbH price list valid at the time of the service provision are used as a basis. The price list can be viewed at any time on the business premises of the Join GmbH.
6.6 The liability for material defects expires for those services provided by Join GmbH, which the customer modifies or in which he intervenes in any other way, unless the customer is not responsible for the defect.
6.7 For a proper correction of errors, it is necessary that the client sufficiently describes the error so that the error can be determined by Join GmbH and that any errors found are reported with an error message in the form agreed in the contract. Furthermore, that necessary documents for the correction of errors are made available to Join GmbH for inspection and that the software is operated under the intended operating conditions in accordance with the documentation.
6.8 If the defect is based on the defectiveness of a service of the supplier, the liability of the Join GmbH in the case of a material defect is first restricted to the assignment of the defect claim, which Join GmbH is entitled to against the supplier. If the supplier refuses to provide supplementary fulfilment or delays it unreasonably for the customer, or if the supplier is not able to provide supplementary fulfilment for other reasons, the customer’s claim for defects against the Join GmbH is based on the provisions of section 9.2. The limitation period is suspended for the duration of the claim against the supplier.
6.9 Claims by the customer for expenses incurred for the purpose of subsequent fulfilment, in particular transport routes, labour and material costs, are excluded if the expenses increase because the object of performance was subsequently delivered to a place of performance other than the contractually agreed place of performance.
6.10 Claims for material defects become statute-barred one year after acceptance of the service.
6.11 Join GmbH is entitled to call in third parties to rectify a material defect.
7 Changes of service
7.1 If changes occur on the part of the client during the course of the contract that affect the project results, Join GmbH must be informed of this immediately in writing. The project manager then decides on the further procedure in coordination with the contact person named by the client. If the required changes result in increased effort for the implementation or if partial services already provided become unusable, the client must bear the necessary additional expenses.
7.2 If changes occur in the course of the contract that affect the project result, Join GmbH will inform the client immediately. The contact person of the client will then decide on the further procedure in coordination with the project manager of Join GmbH.
8 Acceptance
8.1 Join GmbH can present partial deliveries or partial services for acceptance (partial acceptance). These include: self-contained phases for the fulfilment of specific phases or services, self-contained and thus functional parts, self-contained documents or parts of documents.
8.2 The customer will immediately carry out every acceptance (including partial acceptance) of the services provided by Join GmbH. Join GmbH is entitled to participate in each acceptance.
8.3 The client is not entitled to refuse acceptance due to minor defects.
8.4 If, within fourteen (14) calendar days of receipt of the written request or contractually agreed deadline, no rejection or other reaction is received from the customer or if the customer takes over the performance results into his business, acceptance shall be deemed to have taken place.
8.5 Complaints on the part of the client during acceptance must be recorded in writing.
9 Liability
9.1 The Join GmbH is liable without limitation, insofar as the cause of the damage is due to intent, as well as in the event of injury to life, body and health for which the Join GmbH is responsible, as well as in the event of fraudulent concealment of a defect. Liability for loss of profit is excluded.
9.2 For all cases of gross negligence, Join GmbH is liable up to a total amount of 10,000.00 Euros. In the case of normal and slight negligence, the Join GmbH is only liable if an essential contractual obligation is violated. In the case of normal and slight negligence, the liability is limited to an amount of up to 20,000.00 euros.
9.3 In the case of liability on the part of Join GmbH, contributory negligence on the part of the customer must be taken into account appropriately, especially in the case of insufficient notification of defects or insufficient data backup. Inadequate data protection also exists if the customer has failed to protect the individual data or an entire data stock through appropriate security measures against external influences (e.g. against computer viruses).
9.4 However, the maximum amount of liability for all cases of damage caused by and in connection with the present contract – including damages for non-fulfilment – is limited to a maximum of 40,000.00 euros per year.
9.5 The Join GmbH is not liable for the recovery of data.
10 Limitation period
10.1 All contractual claims for damages as well as claims due to defectiveness of the service become time-barred after one year.
11 Subcontracting
11.1 Join GmbH reserves the right to subcontract to third-party companies. The selection and monitoring of these lies within the responsibility of Join GmbH.
12 Data protection and privacy
12.1 The client is responsible for compliance with laws and regulations on data protection.
12.2 The processing of personal data is only permitted if a law or other legal provision permits or orders it or if the person concerned has given his or her consent or agreed to it in the form of a contract. Personal data, which Join GmbH receives from a client, is only used within the scope of the contractually agreed upon purposes and even then only to the extent necessary for each specific case. Data will only be disclosed to government agencies if this is required by law. All employees are bound to data secrecy.
12.3 Join GmbH is obligated to treat the operating data that has been disclosed as strictly confidential and to use it exclusively within the scope of the purposes defined for the completion of the order. The employees are obliged to maintain confidentiality.
13 Non-solicitation agreement
13.1 For the duration of the project and for a period of 2 years thereafter, the contracting parties will not actively solicit or attempt to solicit, directly or indirectly, any employee of the other contracting party.
14 Reference
14.1 Join GmbH is entitled, under consideration of data protection and secrecy, to name the services on which the respective individual contract is based as a reference project while naming the customer.
15 Transfer of rights and obligations
15.1 The client may only transfer rights and obligations – in particular assignments and pledges – from the respective individual contract to third parties with the prior written consent of Join GmbH.
16 Applicable law, place of jurisdiction
16.1 The contractual relationship is subject to German law. Insofar as the UN Convention on Contracts for the International Sale of Goods, which has been incorporated into German law, would be applicable to foreign customers, this is excluded.
16.2 The place of jurisdiction for all disputes arising from or in connection with the respective contractual relationship is the court responsible for the registered office of Join GmbH.