Note: This contract has been translated for your convenience by google translate. The legally binding version is currently the german one. We are reworking our contract framework and will update this page with a binding english verion soon.
Terms and conditions for advisory and support services
1. Validity of the terms and conditions for services
1.1. These terms and conditions only apply to contracts with customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB). They include all current and future contracts between the company and the customer, which contain a service provided by the company. This is the case when advice or support of any kind is used, with the customer being responsible for the results. In particular, success is not owed if no work to be created is commissioned by the customer when the contract is concluded, but advice or support in the use of software programs is called up.
1.2. General terms and conditions of the customer are expressly not part of the contract, even if they are not expressly contradicted by the company.
2. Conclusion of contract, provision of services and proof of performance
2.1. All offers are non-binding. A contract with the company is concluded when the company confirms the customer’s order in writing or, in the case of an order placed by the customer by telephone, through the company’s immediate telephone service.
2.2. The company’s main contractual obligation is to provide the agreed service in the agreed period and at the agreed location. The company provides the service according to the current state of the art and through personnel who are qualified to provide the agreed service. The customer has no right to the provision of services by a specific employee of the company. While the order is being processed, the company can replace a deployed person with another. Any training period that may be required is at the expense of the company.
The customer can only request the exchange of personnel if there is an important reason that makes the continuation of the service acceptance unreasonable. The costs for the exchange are then borne by the company.
2.3. If, when the order is placed, it is not yet clear to what extent the service will be performed, or if the agreed service period is extended after the contract has been concluded, evidence must be prepared for the service provided or for the service provided beyond the agreed service period. For proof, it is sufficient that the performance records are confirmed by the customer or his employees or his vicarious agents who are present by signing their name. In the case of a service that is not provided by the customer himself, but is provided by telephone, via the Internet or in another form that is locally separated from the customer, the performance time record with the additional specification of the service content and the company employee is sufficient for proof.
3. Usage and property rights
3.1 The company grants the customer the non-exclusive and irrevocable right to use the embodied service results, which can only be transferred with the consent of the company, provided that the contractual purpose and area of application are preserved by the customer. This also applies to interim results, documents and aids. The company may use the results for other purposes, provided that confidentiality obligations are not violated.
3.2 Insofar as work results of any kind (e.g. copyrights, patents, utility models, etc.) capable of being protected by intellectual property rights arise in the context of the advisory or support service, the company is entitled to them if they are based solely on the activities of the company’s employees. In this case, the company grants the customer a right of use that is not to be remunerated separately, is unlimited in time, is not exclusive and is only transferable with the consent of the company.
4. Obligations to cooperate
The customer is obliged to support the company in the provision of the contractual services in an appropriate manner and with suitable means. The customer has to create the necessary prerequisites (hardware, software and workstation) for the provision of the service. Delays due to the lack of or delayed cooperation are not at the expense of the company. The customer is responsible for the proper data backup.
5. Remuneration and terms of payment
5.1. The remuneration for consulting and support services is based on the time spent at the hourly rates announced by us orally or in text form before or when the contract is concluded, in accordance with the currently valid list of costs. Material costs will be invoiced separately. Waiting times of the company staff for which the customer is responsible are reimbursed like performance times, but the customer is free to prove that the company did not incur any costs as a result of the waiting time. Travel times and travel costs are invoiced in accordance with the currently valid list of costs.
5.2. Services that are carried out immediately and / or once are billed immediately and without further proof of performance. In all other cases, the company issues invoices on a monthly basis. The invoices will be sent together with a list of the service times and service content, unless the service time to be billed was already agreed when the contract was concluded. All company invoices are due for payment immediately upon receipt. Any information on the invoice of a payment term is non-binding and does not postpone the due date.
5.3. If the customer objects to the invoicing within 14 days, a copy of the performance records will be sent to him for review. Thereafter, the performance records are considered approved if the customer does not raise any further objections in writing within one week of receipt of the performance records.
5.4. The customer is in default of payment no later than 30 days after receipt of the invoice, without the need for a reminder from the company.
6. Failure to perform and termination
6.1. If the service is not provided properly or incorrectly and the company is responsible for this, the service will be carried out within a reasonable period without additional costs for the customer. The prerequisite for this, however, is that the customer reports the error immediately, at the latest within 10 working days after becoming aware of the disruption in performance. If the proper service does not succeed in essential parts for reasons for which the company is responsible and the customer has expressly set the company a reasonable grace period for this, the customer can terminate the contract with immediate effect after the deadline has expired without success.
6.2. The right to extraordinary termination according to § 626 BGB remains unaffected.
6.3. The company retains the right to remuneration for the services rendered on the basis of the contract until the termination takes effect. The remuneration only applies to those parts of the service for which the customer can prove within 4 weeks of receipt of the notice of termination that these parts of the service are not usable and of no interest to him.
7.1. In cases of injury to life, body or health, as well as if we or our vicarious agents or representatives have deliberately violated an obligation, we are liable without limitation in accordance with the statutory provisions.
7.2. In all other cases, our liability is limited to the foreseeable damage typical for the contract. Insofar as we, our vicarious agents or representatives can only be accused of slightly negligent breach of duty, we are only liable for the foreseeable damage typical of the contract in the event of a breach of essential contractual obligations. In the event of a slightly negligent breach of insignificant contractual obligations, liability is excluded.
7.3. Liability for damage caused by the service to other legal interests of the customer, e.g. damage to other things, is completely excluded, unless section 7.1 applies. or we, our vicarious agents or representatives can be accused of gross negligence.
7.4. In the case of a claim against the company due to a breach of duty according to paragraphs 7.1 to 7.3, contributory negligence on the part of the customer must be reasonably taken into account, in particular in the case of inadequate error messages or insufficient data backup. Inadequate data backup occurs in particular if the customer has failed to take precautions against external influences, in particular against computer viruses and other phenomena that can endanger individual data or an entire database, through appropriate, state-of-the-art security measures.
7.5. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
The company and the customer mutually undertake to keep all business and trade secrets of the other party secret for an unlimited period and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information that the other contractual partner receives as a result of the business relationship may only be used within the framework of the respective contractual purpose. A breach of the confidentiality obligations entitles the other contractual partner to terminate the contract without notice. (Claims for damages?)
9. Place of fulfillment and jurisdiction
If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our company headquarters (main branch in Burghausen) are agreed as the place of performance and jurisdiction for all disputes arising from the contractual relationship. We are entitled to sue at the customer’s headquarters.
10.1. German law applies exclusively to the exclusion of the UN sales law.
10.2. Should individual provisions of these general terms and conditions be or become ineffective in whole or in part, this shall not affect the validity of the remaining provisions.
10.3. Ancillary agreements and subsequent additions to the contract can only be made with the management or a person authorized in writing.
New Solutions GmbH
Business Center Burghausen
Marktler Strasse 61
84489 Burghausen, Germany
District court: Altötting, Germany
District court: Traunstein, Germany
Register court: Traunstein, Germany