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General terms and conditions for the service contract

General Terms and Conditions (GTC) for the provision of services on a service contract basis in the IT area - business customers

Conditions

General terms and conditions of the company IBAB-IT dienstleistungen GmbH, Löhstr. 26A, 41747 Viersen, hereinafter referred to as the provider.

01

General
  • The provider provides all services exclusively on the basis of these General Terms and Conditions (GTC). The general terms and conditions of the customer do not apply, even if the provider has not expressly objected.
  • These General Terms and Conditions shall also apply if the provider carries out the service for the customer without reservation in the knowledge of conflicting or deviating customer conditions. In these cases, the acceptance of the services by the customer shall be deemed to be acceptance of these General Terms and Conditions, while at the same time waiving the validity of their own General Terms and Conditions, which is hereby accepted in advance.

02

Offers and Prices
  • Offers are always non-binding. A contract is only concluded when the provider confirms the order in writing. If the service is provided by the provider without the customer having previously received an order confirmation, the contract comes into effect when the service begins to be performed.
  • The service is provided at the prices and special conditions of the respective service contract, possibly together with a service certificate. The prices stated therein are binding.
  • Unless otherwise agreed in individual cases, the prices are “net” plus the statutory sales tax of currently 19%.

03

Dates and deadlines
  • Dates and deadlines are binding if they have been agreed as binding in writing by the provider and the customer in individual cases. Unless otherwise agreed in individual cases, the performance period begins with the conclusion of the contract or the dispatch of the order confirmation. The agreement of a fixed service date is subject to the proviso that the provider for his part receives the necessary services from his respective sub-suppliers in good time and in accordance with the contract.
  • If non-compliance with a specific service time is due to events for which the provider is not responsible (including strikes or lockouts), the service dates are postponed by the duration of the disruption, including an appropriate start-up phase.
  • If the provider is in arrears with the provision of services in whole or in part, the customer’s compensation for damages and expenses due to the delay is limited to 0.5% of the price for the part of the service that cannot be used due to the delay for each completed week . Liability for default is limited to 5% of the total price of the respective order. This does not apply if the delay is due to gross negligence or intent on the part of the provider.
  •  In the event of a delay in performance, the customer only has a right of withdrawal within the framework of the statutory provisions if the provider is responsible for the delay. If the customer is entitled to claim damages or reimbursement of expenses instead of the service because of the delay, he is entitled to demand 1% of the price for the part of the service that cannot be used due to the delay for each completed week of the delay a maximum of 10% of the total price of the respective order. Section 3.3 sentence 3 applies accordingly.

04

Service/subject of the contract
  • The content/quality and scope of the services owed by the provider result from the respective service contract, if applicable together with the service certificate, unless otherwise agreed in individual cases. Contractual services are not part of the contract. The customer bears the responsibility for the project and its success. The provider provides the service according to the principles of proper professional practice.
  • The subject matter of the contract can consist of a one-off service, which can also be provided in parts, or can be long-term.

05

Performance of the Service
  • Unless otherwise agreed in individual cases, the place of performance is the provider’s registered office.
  • The provider’s employees involved in the performance of the service are selected by the provider. The customer has no right to the provision of services by specific employees of the provider. When making the selection, the provider will adequately consider the interests of the customer. The provider provides the services through personnel who are qualified to provide the agreed services. If a person used by the provider to fulfill the contract is replaced by another and training is required, this is at the expense of the provider.
  • The provider determines – in accordance with the subject matter of the contract – the way in which the service is provided.
  • The customer is not authorized to give instructions to the provider or to the employees of the provider involved in the provision of services, with the exception of what has been agreed within the framework of Section 12.3.
  • If the provider has to present the results of the service in writing, only the written representation is authoritative.

06

Customer Obligations
  • The customer shall designate a competent contact person to the provider who can make binding decisions for the customer during the execution of the contract. This must be available for the exchange of necessary information and to participate in the decisions necessary for the execution of the contract. Necessary decisions of the customer are to be brought about immediately by the contact person and are to be documented in writing by the parties immediately afterwards.
  • The customer shall ensure that the provider has the necessary documents, information, etc. for the provision of the service, insofar as these are not owed by the provider, are available in full, correctly, on time and free of charge. In addition, the customer ensures that they are updated. The provider may assume that these documents, information, etc. are complete and correct, unless he recognizes or must recognize the contrary.
  • The customer is obliged to support the provider as far as necessary and to create all the necessary conditions for the proper execution of the assignment in his operational sphere. In addition, the customer shall provide sufficient workplaces and work equipment at the request of the provider.
  • Unless otherwise agreed, the customer will keep all documents, information, etc. provided by the provider in such a way that they can be reconstructed in the event of damage or loss.

07

Use Rights
  • Unless otherwise agreed, he grants the customer the non-exclusive and non-transferable right to the service results that the provider has provided under the contract and handed over to the customer, to use them for his own internal purposes within the framework of the contractually stipulated Purpose to use in the long run. These rights include the agreed interim results, training documents and tools. All other rights remain with the provider.
  • The Provider can revoke the Customer’s right of use if the Customer violates restrictions on use or other regulations to protect against unauthorized use in a significant manner. The revocation takes place by means of a written declaration of revocation; Section 12.1 sentence 3 applies accordingly. The provider must set the customer a grace period to remedy the situation before the revocation. In the event of a recurrence and in special circumstances that justify immediate revocation after weighing up the interests of both parties, the provider can also express the revocation without setting a deadline. The customer must confirm the cessation of use to the provider in writing within seven calendar days after receipt of the declaration of revocation.

08

Term
  • If the contract is concluded for an indefinite period, it can be terminated in writing with a notice period of 3 months to the end of a calendar quarter. This termination is possible for the first time at the end of the calendar quarter that follows the first calendar quarter after the conclusion of the contract. An agreed minimum term remains unaffected by this right of termination. This does not apply in each case if something different has been agreed.
  • Withdrawal from the contract is excluded. However, the contract can be terminated by both the provider and the customer without notice for important reasons.
  • Notices of termination are only effective in writing.

09

Compensation, Payments, Offsetting and Retention
  • Unless otherwise agreed in individual cases, payments are generally due within 7 calendar days of the invoice date without any deductions.
  • A payment term granted to the customer requires a sufficiently available credit limit for each individual order. If the respective order exceeds the available credit limit, the provider is entitled to provide this and other orders only against advance payment or security in the form of a performance bond from a credit institution or credit insurer approved in the European Union. The same applies if the provider becomes aware of circumstances after the order confirmation that justify doubts about the customer’s creditworthiness.
  • If the customer does not settle a claim on the agreed due date in whole or in part, the provider is entitled to revoke discount agreements made and agreements on payment terms for all outstanding claims at this point in time and to make them due immediately. The provider is also entitled to provide further services only against advance payment or security in the form of a performance guarantee from a credit institution or credit insurer approved in the European Union.
  • A payment is only deemed to have been made when it has been credited to one of the Provider’s bank accounts.
  • The provider is entitled to charge interest of 5% on the due date. In the event of default, the provider is entitled to demand interest of 8 percentage points above the base interest rate. The right of the provider to claim higher damages remains unaffected.
  • The customer can only offset undisputed or legally established claims or exercise a right of retention. The exercise of a right of retention by the customer with a counter-right that is not based on a right from the contract on which these General Terms and Conditions are based is excluded.

10

Performance Disruptions
  • If the service is not provided in accordance with the contract and the provider is responsible for this (malfunction), he is obliged to provide the service in whole or in part within a reasonable period of time without additional costs for the customer, unless this is only with disproportionate effort possible. Unless otherwise agreed, this obligation of the provider only applies if the customer reports the disruption to the service in writing and without delay, but no later than within two weeks after becoming aware of the non-contractual provision of services. To this end, the customer must appropriately observe the service provision by the provider.
  • If the provider is responsible for a non-contractual service and is unable to provide the contractual service within the grace period set by the customer for reasons for which he is responsible, the customer is entitled to terminate the contract without notice. The right to extraordinary termination for good cause remains unaffected.
  • In the event of termination in accordance with Clause 10.2, the Provider is entitled to remuneration for the services rendered up until the termination took effect. The claim does not apply to such services in relation to which the customer demonstrates within 2 weeks after receipt of the notice of termination that they cannot be used and are of no interest to him.
  • If the provider is not responsible for a non-contractual service, he will offer the customer the contractual provision within the scope of his possibilities. If the customer accepts this offer, the provider can claim the associated expenses and proven costs.
  • The statute of limitations for customer claims due to performance disruptions is one year from the start of the statutory statute of limitations. The statutory deadlines remain unaffected in the event of an intentional or grossly negligent breach of duty by the provider, in particular by his legal representatives or vicarious agents, in the event of fraudulent intent and in cases of injury to life, limb or health.
  • Section 11 applies to any claims for expenses and damages that go beyond Sections 10.1 – 10.3 above.

11

Compensation, Payments, Offsetting and Retention
  • The provider is liable for damages
    • for damage caused intentionally or through gross negligence by him or his legal representatives or vicarious agents,
    • according to the Product Liability Act and
    • for damage resulting from injury to life, limb or health for which the provider, his legal representatives or vicarious agents are responsible.
  • The provider is liable for slight negligence insofar as he or his legal representatives or vicarious agents have violated an essential contractual obligation (so-called cardinal obligation), the fulfillment of which makes the proper execution of the contract possible in the first place or the violation of which endangers the achievement of the purpose of the contract and compliance with it the customer can regularly trust. Otherwise, liability for slight negligence is excluded. Insofar as the provider is liable for slight negligence, liability for property damage and financial loss is limited to the foreseeable damage that is typical for the contract. Liability for other remote consequential damages is excluded. For a single case of damage, liability is limited to the contract value.
  • Clause 10.5 applies accordingly to the statute of limitations.
  • In the event of loss of data, the provider is only liable for the effort required to restore the data with proper data backup by the customer. In the event of slight negligence on the part of the provider, this liability only applies if the customer has carried out a proper data backup immediately before the measure leading to the data loss.
  • Clauses 11.1 – 11.3 apply accordingly to claims for reimbursement of expenses and other liability claims by the customer against the provider.

12

Miscellaneous
  • Changes and additions to all contracts concluded between the parties should only be agreed in writing. Verbal agreements are only valid if they are confirmed in writing by the provider within seven days. A fax or an e-mail satisfies the written form requirement.
  • The provider and the customer are obliged to maintain secrecy about business and trade secrets as well as other information designated as confidential that becomes known in connection with their contractual relationship or the resulting contractual relationship. Such information may only be passed on to persons who are not involved in the conclusion, implementation or processing of the contractual relationship with the written consent of the contractual partner. Unless otherwise agreed, this obligation ends five years after the information in question becomes known, but not before the end of a contractual relationship between the provider and the customer.
  • If the provider can access personal data that is stored on the customer’s systems, he will only work as an order data processor (§ 11 Para. 5 BDSG) and will only process and use this data for the execution of the contract. The provider will observe the legal requirements for order data processing and the customer’s instructions (e.g. to comply with deletion and blocking obligations) for handling this data. The customer bears any adverse consequences of such instructions for the execution of the contract. Details for the handling of personal data will be agreed in writing by the contractual partners before the provider has access to the extent necessary in accordance with Section 11 (2) BDSG or other legal norms.
  • If the provider is not responsible for a non-contractual service, he will offer the customer the contractual provision within the scope of his possibilities. If the customer accepts this offer, the provider can claim the associated expenses and proven costs.
  • The provider and the customer are aware that electronic and unencrypted communication (e.g. by e-mail) involves security risks. With this type of communication, neither the provider nor the customer will assert claims based on the lack of encryption, unless encryption has been agreed beforehand.
  • All contractual relationships between the parties are exclusively subject to the law of the Federal Republic of Germany.

13

Place of Performance and Jurisdiction
  • The place of performance for all obligations arising from the contractual relationships between the parties is the seat of the provider.
  • The place of jurisdiction for all legal disputes arising from the contractual relationships between the parties and for disputes relating to the creation and effectiveness of these contractual relationships with merchants, a legal entity under public law or a special fund under public law is the registered office of the provider. However, the provider is entitled to sue the customer at his registered office.
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