§ 1 Scope of application 1) The following General Terms and Conditions (GTC) apply to all contracts concluded in commercial transactions between one of the companies - Trans4mation IT GmbH (Information Technology), Glashütter Str. 55, 01309 Dresden, Germany - Trans4mation PM GmbH & Co. KG (Project Management), Glashütter Str. 55, 01309 Dresden - Trans4mation BS GmbH (Business Solutions), Carl-Zeiss-Ring 9, 85737 Ismaning/Munich - Trans4mation AC GmbH (Accountant Consulting), Glashütter Str. 55, 01309 Dresden - Trans4mation SP GmbH (Service Professionals), Glashütter Str. 55, 01309 Dresden - Trans4mation Swiss AG, Churerstrasse 35, CH-9470 Buchs SG (hereinafter each referred to as "our company") and entrepreneurs, legal entities under public law or special funds under public law (hereinafter referred to as "customer"). 2) Insofar as legal transactions of a related nature are concerned, the GTC shall also apply to follow-up transactions between already existing contractual partners. This shall also apply if the customer no longer takes note of or can take note of the GTC in subsequent transactions or if these are no longer expressly referred to in subsequent transactions. 3) Any terms and conditions of business of the customer that conflict with or deviate from these GTC are hereby expressly rejected and shall not form part of the contract. Insofar as a customer expressly desires the inclusion of its own terms and conditions, this shall be agreed separately in writing on an individual basis. 4) The GTC shall apply in the version valid at the time. This concerns the version as they are posted on the Internet at the time of the conclusion of the contract (in the case of subsequent contracts at the time of the subsequent contract) at the Internet address http://www.trans4mation.de. By concluding the respective contract, the customer assures that he has taken note of these GTC and that they have become an integral part of the contract.
§ 2 Conclusion of contract 1) The presentations of our company (e.g. presentations on the Internet or in general documents) are not offers. They are of a purely informative nature and do not represent any assurances. 2) Our offers contained in sales media as well as individual verbal or written offers are subject to change, i.e. are only to be understood as a non-binding invitation to submit an order/offer. A contract shall only be concluded upon its confirmation by our company in written or electronic form, unless otherwise agreed. If the content of the confirmation differs from that of the order/offer, the contract shall be concluded on the basis of the confirmation if the customer declares acceptance in writing or electronically within one week of receipt. A contract is also concluded if the customer makes use of our services on the basis of an order/offer. 3) The customer is obliged to check confirmations from our company both for obvious spelling mistakes and calculation errors as well as for discrepancies between the order, confirmation and delivery. The customer is further obliged to notify our company of such discrepancies without delay.
§ 3 Service period 1) All dates and deadlines stated for our deliveries and services are non-binding unless expressly agreed otherwise. Failure to cooperate and requests for changes on the part of the customer shall lead to a reasonable postponement of the dates or extension of the deadlines. 2) Insofar as a cause for which our company is not responsible (including power failure, failure of data transmission connections, strike or lawful lockout) impairs compliance with the deadline, our company shall be released from the obligation to deliver and perform for the duration of its existence. Deadlines and dates shall be extended to a reasonable extent as a result. This shall also apply to deliveries or services on the part of our suppliers for which we are not responsible and which are not punctual or proper. 3) If the expenditure increases due to delays in the customer's area of responsibility (including acts of cooperation by the customer), the customer shall be responsible for this. Our company may demand compensation for its additional expenditure. 4) Our company is entitled to partial deliveries and services.
§ 4 Shipment and transfer of risk In the case of shipment upon performance of the service, the risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer upon handover, in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, carrier or other person designated to carry out the shipment. Immediately after arrival, the customer shall inspect the external condition of the delivery and the performance, complain about any transport damage to the transport person, secure the evidence for this and inform our company immediately about this circumstance.
§ 5 Compensation and accounting 1) Remuneration shall be based on the prices agreed in the contractual documents. Our company is entitled to demand down payments to a reasonable extent (§ 315 BGB). Instalment payments as well as final payments are due 14 days after receipt of invoice. 2) Invoices may be transmitted either on paper or electronically, at the discretion of our company. The customer agrees to the electronic transmission of invoices, but has no right to do so. Our company is entitled to change the method of transmission at any time at its own discretion. If the customer expressly requests (at least in text form) transmission on paper, the invoice shall then be sent by post, insofar as this is possible for our company with a technically and financially reasonable effort. 3) The customer undertakes to create the technical conditions to enable him to retrieve the invoice as agreed. The customer shall immediately notify any change in the address designated for receipt of the invoice. In the event of culpably omitted or incorrect notification of the address or its change, the customer shall reimburse the damage caused by the address determination and any delay. 4) The electronic invoice shall be deemed received upon receipt of the e-mail to which the electronic invoice is attached. The same shall apply in the case of delivery by comparable electronic means of transmission (in particular uploading/uploading on an Internet portal). Any technical equipment of the customer, such as filter programmes or firewalls, as well as automated electronic response letters to our company (in particular absence notes) shall not prevent valid delivery.
§ 6 Zurückbehaltung und Aufrechnung 1) If the customer defaults on payment of the remuneration, our company shall be entitled to assert the right of retention on all services to be provided in the future. This also includes the provision of services from other contractual relationships with the customer. 2) The exercise of a right of retention by the customer is excluded insofar as the claims on which the right of retention is based originate from another contractual relationship (another individual order is sufficient). If the customer's counterclaims leading to retention originate from the same contractual relationship, the customer is obliged to notify our company of the exercise of the right of retention at least one month in advance in writing or in text form; only in this case can the customer's right of retention be effectively exercised. 3) The customer's right to offset counterclaims against claims of our company is limited to undisputed or legally established counterclaims of the customer.
§ 7 Warranty The warranty law according to the German Civil Code applies to the present contract. The customer shall notify our company of any defects in writing and in as much detail as possible. In the event of a defective delivery, our company shall be entitled, at its own discretion, either to remedy the defect or to supply a replacement. Only if a rectification or removal of the defect for one and the same defect fails for the second time or if our company refuses to rectify the defect or to deliver a replacement shall the customer be entitled to assert the warranty claims rescission or reduction at his discretion. Our company shall have a reasonable period of time to remedy the defect.
§ 8 Liability 1) Our company shall be liable to the customer without limitation for damage caused by us or our employees intentionally or through gross negligence and for guarantees assumed. Likewise, we are liable for damages caused at least by negligence, insofar as these result in injuries to the life, body or health of people. 2) We shall not be liable for slight negligence. Something else only applies if we have violated an essential contractual obligation (cardinal obligation) or a contract-typically foreseeable damage has materialised, or if the customer is unreasonably disadvantaged by the exclusion of liability. In these cases, the amount of damages shall be limited to the typically foreseeable damage. Material contractual obligations are those obligations the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the contractual objective and the observance of which the contractual partner may regularly rely on. 3) In the event of data loss, we shall only be liable for the expenditure required for the reconstruction of the data if the customer has properly backed up the data. 4) No liability shall be assumed for indirect or consequential damages, including damages for loss of profit, business interruption, loss of business information or any other pecuniary loss, arising out of the use or inability to use a software product. 5) For a single case of damage, with the exception of the provisions under § 8 para. 1), liability is limited to the order value.
§ 9 Written form / choice of law / place of jurisdiction 1) Amendments and supplements to the contract must be made in writing. This also applies to a waiver of the written form requirement. Verbal collateral agreements have not been made. 2) All legal relationships arising from this contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods, to the extent permitted by law. 3) To the extent permitted by law, Dresden shall be the place of jurisdiction for all disputes arising from contractual relationships between the customer and our company.
§ 10 Settlement of disputes before a consumer arbitration board 1) In accordance with § 36 of the Consumer Dispute Settlement Act (VSBG), we would like to point out that our company does not participate in dispute settlement proceedings before a consumer arbitration board and is not obliged to do so.
Insofar as the customer commissions our company with the creation of an Internet presentation or services of programming or software development, the following regulations shall apply with priority. § 1 Scope The offer and the performance specification of our company, as well as the negotiation protocols kept by our company, are integral parts of the contract. Insofar as a specification sheet is drawn up, this shall also be part of the contract. The special scope of services of our company only includes the technical and graphic design / implementation, but not the development and implementation of marketing concepts as well as pursued economic goals, etc., unless otherwise stated in the service description.
§ 2 Obligations of our client The customer is obliged to provide us with the editorial content and specifications required for our services in a file format specified by us in good time for the conclusion of the contract. This includes, in particular, all necessary image materials, specifications for the graphic design and content which are to be incorporated, etc. Furthermore, the customer is obliged to provide the information and documents necessary for the programming and content to be provided from his operational processes and other circumstances in good time so that these can be incorporated into the programming.
§ 3 Stages of creation 1) Our company undertakes first of all to create a preliminary version which at least basically comprises the processes and representations of the final product. After creation and presentation of the preliminary version (delivery in graphic, non-digital representation is sufficient), the customer is obliged to notify us in writing within one week whether changes and / or additions are desired. The customer's notification must contain all desired changes / additions - our company does not need to take into account changes or additions made later. If no notification is received from the customer within one week of receipt of the preliminary version, the preliminary version shall be deemed to be the basis of the pilot agreed and accepted. 2) On the basis of the preliminary version, our company shall prepare a pilot version. The pilot version shall comply with the design of the preliminary version and the technical and content specifications of the service description. After delivery of the pilot version, our customer is obliged to notify us in writing within one week whether changes and / or additions are desired. The notification must contain all desired changes / additions - changes / additions made later do not have to be taken into account. If no notification is made by the customer, the pilot version shall be deemed to have been agreed and accepted as the basis for completion. Within the scope of its capacities and technical possibilities, our company will also take into account changes and / or additions which were not originally part of the contract but which are requested by the customer. However, our company shall be entitled to additional remuneration for this - to be agreed in advance. 3) After delivery and acceptance of the pilot version, our company shall create the final programming (if necessary, taking into account the customer's change requests). The final version shall comply with the design of the pilot version and the technical and content specifications of the performance specification. After completion of the final version, our company shall notify the customer of its completion. The completed programming shall be tested together with the customer, if the customer so wishes. Acceptance takes place after a successful test run. If there are no complaints, the acceptance is declared by the customer. If the customer does not request a test run within a period of 2 weeks after sending / notification of completion, the service shall be deemed to have been accepted. 4) Our company will take into account suggestions and proposals for changes made by the customer during the creation of the preliminary version, the pilot version and the final completion in each case, unless this would no longer be possible for reasons of workflow. The customer would be informed of this by our company. Insofar as the customer's suggestions for changes contain deviations in content compared to the respective previous production stage or the agreements made, which would lead to increased costs or increased effort, our company shall point this out to the customer. In this case, our company may demand corresponding additional costs on the basis of the prices agreed in the specification of services, insofar as the customer does not refrain from the proposed changes. In the same way, our company must point out any delays in completion resulting from consideration of the proposed changes.
§ 4 Granting of rights Our company hereby grants the customer the exclusive rights of use, unlimited in terms of time, place and content, for all copyrights, ancillary copyrights and other intellectual property rights existing in the programming, insofar as it is legally able to do so.
Insofar as the transfer of licences has been agreed between the customer and our company, the following provisions shall apply with priority. § 1 Subject of the contract Our company, as the owner and authorised disposer, holds the software right to the subject matter of the contract, which is protected in accordance with §§ 69 a ff. of the German Copyright Act (UrhG). The area of application is the territory of the Federal Republic of Germany.
§ 2 License 1) Unless otherwise agreed in the contract with the customer or unless otherwise provided for in the following provisions, the customer shall receive a non-exclusive and non-transferable perpetual licence for the use of the programmes covered by the contract. The customer is obliged to oblige each authorised end user who receives access to a copy of the software not to copy the software and to use it only to the contractually agreed permissible extent. An authorised end user is any person who is involved in the customer's business as a full-time or part-time employee (including management). In the case of customers who also use the software for training purposes, their customers contractually bound for training purposes are also authorised end users. 2) The customer is entitled to make two copies of the respective software for backup and archiving purposes. Further copies are not permitted. The customer is not entitled to make the software available to third parties. The customer is prohibited from generating the source code of the software delivered within the scope of this contract or having it generated by third parties, as well as from disclosing it to third parties or copying the source code. The customer is not entitled to reverse engineer or decompile the software unless this is done with the prior written consent of our company. 3) The customer shall receive all documents and items for the execution of this contract. Our company reserves the ownership as well as the proprietorship of intellectual property rights of any kind as well as of know-how. Any transfer to third parties as well as any use not in accordance with the contract is not permitted. The customer shall receive a description of the software in its technical details as well as possibilities of use and development - at the discretion of our company in PDF format, as online help or as documentation. The computer programme is delivered on a data carrier (diskette/CDROM/ DVD). 4) Upon expiry of the licence agreement, the contracting parties shall return to each other all documents and items which they have received from the contracting party within the scope of this agreement. This shall not apply insofar as there is a statutory obligation to retain such documents. The customer/licensee shall delete all copies.
§ 3 Training / Maintenance Unless otherwise stipulated in the contract, training is not owed. This applies equally to maintenance.
Insofar as services for the delivery of hardware and / or software (standard software) as well as their installation have been agreed between the customer and our company, the following regulations shall apply with priority. § 1 Components of the contract / changes 1) The exact scope of our company's services results from our offer in connection with the negotiation protocols kept by us. In addition, the basis for the provision of services by our company is the qualitative and quantitative service requirements of the client as determined on the basis of the information provided by the client. If new requirements of the customer make it necessary to change the services or the technology used, our company will submit a corresponding offer at the request of the customer - these requirements will only become part of the contract after their binding acceptance by the customer. 2) Services provided by our company which are used by the customer beyond the agreed scope of services shall be remunerated by the customer according to the actual personnel and material costs at the rates applicable at our company. This includes, in particular, services outside our company's usual business hours, the analysis and elimination of malfunctions and errors which have arisen due to improper handling or operation by the customer or other circumstances for which we are not responsible. Likewise, training services are generally not included in the services and require a separate agreement. Furthermore, services that go beyond the standardised installation of hardware and software (e.g. expenses due to individual customer requests that are not already included in the contract) shall be additionally remunerated. 3) Within the scope of the standardised hardware installation, our services covered by the contract include the delivery of the hardware ordered by the customer to the customer, the connection to the customer's EDP system and the test run. Unless otherwise agreed, our services do not include the integration of the hardware into the customer's existing EDP (e.g. the existing network) or the adaptation of the hardware to the customer's existing EDP. These services are to be ordered and remunerated separately. 4) Within the scope of the standardised software installation, our services covered by the contract include the delivery of the software ordered by the customer to the customer and its installation on the workstations / servers etc. agreed in the contract, but not services which go beyond the standard installation. Insofar as the customer wishes the software to be installed to be adapted to his existing requirements, the individual set-up as well as the existing EDP system or the existing network, these services are to be agreed separately and remunerated separately. Our company is entitled to change the equipment / materials used to provide the services at its reasonable discretion (§ 315 BGB) if no impairment of the services is to be expected and the result of our services is technically comparable.
§ 2 Retention of title 1) The ownership of any object of sale sold by our company shall remain reserved until full payment of all outstanding claims of our company arising from the business relationship, including any refinancing or reverse bills of exchange. With the exception of the dispositions regulated in paragraph 4), any pledging, transfer by way of security or other disposition of the sold object of sale by the customer is not permitted as long as the reservation of title exists. 2) If the customer has acted in breach of contract, in particular by defaulting on payment, our company shall be entitled to take back the object of sale if the legal requirements for withdrawal are met. The taking back of the object of sale shall constitute a withdrawal from the contract. Our company is thus entitled to realise the object of sale. The proceeds of such realisation shall be credited against the customer's liabilities after deduction of the realisation costs. 3) The customer shall not acquire ownership of the wholly or partially manufactured items by processing the purchased item. This also applies if the processing is carried out by employees of our company. Should the retention of title nevertheless expire due to any circumstances, the customer and our company agree already now that the ownership of the new items shall pass to our company upon processing. Our company hereby accepts the transfer of ownership. The customer shall remain the custodian thereof free of charge. If the processing is carried out with goods that are still the property of third parties, our company shall acquire co-ownership of the new items. The extent of this co-ownership is determined by the ratio of the invoice value of the purchased goods to the invoice value of the other goods. 4) The customer is entitled to resell the object of sale in the ordinary course of business. However, he already now assigns to our company all claims resulting from the resale (incl. value added tax), which accrue to him against his customers or third parties. He remains authorised to collect these claims despite the assignment. The authority of our company to collect the claims itself shall not be affected by this. However, we undertake not to collect the claims as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed. However, if this is the case, our company may demand that the customer discloses the claims assigned to him and their debtors, provides all information necessary for collection, hands over all relevant documents and informs the debtors of the assignment. 5) Paragraph 4) shall also apply insofar as the object of purchase has been processed. If, in addition to the object of sale of our company, the new items contain only such items that belong exclusively to the customer himself, he shall assign the entire purchase price claim to our company. In the event of an advance assignment to several suppliers, our company shall be entitled to the fraction of the claim which corresponds to the ratio of the invoice value of its reserved goods to the invoice value of the other processed items. 6) The customer undertakes to treat the object of sale subject to retention of title with care. He shall inform our company immediately in writing of any damage, seizure or other interference. In the event of seizure of an object of sale owned by our company, the customer shall bear all costs of replacement, insofar as these cannot be recovered from third parties. This also applies to the costs of legal action.
§ 3 Cooperation obligations of the customer 1) The customer undertakes to carry out all necessary cooperative actions which are not to be provided by our company according to the contract, but which are necessary for the provision of the services. 2) If the services are provided on site at the customer's premises, the customer shall provide the network components, connections, supply current incl. peak voltage equalisation, emergency power supplies, space for equipment, workstations and infrastructure to the required extent and quality (e.g. air conditioning) free of charge. 3) The customer shall be responsible for compliance with the requirements for the operation of the hardware demanded by the respective manufacturer. This also applies to the necessary security precautions (e.g. security cells) on his premises. 4) The customer shall provide on the agreed dates and at his own expense all information, data and documents required by our company for the execution of the order in the form requested by us and shall support us on request in problem analysis and troubleshooting, the coordination of processing orders and the coordination of services. Changes in the work processes at the customer which may cause changes in the services to be provided by our company for the customer require prior coordination with our company with regard to their technical and commercial effects. 5) Insofar as this is not expressly included in the scope of services of our company, the customer shall provide for a network connection at his own risk and at his own expense. The customer is obliged to treat the passwords of our company etc.. required for the use of the services confidentially. 6) The customer shall be obliged to perform all duties to cooperate incumbent upon him in such a timely manner that our company is not hindered in the performance of the services. The customer is obliged to ensure that the employees of our company or the third parties commissioned by us have the necessary access to the customer's premises for the provision of the services. 7) If the customer does not fulfil his obligations to cooperate on the agreed dates or to the extent provided for, the services rendered by our company shall nevertheless be deemed to have been rendered in accordance with the contract despite possible restrictions. Insofar as deadlines have been agreed between our company and the customer, deadlines shall be extended appropriately if the customer fails to cooperate. If additional expenditure in terms of time or personnel is required due to a lack of cooperation on the part of our customer, this shall be remunerated by the customer. Status: 02.02.2021, 12.38 hrs
Preamble Trans4mation offers cloud-based IT service solutions, such as Software-as-a-Service, Platform-as-a-Service, Infrastructure-as-a-Service and other products in cooperation with Cloud Service Providers (CSP). With Software-as-a-Service, the customer can use a software application online for a fee. Platform-as-a-Service means the provision of platform IT resources. Infrastructure-as-a-Service corresponds to the provision of hardware or hardware-related IT resources. These IT resources are often decoupled from the physical hardware on which they are operated through hardware virtualisation. The customer can choose from a variety of such services. The concrete design of the individual cloud-based IT service solutions are presented in separate contracts.
§ 1 Subject matter of the contract and parts of the contract (1) The subject matter and components of the contractual relationship between the Customer and Trans4mation are the delivery/brokerage of cloud-based IT service solutions together with application documentation (product) in accordance with these provisions, the service certificate/the individual contract for all products and the version of the special product-related terms and conditions of Trans4mation and the CSP valid for the respective individual product at the respective time. The special product-related conditions generally consist of: a) the service and performance descriptions for the respective product and the service level agreements (SLA), b) the special contractual conditions for the product, including special licence conditions. (2) The source code of the software on which the products are based is not part of the subject matter of the contract. (3) For the quality of the products delivered by Trans4mation, the performance description available at the time of conclusion of the contract from the performance certificate/the individual contract and the special product-related conditions is conclusively decisive. Trans4mation does not owe any further quality of the products. In particular, the customer cannot derive such an obligation from other representations of the software in public statements or in the advertising of Trans4mation and/or the manufacturer, as well as their employees or sales partners, unless Trans4mation has expressly confirmed the quality going beyond this to the customer in writing. (4) If Trans4mation provides additional services (consulting, training, support services, etc.), these will be remunerated separately. Unless otherwise agreed between the parties, time expenditures are to be remunerated according to the currently valid hourly rate and Trans4mation's currently valid overview of prices, services and travel expenses.
§ 2 Contract execution and order (1) Trans4mation undertakes to provide, in accordance with the respective performance certificate, correspondingly at the respective special product-related conditions and, if applicable, further conditions applicable to the contractual relationship upon request. (2) a) If the order is placed via a Trans4mation website or an electronic platform, the following applies: The offers presented do not constitute an offer in the legal sense. With the order, the customer bindingly declares his contractual offer. Input errors can be corrected before sending the order using the usual keyboard and mouse functions. By clicking on the button concluding the order, the customer submits a binding offer of contract. After receipt of the customer's offer, the conclusion of the contract with regard to the ordered product takes place with the acceptance of the order by Trans4mation by expressly declared order confirmation or by product provision. b) If the order is placed via e-mail, fax or telephone, the following applies: The product catalogue displayed on Trans4mation's website or transmitted in any other form (e.g. e-mail) does not constitute an offer in the legal sense. By placing an order by e-mail, fax or telephone, the customer makes a binding offer to enter into a contract. The conclusion of the contract with regard to the ordered product takes place with the acceptance of Trans4mations order by expressly declared order confirmation or by product provision. (3) Product provision: The manner in which and with which scope and which rights of use the product is provided to the customer in each case is described in the service certificate or in the special product-related conditions and further conditions that apply to the respective product. (4) Trans4mation may have to adjust the agreed terms and conditions from time to time during the term of the contract, e.g. at the request of a third party licensor or the manufacturer. Trans4mation will only make these changes for valid reasons. Changes will be communicated to the customer in writing or by e-mail at least four weeks before they come into force. The changes will become effective if the customer does not object in writing or by e-mail within a period of two weeks after becoming aware or possibly becoming aware of the change notification and Trans4mation has pointed out this legal consequence to the customer in the change notification. Otherwise, changes require the consent of the customer.
§ 3 Rights of use, licences (1) With the acceptance of an order placed by the customer, the customer receives a simple, non-transferable right of use to use the respective products within the scope of the service descriptions and licence conditions, limited in time and place. Further provisions may be contained in the performance certificate, in the special product-related terms and conditions and in further terms and conditions of the manufacturer or a third party licensor. Insofar as there are no conflicting provisions in the performance certificate, the special product-related conditions and other conditions, the following shall apply: (2) If the customer maintains several branches or subsidiaries, the right of use is limited to the customer's branches and subsidiaries. The customer alone shall be responsible for the compatibility of its use of the products with laws applicable outside Germany. (3) The customer may only use the products for the purpose of processing its internal business transactions. In particular (a) a data centre operation for third parties or (b) the temporary provision of the Products (e.g. as Application Service Providing) for other than Group Companies or (c) the use of the products for the training of persons who are not employees of the customer are only permitted with the prior written consent of Trans4mations. Commercial subletting is generally prohibited. (4) Duplications of the products are only permitted to the extent that this is necessary for the contractual use. In all other respects, Sections 69d (2) and (3) and 69e UrhG shall apply. (5) Exceeding the licence: In the event that a product is used by the customer or due to the customer's behaviour beyond the licensed extent (e.g. if it turns out in the course of an audit at the customer's premises that a single user account is shared by several users), the customer shall reimburse all damages incurred or arising in connection with the exceeding of the licence. In addition, the customer must immediately re-license missing product subtractions in order to meet its contractual obligations again. Further claims of Trans4mation or third parties remain unaffected. (6) If necessary, Trans4mation can mandate an independent auditor to have the proper fulfilment of this contract audited by the customer after prior reasonable notice during normal business hours. Otherwise, the audit conditions of the respective licensor or manufacturer apply. (7) The Customer shall assist in the performance of the audit in a reasonable manner and without remuneration. The audit right includes the auditor's right of access to the business premises and access to the computer systems in which the relevant records are kept, provided that (a) the Auditors comply with applicable health and safety and general security rules for the business premises (including guidelines established by Trans4mation); and (b) the Auditors undertake an appropriate duty of confidentiality.
§ 4 Cooperation, action and information obligations of the customer, technical requirements, blocking (1) The customer has informed himself about the essential functional features of the products and bears the risk as to whether these meet his wishes and needs; he has sought advice on any questions of doubt from Trans4mation or from expert third parties before concluding the contract. (2) The setting up of a functional - and also taking into account the additional load caused by the contractual items sufficiently dimensioned - hardware and software environment as well as a sufficient connection to the Internet shall be the sole responsibility of the customer. (3) The customer shall thoroughly test the products for freedom from defects and for usability in the existing hardware and software configuration after they have been made available before they are used productively. (4) The customer shall observe the instructions given by Trans4mation for the installation and operation of the products; he shall inform himself at regular intervals about current instructions on the websites accessible via the Internet and take these into account during operation. (5) Insofar as Trans4mation is responsible for further performance obligations beyond the provision of the contractual objects, the customer shall cooperate in this to the necessary extent free of charge, e.g. by providing employees, work rooms, hardware and software, data and telecommunication facilities. (6) The customer shall take reasonable precautions in the event that the products do not work properly in whole or in part (e.g. through daily data backup, fault diagnosis, regular checking of data processing results). (7) The Customer shall ensure that the data processing by the Products complies with the statutory requirements, in particular the requirements under data protection law, commercial law and tax law, and shall observe any export restrictions. (8) The Customer's possible access to the cloud-based IT service solution depends on the connection via the Internet, for which the Customer is solely responsible. The Customer shall bear the costs for its Internet access. (9) The Customer shall be responsible for the settings made by it through the cloud-based IT service solution and its content, if any, delivered, unless otherwise agreed. (10) The customer shall inform Trans4mation accordingly if the customer becomes aware of the infringement of an industrial property right or of copyrights to the products. (11) Trans4mation is entitled to have the customer's access to a product blocked at any time in order to avoid damages, liability or sanctions or for similar good cause, if the customer violates any laws or if the customer behaves contrary to the agreed terms and conditions (including the special product-related terms and conditions and further terms and conditions), in particular in the following (non-exhaustive) cases: a) the customer or a user attributable to the customer uses the products aa) for the dissemination of or participation in the dissemination of viruses, spyware, other malware or unsolicited e-mails (spam, phishing, chain letters, etc.); bb) for actions that impair or damage computers or systems connected to the Internet or gain unauthorised access to them (hacking); cc) for acts or omissions that cause abnormal impairment or damage to third parties' systems or abnormally high or uncontrollable demands on resources (such as loads on the processor, RAM, disk I/O or network); dd) for the infringement of third party rights (including copyrights) through uploads, downloads, distribution of content or similar actions without the proper consent of the rights holder; ee) for acts, in particular the dissemination of materials, which violate applicable criminal offences (e.g. slander and libel, child pornography, receiving stolen goods or unauthorised gambling); or ff) for other actions that violate applicable law, agreed conditions regarding the use of the products. b) the customer infringes the industrial property rights of third parties in the context of the use of the products. (12) Trans4mation will immediately inform the customer of any blocking and the reasons for it and will further inform the customer whether the blocking is permanent or temporary. (13) In case of a permanent blocking, Trans4mation is entitled to terminate the affected contract extraordinarily. In case of an extraordinary termination by Trans4mation, the customer has to compensate Trans4mation for all damages or lost profit, which usually consists in the fact that the agreed remuneration has to be paid by the customer until the expiry of a possible ordinary termination. (14) The customer undertakes to cooperate free of charge to the extent necessary in the event of termination of the contractual relationship. (15) The parties will inform each other immediately if they become aware in connection with the products that a loss, damage or unauthorised modification of data or unauthorised access to customer or trans4mation data has occurred. The parties will also cooperate with the upstream suppliers or manufacturers of the Products in such an event to minimise the impact of such an event and the risk of recurrence.
§ 5 Payment (1) Trans4mation receives remuneration for the service specified in the service certificate according to the conditions specified therein. (2) Trans4mation creates the status of the services provided at the customer. Based on this calculation, Trans4mation will issue an invoice to the customer. Invoices are payable within due for payment within 14 days from the date of the invoice. (3) If licence fees are fixed for a certain billing period (e.g. per month), billing is per instalment from the day on which the registration or announcement of the respective licence rights took place. The customer only pays for the period in which the licensing actually took place. The performance certificate or the special product-related terms and conditions may contain a different or supplementary provision, e.g. for consumption-based pricing models, day-dependent prices or special pricing conditions/discounts based on the minimum order quantity, which then takes precedence. (4) The customer's obligation to pay for ordered products exists regardless of the actual use by the customer. (5) Trans4mation has the right to restrict or block product services if the customer is culpably in arrears with an invoice amount. Trans4mation has the right to demand performance anyway or, at its option, to terminate the contract without notice. (6) Trans4mation is entitled to adjust the prices with an advance notice of 25 days to the beginning of the month in case its purchase prices change. If the adjustment causes a price increase of more than 8% per year, the customer has the right to terminate the contract extraordinarily in writing with a notice period of two weeks before the price increase takes effect. If the price increases are demonstrably not the responsibility of Trans4mation, the customer has no right of termination. This applies in particular to cost adjustments that are directly or indirectly caused by legislation. (7) It is agreed that invoices can be sent in paper form or by e-mail. (8) Prices quoted are net plus the respective VAT.
§ 6 Claims in the event of default of performance, limitation period (1) The customer is obliged to address any support requests (hotline and e-mail support during normal business hours or times defined by Trans4mation) directly to Trans4mation. Trans4mation provides the customer with services within the scope of service levels for the products, if and insofar as these have been described in the special product-related conditions. These services may be provided by third parties (2nd or 3rd level support) on behalf of Trans4mation. Any deviations are regulated in the performance certificate. (2) Insofar as the service disruptions and remedial measures are defined in an SLA (Service Level Agreement), the respective remedial measures are final for the affected service disruption. If no Service Levels are defined in the Service Level Agreement or in the special product-related terms and conditions or if the defined Service Levels are not applicable to the affected service disruption, the Customer's claims shall be governed by the statutory law applicable in the contractual territory within the limits set by § 7. (3) Trans4mation must be granted the necessary access to the contractual objects for all necessary work. If this is not done, the customer is liable for any additional costs or delays. (4) The customer must immediately notify Trans4mation of any defects, malfunctions or damages that occur, stating the specific circumstances (in order to make the error comprehensible).
§ 7 Warranty (1) Liability for damages to legal assets other than life, limb or health is excluded, unless the damages are based on intentional or grossly negligent conduct of Trans4mations, one of its legal representatives or one of its vicarious agents or the conduct is also not a breach of material contractual obligations. Material contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the customer may regularly rely. (2) This exclusion of liability does not apply insofar as claims under the Product Liability Act are concerned, a defect was fraudulently concealed or a guarantee of quality was assumed. (3) For the recovery of data, unless data backup is the object of the service, Trans4mation is only liable insofar as the customer has taken all necessary and reasonable data backup precautions and has ensured that the data can be reconstructed with reasonable effort from data material that is kept ready in machine-readable form.
§ 8 Freedom from third party rights (1) Trans4mation guarantees that its services are free of property rights and related claims of third parties. (2) If a third party asserts against the customer that a service would infringe its rights, the customer shall immediately notify Trans4mation. He leaves it to Trans4mation - and, if applicable, to his pre-suppliers or manufacturers of the products - as far as permissible, to defend the asserted claims at his expense. (3) Trans4mation is entitled to prohibit the customer from using the service in accordance with the aforementioned regulations if claims under property rights are asserted against him. (4) Claims for damages of the customer remain unaffected.
§ 9 Confidentiality and data protection (1) The contractual partners undertake to treat all knowledge of confidential information and trade secrets ("trade secrets") of the respective other contractual partner obtained in the course of the initiation and performance of the contract as confidential for an unlimited period of time and to use it only for the purposes of the performance of this contract. Trans4mation's trade secrets also include the subjects of the contract and the services rendered according to the individual contracts. (2) The customer shall only make the subjects of the contract accessible to employees and other third parties insofar as this is necessary for the exercise of the rights of use granted to him. He will instruct all persons to whom he grants access to the contractual objects about Trans4mation's rights to the contractual objects and the obligation to keep them confidential and will obligate these persons in writing to maintain confidentiality and to use the information only to the extent according to clause (1), insofar as the persons concerned are not obligated to maintain confidentiality at least to the aforementioned extent for other legal reasons. (3) The customer indemnifies Trans4mation against all damages, costs and expenses (including reasonable costs of legal defence) incurred in connection with a breach of this confidentiality obligation. (4) The foregoing obligations do not apply to trade secrets that are (a) were already in the public domain or known to the other contracting party at the time they were communicated by the contracting party; (b) have become public after being disclosed by the other party to the contract through no fault of the other party to the contract; (c) have been made available to the other Party by a third party after their transmission by the other Party in a non-illegal manner and without any restriction on confidentiality or exploitation; (d) which have been independently developed by a Party without the use of the other Party's trade secrets; (e) required to be disclosed by law, governmental order or court order, provided that the disclosing Party promptly notifies the other Party and assists the other Party in defending against such order or order; or (f) to the extent the other Party is permitted to use or disclose the Trade Secrets under mandatory law or under this Agreement. (5) The obligation under the aforementioned clauses shall survive the termination of this Agreement. (6) Trans4mation complies with the rules of data protection, in particular when it is granted access to the customer's business or hardware and software. It ensures that its vicarious agents also comply with these provisions, in particular it obliges them to maintain data secrecy before commencing their activities. Trans4mation does not intend to process or use personal data on behalf of the customer. Rather, a transfer of personal data occurs only in exceptional cases as a secondary consequence of the contractual services of the customer. The personal data will be handled by Trans4mation in accordance with the provisions of data protection law. If Trans4mation's access to personal data cannot be excluded, Trans4mation will conclude an agreement in accordance with the requirements of § 11 BDSG at the customer's request. (7) The Customer is the data controller for personal data used or processed by means of the Products and is therefore responsible for the permissibility of the data processing and transmission under data protection law. The CSP is the commissioned data processor who processes data on behalf of and according to the instructions of the Customer. Insofar as the data protection laws provide that a separate contract for commissioned data processing is to be concluded or another agreement between the responsible body and the commissioned data processor within the meaning of the respective applicable data protection laws, these agreements are to be concluded directly between the Customer as the responsible body and the CSP as the commissioned data processor.
§ 10 Term, termination of contract (1) These contractual terms and conditions shall enter into force after the signing of the service vouchers/individual contracts by both contracting parties. (2) The individual contracts/service certificates may be terminated by the Customer with a notice period of 7 (seven) months to the end of the month and by Trans4mation with a notice period of 5 (five) months to the end of the month. (3) In the event that the Parties have agreed on a minimum contract period for certain products in individual contracts, this agreement shall remain in force in respect of the respective individual contract until the respective minimum contract period ends, notwithstanding paragraph 2. (4) The customer may change (add to, increase or reduce) individual contracts, provided that the special product-related terms and conditions and other terms and conditions do not regulate anything to the contrary and a notification with a more reasonable period of notice has been given in advance. Reductions/cancellations shall only become effective when the respective mandatory or optional agreed minimum term has expired. The mandatory minimum term is specified in the special product-related terms and conditions for each product, if applicable. (5) After expiry of the minimum term, the service shall be continued on a daily basis and shall be remunerated in accordance with the respective applicable price list, unless (a) the Individual Order has previously been terminated by either party on the expiry of the Minimum Term; or (b) a mandatory Minimum Term applies in accordance with the specific product-related terms and conditions. In the latter case, i.e. if the special product-related conditions provide for a mandatory minimum term and the individual order was not terminated at the expiry of the minimum term, the following rule shall apply: The individual order (aa) shall terminate if no extension has been agreed between the parties and the Minimum Term is more than 12 (twelve) months; or (bb) the Individual Order shall be automatically renewed for the Minimum Term if the Minimum Term is 12 (twelve) months or less. (6) Trans4mation may discontinue or terminate the offer of certain products or individual orders with a notice period of at least 5 (five) months to the end of the month. Notwithstanding this notice period, however, the respective individual orders shall remain in force until the expiry of the respective agreed minimum term or the contract term extended in accordance with clause (5) for the respective individual order, if this term should extend beyond the announced termination date. (7) Upon termination, the rights and obligations of the parties, including the licence rights and rights arising from the individual orders pursuant to section 3, shall end, unless otherwise agreed or obligations or rights are affected which, by their nature, are intended to survive the end of the agreement. (8) In the event of the termination of a specific product offer or a specific individual order, the effect of the termination shall be limited to this and shall not affect the validity of this Agreement in other respects. (9) Trans4mation is entitled vis-à-vis the customer to terminate all individual orders within the notice periods. (10) Each party may terminate the individual contracts for good cause without observing a notice period and irrespective of existing minimum contract periods. Good cause shall be deemed to exist in particular if the customer is in default of payment of the (licence) fees or a not insignificant part thereof for two consecutive payment dates or is in default of payment of the licence fees for a period extending over more than two dates in an amount equal to the fees for two months or if the other party enters into any kind of liquidation process, appoints a liquidator, is generally unable to settle claims of third parties or enters into negotiations with creditors to avert insolvency. (11) Any termination shall be in writing. (12) The termination of individual orders shall not affect the term of further orders.
§ 11 Final clauses (1) All contracts between the parties as well as the individual orders to be agreed separately shall be governed by the laws of the Federal Republic of Germany to the exclusion of the provisions on private international law and the UN Convention on Contracts for the International Sale of Goods. The contractual language is German or English. (2) Any contradictions between the provisions governing the contractual relationship shall be resolved according to the following order of precedence, whereby the provisions mentioned first in each case shall take precedence over those mentioned below: Agreements in the performance certificate/individual contract special product-related conditions for the respective product these General Terms and Conditions other General Terms and Conditions Trans4mations. (3) Amendments and supplements to contracts must be made in writing. No verbal collateral agreements have been made. (4) Should a provision of a contract or these GTC be or become invalid, this shall not result in the invalidity of the entire contract/the GTC. (5) The exclusive place of jurisdiction for all disputes in connection with these General Terms and Conditions and the individual contracts based on them as well as their execution and place of performance is the registered office of Trans4mation. (last updated: 01.01.2021, 18:30:14)