General Terms and Conditions

General Terms and Conditions for IT Services

1. Scope

1.1 Deliveries and services as well as other legal transactions in the entire business dealings of seitcom GmbH — hereinafter referred to simply as “seitcom” — are carried out exclusively under the following General Terms and Conditions in their respectively valid version and are deemed to be part of the contract, unless something different is agreed in writing in an individual agreement between seitcom and the contracting party or client.

1.2 At the latest upon receipt of the goods or service, these terms shall be deemed accepted. They shall also apply if they are not mentioned again in later contracts or services.

1.3 Amendments and supplements to a contract require the written form.

1.4 Offers from seitcom are subject to change and non-binding and are made subject to self-supply by suppliers.

1.5 seitcom is entitled to withdraw from contracts if facts occur which demonstrate that the other contracting party is not creditworthy.

2. Delivery and Performance

2.1 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. Reasonable technical and design deviations from information in brochures, catalogs and written documents as well as model, construction and material changes in the course of technical progress and further development remain reserved without rights against seitcom being derived from this.

2.2 seitcom expressly reserves the right to reasonable partial deliveries/partial services and their invoicing.

2.3 Agreements on postponement of delivery or performance dates require the written form.

2.4 The task specification, the approach and the type of work results are determined by seitcom’s offer, insofar as they are not regulated in the written agreements of the parties involved. Changes, supplements or extensions of the task specification, the approach and the type of work results require a separate written agreement.

2.5 The services of consulting in the context of a contract for work are provided when the necessary analyses, the resulting conclusions and the recommendations have been drawn up and explained to the client. It is irrelevant whether or when the conclusions or recommendations are implemented.

2.6 At the request of the client, seitcom shall provide information on the progress of order execution. If seitcom is to prepare a comprehensive written report, in particular for submission to third parties, this must be agreed separately.

2.7 The contracting party may, six weeks after the expiry of a non-binding delivery date, request in writing that seitcom deliver or perform. Upon receipt of the request, seitcom is in default. In the event that the contracting party has a claim for damages due to delay, this shall be limited, in the case of slight negligence on the part of seitcom, to a maximum of 5% of the agreed remuneration. If the contracting party, in addition to asserting claims for damages due to delay, withdraws from the contract or instead claims damages in lieu of performance, the contracting party must set seitcom a reasonable period for delivery/performance after the expiry of the above six-week period. However, seitcom’s liability is excluded if the damage would have occurred even if the delivery date had been met. If a binding agreed delivery date is exceeded, a request by the contracting party is not required to place seitcom in default. The contracting party’s rights shall be governed by the above provisions.

2.8 seitcom reserves the right to withdraw from the contract if the delivery/performance delay caused by one of the aforementioned events lasts longer than six weeks and is not attributable to seitcom.

2.9 In the event of delay in acceptance, in addition to the payment claim, seitcom has the right to either set a new delivery or performance date or to withdraw from the contract. In the event of non-acceptance, seitcom may claim damages in the amount of 15% of the contractual remuneration.

3. Contract Duration and Termination

3.1 The contract duration is determined by the agreement of the contracting parties. The contract may be terminated at any time with eight weeks’ notice by written termination by the client or contractor, if the client’s operational reasons require this. In this case, the contractor’s remuneration shall be governed by the provisions of § 649 BGB.

3.2 If no express written contractual provision regarding the use of seitcom’s services is made otherwise, a use of services for an indefinite period shall be concluded. The contract may be terminated by either party with six months’ notice to the end of the year. The termination must be in writing. In the case of a service contract, it can be terminated with 14 days’ notice to the end of the month. The right to extraordinary termination for good cause remains unaffected.

4. Remuneration and Payment Terms

4.1 All invoices are payable immediately upon receipt, without deduction, unless otherwise agreed in writing. Invoicing is made upon delivery/performance. In the event of default in payment, default interest of 8 percentage points above the base rate pursuant to § 247 BGB shall be payable.

4.2 All amounts payable are exclusive of statutory value added tax at the applicable rate.

4.3 If fixed prices are agreed, one third of the contract sum shall be due upon conclusion of the contract, upon delivery and upon acceptance of the work.

4.4 The fee for the services of seitcom is determined in accordance with the rates set out in the individual agreements, unless otherwise provided in special cases.

4.5 If the other contracting party does not comply with the above payment terms, seitcom may at any time alternatively demand delivery/performance against cash on delivery, prepayment or security. All outstanding claims including those for which seitcom has accepted bills of exchange or for which installment payments have been agreed shall become due immediately.

4.6 In the case of services, seitcom is entitled, in addition to the fee claim, to reimbursement of expenses incurred. seitcom may demand appropriate advances on fees and reimbursement of expenses and make the continuation of its work dependent on satisfaction of its claims. A complaint about the contractor’s work does not entitle the withholding of remuneration including the requested advances and reimbursement of expenses. Set-off against such claims of seitcom is excluded. The contracting party may only set off against claims of seitcom with counterclaims if these are undisputed or legally established; a right of retention may only be asserted if it is based on claims arising from the contract from which seitcom’s claim arises.

4.7 seitcom reserves the right to increase the price reasonably if after conclusion of the contract cost increases occur — in particular due to price increases on the part of suppliers or exchange rate fluctuations — at seitcom. These will be proven upon request.

4.8 If the client changes or interrupts orders, work, planning and the like or changes the prerequisites for the provision of services, he shall reimburse seitcom for all costs incurred thereby and indemnify the consultant provided by seitcom against all liabilities to third parties.

4.9 If the client withdraws from the contract before the start of order processing, seitcom may demand a reasonable portion of the agreed fee as a cancellation fee.

5. Factoring

5.1 Our terms of delivery and payment alone apply, to which our customer agrees when placing an order, and likewise for future transactions, even if not expressly referred to, provided they were received by the purchaser in the case of an order confirmed by us. If the order is placed contrary to our terms of delivery and payment, our terms of delivery and payment shall still apply, even if we do not object. Deviations therefore only apply if they have been expressly acknowledged by us in writing.

5.2 We are entitled to assign the claims from our business relations.

5.3 The contractual relationship is exclusively subject to German law, in particular the Civil Code and the Commercial Code.

5.4 The place of jurisdiction is Mainz.

5.5 If the buyer is in default with any payment obligations towards us, all existing claims become immediately due.

5.6 To assert rights from the retention of title, withdrawal from the contract is not required, unless the debtor is a consumer.

5.7 Payments on underlying claims from invoices are to be made to VR FACTOREM GmbH, Ludwig-Erhard-Straße 30 - 34, 65760 Eschborn, to which we have assigned our present and future claims arising from our business relationship. We have also transferred our retention of title to VR FACTOREM GmbH. For this purpose, seitcom will send a separate letter to be confirmed, which contains contact details and the bank details of VR FACTOREM.

5.8 Set-off by the buyer with counterclaims is excluded, unless the counterclaims are undisputed or legally established. The assertion of a right of retention by the buyer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.

6. Retention of Title

6.1 The contractual product remains the property of seitcom until the fulfillment of all claims from the contract; in the event that the contracting party is a legal entity under public law, a special fund under public law or an entrepreneur acting in the exercise of his commercial or independent professional activity, it remains the property until settlement of the claims to which seitcom is entitled in connection with the ongoing business relationship.

6.2 In the event of default in payment by the contracting party, also from other and future deliveries/performances by seitcom, or in the event of deterioration of his assets, seitcom may withdraw from the contract and is, in the event of asserting damages instead of performance, entitled to enter the business premises of the contracting party and to take back the reserved goods. In the case of compensation after repossession, seitcom and the contracting party agree that this shall take place at the normal market value of the contractual object at the time of repossession. The contracting party shall bear all costs of repossession and realization; realization costs are agreed without proof at 5% of the usual selling value, whereby an increase or reduction on proof by seitcom or the contracting party is possible.

6.3 The assertion of the retention of title or the seizure of the delivery object by seitcom shall not be deemed a withdrawal from the contract, provided the contracting party is a merchant.

6.4 Items delivered for testing and demonstration purposes remain the property of seitcom. They may only be used by the contracting party beyond the testing and demonstration purpose on the basis of a separate written agreement with seitcom.

7. Warranty

7.1 The parties are aware and agree that with current state of the art it is not possible to exclude errors in software and hardware under all application conditions.

7.2 seitcom warrants that the contractual products are generally correctly described in product information and are, within this scope, basically usable. However, the warranty claim extends only insofar as the manufacturer of the goods acknowledges this. A guarantee of characteristics is only given if the respective statements have been confirmed in writing by seitcom.

7.3 seitcom cannot guarantee that the program functions meet the requirements of the contracting party or that they work together in the selection made by him.

7.4 Excluded from the warranty are in particular defects or damages that are due to operational wear and normal tear, improper use, operational errors and negligent behavior of the customer, operation with wrong type or voltage as well as connection to unsuitable power sources, fire, lightning strike, explosion or network-related overvoltages, moisture of all kinds, incorrect or defective programs, software and/or processing data as well as any consumable parts, unless the contracting party proves that these circumstances were not causal for the complained defect. The warranty also ceases if the serial number, type designation or similar identification marks are removed or made illegible as well as in the case of interventions in the goods during the warranty period by persons other than seitcom or third parties authorized by seitcom.

7.5 Warranty claims are not transferable.

7.6 Apart from the foregoing, seitcom forwards any further warranty and guarantee commitments of the manufacturers in full to the contracting party without assuming liability itself.

7.7 The delivered goods or the result of the provided service must be checked immediately upon receipt. Complaints must be made in writing within six calendar days after receipt and must reach seitcom.

7.8 In the case of warranty, rectification or replacement delivery shall be carried out at seitcom’s choice. The contracting party is obliged to accept a replacement delivery upon return of the defective goods. Replaced parts become the property of seitcom. If seitcom does not remedy defects within a reasonable, written-set period for rectification, the contracting party is entitled to demand either rescission of the contract or a reasonable reduction. Further claims are excluded. In particular, seitcom is not liable for damages that did not occur to the delivery object itself, for loss of profit or other financial losses of the contracting party.

7.9 In the case of rectification, seitcom bears the labor costs. All other costs of rectification as well as incidental costs associated with a delivery, in particular transport costs for the replacement item, shall be borne by the contracting party insofar as these other costs are not disproportionate to the value.

7.10 If the inspection of a defect report reveals that there is no warranty case, seitcom is entitled to demand reimbursement and invoice all expenses.

8. Limitation of Liability

8.1 If seitcom is obliged to pay damages pursuant to statutory provisions in accordance with these terms, liability shall be limited in the case of slight negligence as follows: Liability of seitcom is only given in the event of breach of essential contractual obligations and limited to the typically foreseeable damage at the time of conclusion of the contract.

8.2 If the damage is covered by an insurance taken out by the contracting party, seitcom shall only be liable for the disadvantages occurring to the contracting party in the course of claims settlement, such as higher insurance premiums or interest disadvantages. Liability for damage caused by a defect of the contract object that was only slightly negligent is excluded.

8.3 seitcom is not responsible for a defect if the defect is based on the task specification given by the client or on the client’s faulty or insufficient cooperation (see section "Cooperation obligations of the client" of these conditions); any warranty obligation of the contractor shall furthermore lapse if the client or third parties modify the services or parts of the services without the consent of the contractor. Otherwise, the statutory regulations apply to the warranty.

8.4 Claims for damages beyond the warranty can be asserted by the contracting party against seitcom only in the event of intent or gross negligence. The exclusion of liability does not apply to injury to life, body or health and to infringement of essential contractual obligations. Except in cases of intent, gross negligence and damages resulting from injury to life, body or health, the contractor’s liability is limited in amount to the damage typically foreseeable at the time of contract conclusion.

8.5 The personal liability of the managing director of seitcom, of vicarious agents and employees of seitcom for damages caused by them due to slight negligence is excluded.

8.6 Contractual claims for damages of the contracting party against seitcom become time-barred in the event of a consulting service in two years from the emergence of the claim.

9. Cooperation Obligations of the Client

9.1 The client undertakes to support the activities of seitcom. In particular, the client shall provide free of charge all prerequisites within his operational sphere that are necessary for the provision of services. In particular, he shall provide all documents and information necessary and significant for the execution of the order in due time. The client shall inform seitcom immediately of all circumstances that occur during the course of project execution and that may affect the work. If the client withholds requested prerequisites from seitcom, he shall pay separately for documented waiting times incurred by the contractor.

9.2 At seitcom’s request, the client must confirm in writing the correctness and completeness of the documents submitted by him and of his information and oral statements.

9.3 The client warrants that reports, organizational plans, drafts, drawings, statements and calculations prepared by seitcom within the scope of the order are used only for his own purposes. To the extent that copyright arises in the work results of seitcom, such rights shall remain with seitcom.

9.4 If the client omits one of the aforementioned points of these conditions or otherwise fails to provide the required cooperation, the contractor shall be entitled to terminate the contract after setting an appropriate grace period. The contractor retains the claim to remuneration taking into account the provisions of § 642 (2) BGB. The claims of seitcom for compensation for additional expenses and for damage caused by the delay or the omitted cooperation of the client remain unaffected, even if seitcom does not exercise the right of termination.

9.5 In connection with this order, the client will involve or commission other service providers only in agreement with seitcom.

9.6 seitcom is obliged to treat the client’s operational and business secrets confidentially and to have its employees sign a corresponding confidentiality agreement upon request. If an employee breaches the obligation, seitcom shall satisfy its compensation obligations toward the client by assigning its recourse claims against the employee to the client.

9.7 seitcom is obliged to comply with change requests of the client insofar as this is reasonable for it within the scope of its operational capacities, in particular with regard to effort and scheduling. Resulting additional costs shall be remunerated in accordance with clause 4.2 of these General Terms and Conditions.

9.8 As long as the changes have not been laid down in writing, seitcom will carry out the work without taking the change requests into account.

10. Interpretation Aid for Freedom from Defects (When Concluding Contracts for Work)

10.1 If the work is divided into several sections (phases), the client receives work documents depending on the progress of the work. They serve as information on the respective project status. If they do not lead to an immediate and justified complaint, the documents shall be deemed to be an aid to interpretation for a later assessment of the contractual object with regard to its freedom from defects.

11. Determination of Completion of the Order

11.1 If seitcom has provided the agreed services, it shall notify the client of this in writing. The order shall be deemed executed and terminated,

11.1.1 if seitcom hands over the written work results to the client or the client either confirms the acceptance in writing or has utilized the results; or

11.1.2 if the client does not object to a notification by the contractor pursuant to point 11.1.1) immediately, at the latest within four weeks, with written reasons.

12. Delay and Force Majeure

12.1 If seitcom is in default in the fulfillment of its obligation, the client may withdraw from the contract after expiry of a reasonable grace period set by seitcom if the agreed services have not been provided by the expiry of the period. Delay damages cannot be asserted independent of fault.

12.2 Events of force majeure entitle seitcom to postpone the fulfillment of its obligations by the duration of the hindrance and a reasonable start-up time. Strikes, lockouts and similar circumstances that substantially hinder or make performance impossible shall be equivalent to force majeure. The parties shall immediately inform each other of the occurrence of such circumstances.

13. Industrial Property Rights and Copyrights of Third Parties

13.1 The provision of software programs shall be in accordance with the license terms of the respective licensor. The scope of performance results from the license terms of the licensors as well as the performance descriptions and other user instructions which are printed in the corresponding user manuals or are available as files. This applies in particular to usage restrictions.

14. Loyalty Obligation

14.1 Client and contractor undertake mutual loyalty. In particular, the employment or other engagement of employees or former employees of the contractual partner who were involved in the execution of the order is to be refrained from until 12 months after the termination of the cooperation. A breach of this provision leads to a contractual penalty of 10,000 euros.

14.2 The client undertakes, during the execution of the order and for the subsequent period of one year, not to solicit personnel from seitcom, regardless of whether this is initiated by the employee or the client.

15. Right of Retention and Custody of Documents

15.1 Until full settlement of its claims, seitcom has a right of retention on the documents handed over to it.

15.2 After settlement of its claims from the contract, seitcom shall hand over all documents which the client or a third party handed over to it on the occasion of the execution of the order. This does not apply to correspondence between the parties as well as simple copies of reports, organizational plans, drawings, statements, calculations etc. created within the framework of the order, provided the client has received the originals.

15.3 The obligation of seitcom to store documents expires six months after delivery of the written request for collection; otherwise three years, for the documents retained under clause 15.2 five years after termination of the contractual relationship.

16. Protection of Intellectual Property

16.1 Reports, plans, drafts, statements and calculations prepared by seitcom may only be used for the contractually agreed purposes. Any contract-external use of these services, in particular their publication, requires prior written permission from seitcom. This also applies if the service provided would not be subject to special statutory rights, in particular copyright.

16.2 In the event of breach of the provisions, seitcom is entitled to additional remuneration in an amount appropriate to the circumstances.

17. Confidentiality and Data Protection

17.1 seitcom undertakes to treat all information obtained in connection with this order, in particular about company data, balance sheets, plans, documents and the like, as strictly confidential without time limitation and to bind both its employees and third parties it engages to the same absolute confidentiality.

17.2 The client agrees that the contents of the contract and the services created under this contract may be electronically stored and processed by the consultant in compliance with the data protection provisions. Both contracting parties undertake not to forward electronically stored or other data to third parties.

17.3 If, in addition to the data mentioned in clauses 17.1 and 17.2, personal data are collected and processed, this shall be done on the legal bases for the performance of contracts (Art. 6 para. 1 lit. b GDPR), on the basis of a balancing of interests (Art. 6 para. 1 lit. f GDPR) as well as for the fulfillment of a legal obligation (Art. 6 para. 1 lit. c GDPR).

18. Final Provisions

18.1 The contracting party is not entitled to assign his claims under the contract without the prior written consent of seitcom.

18.2 An offer presented here is valid for thirty days. If no contract is concluded by this time, the contractor is no longer bound to the offer.

18.3 The law of the Federal Republic of Germany shall apply. Place of performance and place of jurisdiction is Mainz.

18.4 Order processing within seitcom is carried out with the help of automated data processing. The contracting party hereby gives seitcom his express consent to store and process the data that became known in the context of contractual relationships and are necessary for order processing in accordance with the statutory provisions on data protection.

18.5 If, in addition to the data mentioned in clause 18.4, personal data are collected and processed, this shall be done on the legal bases for the performance of contracts (Art. 6 para. 1 lit. b GDPR), on the basis of a balancing of interests (Art. 6 para. 1 lit. f GDPR) as well as for the fulfillment of a legal obligation (Art. 6 para. 1 lit. c GDPR).

18.6 Should one or more provisions of these General Terms and Conditions be or become invalid or this contract text contain a regulatory gap, the contracting parties shall replace or supplement the invalid or incomplete provisions by appropriate valid provisions which correspond to the economic purpose of the desired regulation. The validity of the remaining provisions shall remain unaffected (severability clause).

The business partners of seitcom GmbH

Neuhofen, 27.06.2019