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General terms and conditions

Part 01 - General Terms and Conditions

PART 01 – GENERAL TERMS AND CONDITIONS

1 Scope

These General Terms and Conditions Part 01 shall define in connection with the additional terms and conditions for

 -     Products (Part 02)

 -     Standard Software (Part 03)

 -     Software Maintenance (Part 04)

 -     Software Support (Part 05)

 -     Services (Part 06)

 -     Works (Part 07)

 -     IT Services (Part 08) and/ or

 -     Partner (Part 09)

as mentioned in the relevant order confirmation (hereinafter collectively “GTC”) the legal framework conditions for any services as more precisely defined in the relevant order confirmation (hereinafter “Services”) performed by Allgeier Enterprise Services AG, Wehrlestrasse 12, 86179 Munich, Germany and all of its affiliated companies according to Art. 15 et. seq. German Stock Corporation Act (hereinafter collectively “Allgeier”) to any corporation, legal entity or special fund under public law (hereinafter “Customer”).

2 Order Confirmation, Other Terms, Performance of Services

2.1 The order confirmation shall contain the precise Service description as well as the remuneration. Unless stated otherwise Allgeier shall be bound by its respective offers for a period of four (4) weeks. Offers by Customer may be accepted by Allgeier within a period of four (4) weeks as well. In case of doubt the Service shall be exclusively defined by Allgeier’s offer or Allgeier‘s acceptance thereof.

2.2 Services shall exclusively be provided according to these GTC. Any other terms (e.g. deviations, side agreements, or Customer’s general terms and conditions) shall only be valid if accepted by Allgeier in written form. This shall also apply if Allgeier performs Services without explicitly objecting to such other terms.

2.3 Allgeier may perform Services itself or assign them to affiliates (Art. 15 et seq. German Stock Corporation Act) or subcontractors.

3 Prices, Default of Payment, Offset

3.1 All prices shall be exclusive of applicable VAT.

3.2 Customer shall immediately but at the latest within four (4) weeks after receipt, assert objections to invoices. Without objection within this time period invoices shall be deemed approved.

3.3 For payments not received on time by Allgeier, Customer shall pay liquidated damages in the amount of zero point five (0.5%) per cent per commenced week of the amount in default but at a maximum five (5%) per cent of the amount in default. Should Allgeier claim additional damages these liquidated damages shall be deducted thereof. Customer shall have the right to prove lower actual damages.

3.4 Should circumstances exist which indicate that Customer’s financial situation has deteriorated significantly Allgeier shall have the right to demand advance payment or provision of security. Allgeier may refuse performance of further Services until advance payment has been made or security has been provided. Should Customer not comply with Allgeier’s demand within a reasonable period of time to be set by Allgeier, Allgeier may rescind or terminate the contract immediately for cause and/or claim damages.

3.5 Customer may only set off payments with counterclaims that are undisputed, acknowledged by Allgeier or have been legally confirmed by court.

4 Freedom of Third Party’s Rights

4.1 Each party shall warrant to the best of its knowledge that the materials created or provided are free of any copyright, intellectual property right or any other right of a third party (defect of title) which may restrict or preclude the contractual use.

4.2 Should the contractual use be affected by any third party’s intellectual property right the party which created or provided the respective materials shall at its own discretion either modify the materials in a way that they no longer are infringing but still comply with the contractual specifications or obtain appropriate authorization for the contractual use of the materials without additional costs to the other Party.

4.3 The other party shall have the right to participate in potential legal proceedings of the first party regarding the infringed intellectual property rights with a third party. Each party shall bear its own costs for such legal proceedings.

4.4 Precondition for this liability for defects in title shall be that the other party immediately notifies the first party of any such claim by a third party in writing and does not acknowledge any alleged infringement.

5 Limitation of Liability

5.1 In case of slight negligence Allgeier shall only be liable if an essential contractual obligation has been breached (i.e. an obligation the fulfilment of which enables the proper performance of the contract and on the compliance of which Customer regularly relies and may rely). In such cases the liability shall be limited to the foreseeable damage typical for this type of contract.

5.2 This liability of Allgeier shall in addition be limited to the maximum amount of remuneration paid under the respective order confirmation per calendar year.

5.3 In case of data loss Allgeier’s liability shall be limited to such damages that would have occurred if a reasonable data backup had been performed by Customer.

5.4 Customer’s further claims for damages or reimbursement of expenses shall be excluded. This shall, in particular, apply to liability without negligence.

5.5 The limitation period for claims for liability of Allgeier shall be twelve (12) months.

5.6 To the extent Allgeier’s liability is excluded or limited above this shall also apply for personal liability of Allgeier’s workers, employees, representatives, and agents.

5.7 The above mentioned limitation of liability shall not apply to wilful misconduct, gross negligence, damages to life, body or health, in case of a guarantee by Allgeier as well as in other cases in which the applicable law does not allow a limitation of liability (e.g. German Product Liability Law).

5.8 Allgeier may claim contributory negligence.

6 Confidentiality

6.1 Any and all information disclosed between the parties shall be treated as strictly confidential and must not be disseminated or disclosed without the written consent of the respective other party. The parties shall only use such information for fulfilling their contractual obligations.

6.2 This duty of confidentiality shall not apply to information which demonstrably (i) is or becomes general knowledge through not act or omission of the other party, (ii) was provided to the other party by a third party without duty to confidentiality, (iii) was developed by the other party independently of the disclosed information, or (iv) must be disclosed due to statutory provisions or official orders.

6.3 If and to the extent requested by the party disclosing information, the other party shall after the end of Service performance return such information unless the other party can demonstrate a justified interest in such documents.

7 Data Protection

7.1 If and to the extent Customer engages Allgeier to process personal data, Allgeier shall collect, process, and use such data exclusively as a commissioned data processor according to Art. 11 German Federal Data Protection Act as instructed and for Customer’s purposes.

7.2 If required Customer and Allgeier shall conclude a corresponding commissioned data processing agreement.

7.3 Customer and Allgeier shall ensure that their employees are required in writing to maintain data secrecy in accordance with Art. 5 German Federal Data Protection Act and that they have been properly instructed in that respect. This shall apply accordingly for employees of subcontractors.

8 Non-Solicitation

Customer and Allgeier shall undertake for the duration of the business relationship and a time period of twelve (12) months thereafter not to actively neither direct nor indirect solicit any employees of the other party or the other party’s affiliates (Art. 15 et seq. German Stock Corporation Act) in particular to the extent the business relationship is based a special foundation of trust, the performance of Services requires investment in the involved employees and/or the employees build up an experience-based advantage by their involvement.

9 Miscellaneous

9.1 There are no oral supplementary agreements. Any modification, amendment, termination/ cancellation, or settlement of an agreement based on these GTC shall require written form.

9.2 This agreement shall be binding upon the parties, their successors, and assignees. Neither party may assign rights or obligations under this agreement without the prior written consent of the other party.

9.3 Unless explicitly defined otherwise in the order confirmation, no stipulation in these GTC shall be interpreted in a way to imply that one party may represent the other party, the parties become affiliated companies or part of a joint venture for any purpose whatsoever or that an employment relationship, a consortium, a joint company or a trust relationship between the parties is formed.

9.4 These GTC and any contractual or non-contractual claims shall be construed under the laws of the Federal Republic of Germany excluding the conflict of law’s provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).

9.5 Exclusive place of jurisdiction for all disputes shall be Frankfurt am Main.