General Terms and Conditions for Consulting Services and IT Services and Products of DATUREX GmbH
§ 1 Scope
- Unless otherwise agreed, these General Terms and Conditions (GTC) shall apply exclusively to the consulting services and IT services as well as products offered by DATUREX GmbH (hereinafter referred to as "DATUREX") and to pre-contractual obligations. Other contractual terms and conditions shall not become part of the contract, even if DATUREX does not expressly object to them.
- DATUREX addresses its offers only to companies in the sense of § 14 BGB (German Civil Code) or legal entities, tradesmen and self-employed persons or freelancers (hereinafter referred to as "customers").
- These GTC are supplemented by the respective valid descriptions of DATUREX, which can be called up by the customer at any time on the web offers / web pages of DATUREX and can be downloaded, saved and printed out.
- If individual agreements (only effective in text form) take place between the customer and DATUREX, these take precedence over these GTC and supplement them. The offer, order documents and invoice shall be deemed to be an individual agreement.
§ 2 Conclusion of contract
- Offers made by DATUREX are subject to change and non-binding, unless the offer is designated in writing as binding. A legal commitment shall only come about through express declaration in writing or text form. In case of doubt, the offer of DATUREX with the calculated prices and services is binding for four weeks.
- On the basis of DATUREX's non-binding offer, the customer places a binding order for the service offered by DATUREX. In doing so, he affirms that he is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal entity, a trader or a self-employed person or freelancer.
- All verbal agreements require confirmation in writing by DATUREX. Order confirmations are generally not tendered. However, if an order is placed by telephone, online or verbally, a confirmation letter in text form by DATUREX is required.
- The contract is concluded impliedly with the provision of services by DATUREX or with the receipt of an order confirmation in text form.
- DATUREX reserves the right to reject orders at its own discretion or to withdraw from the contract without the customer incurring any claims for damages as a result, in the event that it transpires that there has been a breach of amended statutory provisions due to the content or form of the service owed.
- In addition, DATUREX reserves the right to withdraw from the contract in the event of justified doubts about the customer's creditworthiness.
§ 3 Subject matter of the contract, scope of services, time and place of performance
- The subject matter of the contract shall be the consulting services and IT services as well as products of DATUREX as specified in the order documents. Individual agreements require the text form to be effective.
- The customer specifies the task on the basis of which the fulfillment of the order is jointly planned.
- DATUREX alone decides which of its own employees and freelancers or employees of other companies will be involved in the order within the scope of order processing, to what extent, and when or whether they will be replaced, if necessary. The employees involved are subject solely to the instructions of DATUREX. Accordingly, the customer may submit proposals and tasks only to DATUREX itself.
- In case of doubt, stated deadlines are estimated times. Agreed deadlines shall be extended by a reasonable period of time in the event of delays for which the customer is responsible (in particular information and cooperation actions) or delays due to force majeure or other circumstances for which the customer is not responsible.
- If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time. Prices are based on the DATUREX price list at the time the contract is amended. In case of doubt, work will continue as previously agreed until the amended contract comes into effect. Delays will be borne by the customer.
- Reminders and setting of deadlines by the customer must be in writing.
- The customer has checked before the conclusion of the contract that the specification of the object of purchase corresponds to his wishes and needs. Descriptions, representations, etc. are descriptions of performance, but not guarantees. A warranty requires a written declaration by DATUREX.
- The place of performance of services is the place where the service is to be rendered. Otherwise, the place of performance for all services arising from and in connection with the contract concluded shall be the registered office of DATUREX.
§ 4 Contractual obligation and termination
- Any termination of the further exchange of services (e.g. in case of rescission, reduction, termination for cause, damages in lieu of performance) must always be threatened by stating the reason and setting an appropriate deadline for remedy (usually at least two weeks) and can only be declared within two weeks after expiry of the deadline. In the cases stipulated by law, the deadline may be waived. Anyone who is wholly or predominantly responsible for the disruption cannot demand reversal.
- All declarations in this context must be made in writing to be valid.
§ 5 Acceptances
- The customer shall inspect the result within 10 working days and notify any defects or declare acceptance. If the order consists of several independently usable individual works, each individual work shall be accepted separately and promptly. The service shall be deemed to have been accepted if the Client neither notifies defects nor declares acceptance within this period. Insignificant defects shall not entitle the Client to refuse acceptance.
- Notices of defects to the detriment of market products will be reported by DATUREX to the supplier for rectification, insofar as rectification is necessary for the provision of services by DATUREX. If market products are used as a basis or tool for the realization of an order, functional restrictions and defects caused by these products shall not constitute grounds for refusal of acceptance.
- Concepts and specifications of the customer require written acceptance by DATUREX. Concepts and specifications of DATUREX must be accepted by the customer prior to realization. A written order from the contents of these elaborations constitutes an acceptance free of defects and errors.
§ 6 (Cooperation) Obligations of the Customer
- The quality of the service depends significantly on the cooperation of the customer. The customer therefore undertakes to support DATUREX in the provision of the service to the best of its ability and in due time.
- The customer's obligations include in particular (but are not limited to): Complete and truthful disclosure of all requested contractual data and notification of all changes in material circumstances, independent clarification of professional, competition, trademark, copyright, personality, data protection and name law issues before placing the order, safeguarding and confidentiality of provided access data and provision of required hardware and software as well as workstations and resources.
- Any necessary decisions must be discussed with the contact person designated by DATUREX.
- The customer may use the services and systems provided by DATUREX only in accordance with the applicable statutory provisions, any official orders and the contractual agreements made with DATUREX.
- Reference is made to the customer's indemnification obligation or liability in the event of a claim against DATUREX by third parties in the event of a breach of the customer's (cooperation) obligations on behalf of DATUREX (§ 8).
§ 7 Granting of rights
- The customer agrees that DATUREX may use the results or parts thereof produced in the course of the performance of the service for reference purposes for its own advertising.
- To the extent necessary for the performance of the contract, the client irrevocably grants DATUREX the non-exclusive, but transferable right of use, unrestricted in terms of time, content and territory, with respect to the content provided and the results produced as a result of the performance of the service.
- DATUREX shall be the exclusive owner and proprietor of the service, software, all graphics, logos, trademarks and names used by DATUREX in connection with the products. In addition, DATUREX becomes the owner of all intangible property rights in the results upon performance of the service. This remains unchanged even if the customer makes suggestions for improvement. If the customer has copyrights to the result, he shall transfer these to DATUREX in their entirety. DATUREX shall be entitled to apply for corresponding property rights.
§ 8 Rights of use of the customer
- After full payment, the customer shall be entitled to the simple right of use of the results of the services, limited in time to the duration of the contract and limited in content to its own purposes within the projected scope, unless otherwise agreed.
- DATUREX grants the customer a license to use the products. This gives the customer a non-exclusive right, limited in time and content to the duration of the business relationship, non-transferable and revocable, to use the products offered under the conditions and purposes described in the offer or contract.
- Any other and / or further use or exploitation is excluded.
§ 8 Liability of the customer
The customer shall indemnify DATUREX and DATUREX's vicarious agents against all claims by third parties (indemnity agreement), which such third parties assert against DATUREX or DATUREX's vicarious agents on the basis of the customer's breach of one of the above obligations. This shall also include compensation for the resulting damage, including the costs of an appropriate legal defense.
§ 9 Warranty and Liability of DATUREX
- At the time of transfer of risk, the software has the agreed quality and is suitable for the contractually presupposed use or, in the absence of an agreement, for the usual use during the term of the contract. There is no guarantee for uninterrupted availability and quality. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not error-free. DATUREX warrants that it will perform the work undertaken with the greatest care and to the best of its ability. DATUREX must be notified without delay of the necessity of maintenance measures, which will then be remedied within a reasonable period.
- DATUREX has no influence on the transport of data via the Internet and therefore does not guarantee that messages sent will reach the recipient correctly.
- A specific performance result or a specific success are generally not owed.
- In the event of defects, DATUREX can first provide subsequent performance. This can also be done by remote maintenance. The customer shall provide the necessary technical requirements at its own expense and grant DATUREX electronic access to the software after appropriate prior notification.
- The warranty is excluded insofar as the defect is due to faulty or negligent handling, disregard of instructions from DATUREX or external influences beyond the responsibility of DATUREX and has occurred after handover to the customer. The same applies if the customer refuses to inspect possible defects or makes changes that have not been agreed.
- Unforeseen events for which DATUREX is not responsible shall release DATUREX from its obligation to perform and warranty as well as liability.
- DATUREX shall be liable in accordance with the statutory provisions for damage to life, limb and health resulting from a culpable breach of duty, as well as damage covered by liability under the Product Liability Act. For other damages not covered by the above clauses, DATUREX's liability, on whatever legal grounds, is excluded to the extent permitted by law, unless DATUREX is guilty of intent or gross negligence. In the event of a breach of a cardinal obligation due to simple negligence (an obligation the fulfillment of which makes the proper performance of the contract possible in the first place, the observance of which the contractual partner regularly relies on and may rely on, and the breach of which jeopardizes the achievement of the purpose of the contract), DATUREX shall be liable to the extent of the typical damage foreseeable at the time of conclusion of the contract, but not exceeding the total of the annual order value.
- DATUREX shall not be liable for any materials, content or services of the client provided by the client for the performance of the contract or published or disseminated by the components of DATUREX.
- To the extent that DATUREX's liability is limited or excluded, this shall also apply to its service providers, legal representatives, employees or other vicarious agents.
- The customer's claims shall become statute-barred within one year from the statutory commencement of the limitation period.
§ 10 Payment, set-off and retention
- The agreed remuneration is due without deduction after delivery of the product or service and receipt of the invoice by the customer and is payable within 14 days. Partial services can be invoiced to a reasonable extent. Invoices are then generally issued on a monthly basis. From 30 days after the due date, DATUREX may charge interest at the statutory default interest rate applicable at the time. DATUREX reserves the right to charge reminder costs for reminders issued. No discount will be granted.
- In the absence of any other agreement, the respective DATUREX price and conditions list shall apply. We reserve the right to make changes. Except in the case of exemption from value added tax, all prices are to be understood plus the respective legally applicable value added tax. DATUREX will pass on cost increases for licenses and maintenance services to the customer unchanged.
- In the case of invoicing on a time and material basis, this will be done by submitting the usual DATUREX activity records of the employees.
- DATUREX reserves the right, even during the term of the contract, to make further performance of services dependent on settlement of outstanding invoice amounts in the event of objectively justified doubts about the customer's ability to pay.
- The customer may only set off claims recognized by DATUREX or established by declaratory judgment.
§ 11 Amendment of the contract or the GTC
- Amendments and supplements to the contract must be made in writing to be effective. The written form requirement may only be waived in writing. Transmission in text form, in particular by fax or e-mail, shall also be sufficient to comply with the written form requirement.
- DATUREX may also make changes to the GTC after conclusion of the contract, insofar as this does not affect essential provisions of the contractual relationship and this is necessary to adapt to such unforeseeable developments that would have affected the contractual relationship to a not insignificant extent. The same applies to legal loopholes that have arisen after conclusion of the contract, insofar as their closure is necessary.
- DATUREX will notify the customer in text form of any changes to the GTC in good time before the date on which they are scheduled to take effect. The customer has the right to object to the notified amendment. If no objection is made within a reasonable period of time, the changes will become part of the contract at the time they take effect. The customer shall be informed of this within the scope of the notification of the change. If the customer objects in due time, the original GTC shall remain an integral part of the contract. DATUREX shall then have a special right of termination in text form within 4 weeks of the objection.
§ 12 Change of consulting services and IT services and products and price
- In particular, DATUREX is entitled to increase prices to the same extent as price increases of upstream third parties. The same applies in the event of an increase in value added tax or mandatory statutory levies.
- Likewise, DATUREX reserves the right to change consulting services and IT services as well as products.
- The customer will be notified of the changes in text form in good time before they come into force. If the customer does not object to the change in text form within 4 weeks, the changes shall become part of the contract. The customer will be informed of this within the scope of the notification of the change. If the customer objects in due time, DATUREX has the right to terminate the contractual relationship within 4 weeks by giving one month's notice.
§ 13 Confidentiality and data protection
- The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) received from the other contracting party before or during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contractual partners shall store and secure these items in such a way that access by third parties is excluded.
- The customer shall only make the contractual items accessible to employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the need for secrecy of the objects.
- DATUREX shall process the customer's data required for the transaction of business in compliance with the provisions of data protection law. DATUREX may name the customer as a reference customer after successful completion of the services.
- In case of necessity, there is agreement to conclude a contract for commissioned processing in accordance with Art. 28 DSGVO or a contract for joint responsibility in accordance with Art. 26 DSGVO
§ 14 Miscellaneous
- The place of performance and jurisdiction for all disputes arising from and in connection with this contract is the registered office of DATUREX.
- The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.
§ 15 Address
Tel.: +49 35179593513
with headquarters in Dresden
Local Court Dresden HRB 36495
VAT ID No: DE325253451