General Terms and Conditions

General terms and conditions of business of T.CON GmbH & Co.KG
 

Section 1: Conclusion and scope of the contract

(1) These general terms and conditions of business of T.CON GmbH & Co.KG, located at Straubinger Straße 2, 94447 Plattling, Germany, (hereafter referred to as “T.CON”) are the basis for all offers, contracts, deliveries and services transacted and concluded between T.CON and its customers.

(2) When a customer places a purchase order, the contract takes effect either through the acceptance of the offer (order confirmation), through the countersigning of a contract or through delivery. No later than at this point in time are these general terms and conditions of business considered accepted. The customer is bound to any term of acceptance which has been set.

(3) Any contradicting terms and conditions of business or purchase of the customer will be expressly objected to. They will only be recognized if they are expressly agreed upon in writing. Any additional agreements or addenda to the contract have no legal force unless they have been confirmed by T.CON in writing.

(4) These general terms and conditions of business apply only to companies.

(5) In the case of follow-up business with companies, these general terms and conditions of business also apply even if they are not also expressly included again in the conclusion of the contract in each individual case.

 

Section 2: Purchase of hardware or software

(1) Should the provision of property and the transfer of hardware (e.g. computers, hard disk drives, memory etc.) or software be owed, the content of the contract will conform to the respective individual purchase contract.

(2) In the case of a software purchase, delivery will occur through the provision of a copy of the program in the form of a physical duplication, e.g. a CD-ROM, or through the provision of access to a software download from a T.CON server or a software producer or via electronic transmission.

(3) In the case of permanent software transfer, only that software which has been agreed upon in the contract will be owed and delivered. The customer is not entitled to the delivery of newer software.

(4) T.CON endeavors to comply with the specified delivery schedule. T.CON will promptly inform the customer about any delays in delivery.

(5) Should obstacles arise after conclusion of the contract which make delivery of the ordered goods impossible, T.CON is entitled to withdraw from the contract. Any purchase price already paid in advance will then be promptly refunded.

(6) Instead of withdrawing from the contract in cases mentioned in the previous paragraph (5), T.CON is entitled to offer the customer goods comparable both in terms of quality and price. T.CON will notify the customer of the reason for the compensation delivery. For this purpose, the customer will receive a message (usually an email) with the compensation delivery offer. A compensation delivery can only occur if the customer expressly consents to this.

(7) Should unforeseeable increases in material, labor and/or transport costs, taxes or fees occur between conclusion of the contract and delivery, T.CON is entitled to adjust the price accordingly if a period of four (4) months or more has passed between the conclusion of the contract and delivery.

(8) T.CON reserves the right to deliver goods which deviate from the ordered goods to a degree customary in the industry if the deviations are acceptable to the customer, do not negatively affect quality (in particular) or if they are absolutely necessary, especially from the standpoint of the operational reliability of the goods.

(9) T.CON is entitled to make partial deliveries if this is acceptable to the customer.

(10) The goods remain the property of T.CON until paid for in full. The customer is obligated to inform T.CON immediately in writing should a third party access the reserved property and to notify the third party of the rights of T.CON.

 

Section 3: IT projects

a. Service owed

(1) Should the performance, transfer or installation of an IT project subject to inspection be owed by T.CON, the service owed will be that stipulated in the most recent version of the specifications created by the customer in case of doubt if it is recognized as obligatory by T.CON and if no product specifications are available.

(2) Should no specifications be available from the customer, the service owed will be that stipulated in the most recent version of the product specifications created by T.CON and/or the most recent written offer in case of doubt.

(3) The customer specifications are the requirement profile of the customer which describes its expectations and targets for the anticipated project. The most recent version of the product specifications (current version number) definitively outlines the services to be provided by T.CON. When the service provided by T.CON corresponds to the provisions of the product specifications, T.CON has fully rendered its services to the customer, even if there are deviations from the customer specifications.

(4) Should it become necessary as part of contract execution to refine customer specifications or product specifications which could not be completed before inception of the contract or project (e.g. due to the complexity of the order), the parties will appropriately update the customer specifications or product specifications and provide them to the other contractual party for inspection and approval.

(5) In principle, T.CON does not have a duty to inspect the specifications created by the customer. This does not affect any additional duties to inform or advise or other duties of T.CON to cooperate which may arise for this reason in individual cases, as T.CON has a clear advantage over the customer in terms of knowledge.

(6) For a fee agreed upon on a case-by-case basis, T.CON can create or update the customer specifications or create product specifications. Refinements and changes to the customer specifications or product specifications are carried out by T.CON if notified accordingly and only with the approval of the customer. Approval must be granted in text form. Should the customer not object to the notification of a refinement or change to the customer specifications or product specifications within a period of four (4) business days, this is deemed as indicating approval. The customer is informed of this legal consequence separately in the notification.

b. Change orders

(1) The customer can submit a change order to agreed-upon project requirements in writing up until the point of acceptance.

(2) T.CON must render the changed services as long as they are not unreasonable to T.CON within the scope of its operating capacity. T.CON may reject the change as unacceptable within 14 calendar days from receipt of the change order or claim an assessment as per Paragraph 3. Both must be made in text form. T.CON must make the changes if it does not issue a rejection or an assessment order in time.

(3) Should the change request require that T.CON carry out an extensive assessment to determine whether and under what conditions the changes can be made, T.CON can demand additional compensation for this assessment if it has notified the customer in writing and the customer has ordered the assessment in writing; the period during which the customer must be notified of the results of the assessment in writing is to be agreed to by the parties.

(4) Should the change affect any of the main contractual arrangements (e.g. compensation, execution deadlines, acceptance etc.), T.CON will claim adjustment of the contract and addenda according to the respective current version within a period of 14 days following the change order submission. If this does not occur in time, the changed service is rendered based on the existing agreement. This does not apply for the agreed-upon compensation if the changed service is usually only rendered for a higher fee. In this respect, T.CON can demand compensation customary for the location, at a minimum. Should T.CON claim changes to the contract in time, the customer will notify T.CON whether or not they accept the contractual adjustment within two (2) weeks from the time of receipt. Should the customer not respond within these two (2) weeks, no changes are considered agreed upon.

c. Creation and transfer of operating instructions/a manual

In the case of IT projects, the customer is not owed the creation and transfer of operating instructions and/or a manual by T.CON unless the parties have expressly agreed otherwise.

d. Transfer of rights of use

(1) Unless otherwise agreed upon, the customer receives a basic right of use within the scope agreed upon in the contract for services rendered as part of IT projects (software development and programming in particular). Should no agreement be made, the basic right of use on a single computer will be transferred. All drafts, final artwork, source code and produced software, including the aforementioned as partial services of an overall project, are subject to the German Copyright Act. The provisions of the Copyright Act will also apply if the threshold of originality required according to Section 2 of the Copyright Act is not reached.

(2) Other applicable rights, in particular those governing reproduction of the software beyond the extent required for use as stipulated in the contract, are not granted unless stipulated otherwise in Paragraphs 6 and 7 below. In addition, the customer does not have the right to modify the software unless the change is required in order to remedy defects. This right to modify only applies if prior rectification attempts by T.CON are either rejected or have failed.

(3) The transfer of granted rights of use to third parties requires the written consent of T.CON. T.CON has the right to be informed of the scope of use.

(4) The customer is not entitled to the provision raw data or source code.

(5) The customer does not obtain the right to use services of T.CON in the scope agreed upon until the agreed-upon compensation has been paid for in full and without reservation.

(6) The creation of a backup copy and the reproduction of the delivered software within the scope of a customary data backup or data backup recommended by the manufacturer to ensure intended operation and operation of the IT system operated by the customer are permissible.

(7) Decompilation of the software within the scope of Subsection 69 e of the German Copyright Act also remains permitted. Upon request by the customer, the required interface information is to be provided on short notice at any time for this purpose.

e. Acceptance

(1) Following the completion and transfer of IT projects (including software installation, for example), the project is accepted. The customer will accept the project within a period of one (1) month after the point in time at which T.CON provided notification of project completion in writing. Should T.CON also owe the customer installation of the software, the period begins when the installation of the software is complete and the customer is notified of this installation in writing accordingly.

(2) Project acceptance requires that functional testing be carried out. The type, scope and duration of this testing is specified by project managers on both sides before testing is carried out unless a corresponding agreement is already present in the service description, potentially in conjunction with other contract addenda. During functional testing, the customer will immediately notify T.CON of any deviations from the service requirements in the services actually rendered.

(3) If functional testing is carried out with a positive result, acceptance is to be declared immediately. Functional testing is successful if either all acceptance criteria agreed upon by the project managers before acceptance have been fulfilled or the requirements according to the contract have been fulfilled or only insignificant defects are present.

(4) Should the customer not declare acceptance despite the criteria for acceptance being fulfilled, T.CON may specify a reasonable deadline for submission of a declaration of acceptance. The project is deemed accepted upon the expiration of this deadline. T.CON will notify the customer of this legal consequence when the deadline is set. This also applies if the customer refuses to participate in functional testing, thus making functional testing impossible.

f. Guarantee

The parties agree that a prioritized ticket system is to be used, both during project work and when reporting/inquiring about faults. For the remainder, the arrangements in Section 8 of these terms and conditions of service apply.

 

Section 4: Services

(1) Within the scope of service rendering (consulting or support services and training in particular), T.CON owes the customer purely support-related service, and not the practical implementation of any results achieved during the rendering of service. This would need to be agreed upon separately as a project service in a service contract.

(2) When services are being agreed upon, it is not the acceptance of service, but rather the rendering of service by T.CON based on the documented number of hours worked which is agreed upon.

(3) Insofar as copyright-protected works are created through the rendering of services in performance of the service contract by T.CON, Subsection 3 d applies accordingly.

 

Section 5: Support services

(1) In addition to T.CON’s primary service offerings as per Sections 2 – 4 of these terms and conditions of business, support from T.CON for the services it offers can be arranged for a fee in a separate agreement to be concluded with the customer.

(2) As referred to in this section, support includes, in particular: consultation by telephone or in person, the elimination of faults outside the legally owed scope of guarantee and outside the legally owed guarantee period and the provision of updates.

(3) T.CON performs the fault analysis and elimination as part of support services using the means of its choice. Until fault elimination is concluded, T.CON is entitled to eliminate faults through the use of a software or hardware workaround.

(4) The response times of T.CON are based on the respectively specified fault categories.

 

Section 6: Duties of the customer to cooperate

a. IT projects

(1) The customer ensures the punctual provision of raw data to T.CON in accordance with the respective applicable deadlines. The customer must ensure that a 1-to-1 backup of the provided raw data is created and kept available in a format which can be used again at any time so that the customer is not disadvantaged should the raw data be corrupted or destroyed (in particular) after it is transferred.

(2) The customer must also ensure that current backups of its other data stores are continually being made in a format which can be used again at any time.

(3) Unless otherwise stipulated in an individual contract, the customer must designate to T.CON, in text form, specific persons responsible for the project with regard to technology and strategy and their corresponding decision-making authority before a project is implemented.

(4) As regards specific agreed-upon deadlines, the customer must, in a timely manner, provide T.CON with information, technical specification requirements and specific service requirements concerning the IT services to be rendered.

(5) The customer must provide T.CON with full access to computers and/or data within the scope of project implementation.

(6) Delays not attributable to culpability on T.CON’s part automatically lead to a postponement of the timetable for the respective duration of the delay which occurred. T.CON will notify the customer of delays for which T.CON is not responsible and of the respective conditions which led to them. This will occur immediately and in text form. T.CON is not responsible for, in particular, those delays which arise due to a lack of participation on the part of the customer in accordance with this section.

b. Support services

The customer will support T.CON in troubleshooting to the best of its ability, in particular by providing all documentation and information (in machine-readable form as well, upon request) required for fault analysis and elimination and by providing competent and expert employees for cooperation with T.CON if necessary.

 

Section 7: Compensation, due dates and payment conditions

(1) All prices are purely net prices and do not include value added tax in the respective legal amount.

(2) Unless stipulated otherwise in an individual contract, the customer will pay T.CON for services rendered no later than 10 days after issuance of the invoice. No discounts will be granted.

(3) Should fixed prices not have been agreed upon, compensation is made based on expenditure. Prices do not include packaging or shipping costs.

(4) Should software or hardware be purchased, T.CON may demand advance payment.

(5) Software projects are generally invoiced according to the number of hours worked. If a fixed price is agreed upon, the agreed-upon fee is paid in the following increments unless stipulated otherwise:

30% upon conclusion of the contract
30% upon transfer of the product specifications
30% upon execution of the first integration test
10% upon going live

(6) If a project contract is terminated pursuant to Section 649 of the German Civil Code (BGB), T.COM may still make the compensation claims which it is entitled to make according to Section 649 Paragraph 2 of the Civil Code or, in lieu of this, request a fee of 40% of the compensation to which it is entitled for the services not yet rendered at the time of termination. The customer is entitled to provide proof that the compensation to which T.CON is entitled according to Section 649 Paragraph 2 of the Civil Code is lower.

(7) Regardless of the object of the contract, payments to T.CON can be made by bank transfer to the business account of T.CON with specifications of the respective order or invoice number or by check from a bank located within Germany. Other methods of payment, such as bills of exchange, tangible assets, credit or the assignment of payments to third parties in particular, are not acceptable.

(8) The determining factor for whether or not payment has been made on time is the date on which payment is credited to the business account of T.CON.

(9) Default interest accrues in the amount specified by law. The right to claim further damages remains unaffected by this.

(10) The place of performance of T.CON is the company’s domicile in Plattling, Germany unless specified otherwise in an individual contract.

 

Section 8: Guarantee and manufacturer’s guarantees

(1) In the case of obviously defective goods or transport damage, the customer is obligated to provide notification of this in writing, by telephone, by fax or by email within 14 days after delivery of the goods. In the case of hidden defects, the customer must notify T.CON immediately following their being discovered.

(2) Should the delivered goods be faulty, not being suitable for the contractually intended or customary use in particular, the customer reserves the legal rights of guarantee. At its discretion, the customer can request rectification or replacement. The customer must allow T.CON a reasonable amount of time for supplementary performance. Should a deadline not be set, the customer retains the remaining rights of guarantee.

(3) Guarantee claims against companies lapse within one (1) year. The limitation period begins upon delivery of the goods.

(4) The guarantee does not cover defects which can be attributed to the customer, in particular: user or operator error, improper use or improper installation or which can be attributed to force majeure. The customer also reserves rights of guarantee with regard to defects based on faulty installation, insofar as the installation instructions were faulty.

(5) Guarantees of the manufacturer beyond the statutory guarantee remain unaffected. Details are to be found in the respective guarantee certificates of the manufacturer.

 

Section 9: Liability

(1) Unless otherwise specified in individual agreements between the contractual parties, T.CON is liable in case of premeditation and gross negligence. For minor negligence, T.CON is only liable if a major contractual obligation is violated. Major contractual obligations include the basic, fundamental obligations of the contractual relationship which, when fulfilled, enable proper performance of the contract and which, when violated, jeopardize attainment of the contractual purpose and which the customer regularly relies on and may rely on to be fulfilled. Insofar as T.CON only violates major contractual obligations with ordinary or slight negligence, liability is limited to the amount of the foreseeable damage typical for this type of contract at the time of conclusion of the contract.

(2) These limitations of liability also apply directly in favor of the bodies and the performing and vicarious agents of T.CON.

(3) Damage claims in accordance with the German Product Liability Act and for damages arising from loss of life, bodily injury or damage to health remain unaffected by the above limitations of liability.

(4) T.CON must provide the level of care customary for the industry. When determining whether or not T.CON is at fault, it must be taken into account that it is not possible to produce software which is 100% free of technical defects.

(5) T.CON is not liable for the loss of data and/or programs insofar as the damage incurred is due to the customer’s failure to perform proper and conventional data backups, thereby ensuring that lost data can be restored with reasonable effort. The parties both assume that at least one daily backup which can be accessed for at least four (4) weeks corresponding to a proper data backup is performed at the facility of the customer. It is the responsibility of the customer to properly perform the daily backup. Incidentally, the liability to restore data of the customer is limited to the amount required to restore the data if it is backed up on a regular basis in the way specified by T.CON or the provider of third-party software used or can be reconstructed in some other way from machine-readable data material with reasonable effort.

 

Section 10: Assigning of claims and offsetting

(1) T.CON is entitled to assign claims from business relationships to third parties.

(2) Offsetting with entitlements other than those established as undisputed or legally binding is excluded. This does not apply if offsetting occurs with a claim based on faulty performance by T.CON.

 

Section 11: Place of jurisdiction

If the customer is a businessperson, a legal entity under public law or a special fund under public law, the place of jurisdiction is Deggendorf, Germany.

 

Section 12: Closing provisions (written form, foreign law and severability clause)

(1) Changes to this contract must be made in writing. This also applies to any deviations from the written-form clause.

(2) Any termination must be made in writing in order to become effective.

(3) The contractual relationship is governed solely by German law to the exclusion of private international law and the United Nations Convention on Contracts for the International Sale of Goods.

(4) Should one of the above provisions of this agreement be or become ineffective, the remaining provisions will not be affected. Rather, a substitute provision which the parties would have agreed upon to achieve the same economic result if they would have known about the ineffectiveness of the provisions and which best approximates the purpose of the agreement will replace the ineffective provision.

 

This general terms and conditions of business are written in German and in English. The English version has been made available for convenience purposes only. In the event of any discrepancy, the German version shall prevail.

Plattling, Germany, September 18, 2017


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Norbert Kytka, Headquarters Plattling

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