General Terms and Conditions (GTCs)

§ 1 Scope of application

1.1 PLACE Strategy GmbH provides consulting and support services in the areas of lean management, process and project management as well as development and customization services (hereinafter collectively "Services"). These General Terms and Conditions (hereinafter collectively referred to as "GTC") govern the provision of the Services by PLACE in the Lean Implementation and the introduction of our Lean Software within the scope of service contracts. In case of contracts for work and services, the Special Terms and Conditions for Contracts for Work and Services (hereinafter "BB-Werk") shall apply additionally.

1.2 PLACE renders services exclusively in accordance with these GTC and, in the case of contracts for work and services, additionally in accordance with the BB-Werk. Contractual terms and conditions of the Customer shall not apply, even if PLACE does not expressly object to them and performs the contract.

1.3 These GTC in their respective current version shall also apply to all future business relations between PLACE and the Customer, even if not referred to again.

1.4 PLACE uses these GTC only towards entrepreneurs within the scope of its business activities.

§ 2 Conclusion of contract, scope of services and quality

2.1 PLACE's offers are subject to change and non-binding, unless they are expressly designated as binding or they are made for a limited period of time. A contract for services is concluded either by signing it or by PLACE's written order confirmation or by PLACE executing the contract.

2.2 As a matter of principle, the scope, type and quality of PLACE's services are determined by the concluded contract and, unless otherwise agreed, by the project documents and other attachments designated as binding and, in the case of work performances, by the specifications (see § 1 of the BB-Werk). Other specifications are only binding if PLACE has confirmed them as binding in writing.

2.3 PLACE provides the Services in the contractually agreed quality and according to the state of the art at the time of the conclusion of the contract. Specifications of the Customer require the written form.

2.4 PLACE may make notes of discussions to specify or change contractual circumstances, in particular the subject matter of the service. The notes become binding for both parties if PLACE provides them to the Client and the Client does not object in writing within one week, stating the reasons. PLACE will point out this effect to the Customer in each case.

2.5 Information and representations in product and project descriptions, documentation, etc. do not constitute a warranty declaration by PLACE for the quality of work results, projects or services, unless PLACE expressly declares this in writing.

2.6 Insofar as PLACE carries out developments according to the Customer's requirements and specifications or insofar as PLACE integrates computer programs or other components of third parties or of the Customer itself into developments or adapts its own developments to the specified components, PLACE does not assume any responsibility for the technical and legal properties of these third-party components. In particular, the Customer indemnifies PLACE against claims for damages asserted by third parties against PLACE for infringement of third party patents, copyrights, trademarks or other industrial property rights.

2.7 PLACE is free to use subcontractors for the provision of the Services.

§ 3 Cooperation of the customer

3.1 The Customer shall provide PLACE in due time with all information required for the execution of the contract, shall check the work results in a timely manner and shall immediately give notice of possible malfunctions and defects in writing and with a precise description of the defect. This obligation is based on the Customer's possibilities to detect and name defects. PLACE does not waive the objection of delayed examination and notification in any case.

3.2 Insofar as it is necessary or useful for the performance of the contract, the Customer shall support PLACE in the performance of the contract free of charge by providing in due time and to the necessary extent e.g. employees, work rooms, the corresponding EDP environment, telecommunication facilities and data and by cooperating in specifications, tests, acceptances, etc.. The Customer shall name a contact person for PLACE who is authorized to make and receive the declarations required for the execution of the contract in a binding manner.

3.3 The Customer shall thoroughly test all work results, developments and adaptations for freedom from defects and for usability in the specific situation before commencing operational use. He shall, in accordance with the state of the art, back up his data, check the programs, carry out fault diagnoses and take other appropriate back-up precautions.

3.4 In the case of software implementation projects, it is a prerequisite for the performance of PLACE's services that the infrastructure provided by the Customer as well as the software to be provided by the Customer run smoothly, both individually and in interaction, and that in particular the network complies with the manufacturer's specifications for the respective software and allows operation without restrictions.

3.5 If the Customer does not comply with the duties to cooperate, PLACE is entitled to withhold services; other rights of PLACE remain unaffected. If PLACE nevertheless performs, the additional expenditure will be invoiced according to the respective valid price list. This also applies to additional expenses incurred by PLACE due to the fact that work has to be repeated as a result of incorrect, incomplete or subsequently corrected information provided by the Customer.

§ 4 Performance dates, delays

4.1 Delivery and performance periods shall be extended by the period during which PLACE is prevented from performing the services due to circumstances for which it is not responsible (e.g. labor disputes occurring through no fault of PLACE, force majeure, breakdown of employees, hardware or non-delivery by suppliers) and by a reasonable start-up period after the hindrance. The same applies to the period during which PLACE is waiting for information, cooperation actions or for a decision of the Customer regarding a supplementary offer.

4.2 Except for payment obligations, PLACE will only be in default by sending a reminder. Reminders and setting of deadlines by the Customer must be in writing to be effective. Deadlines set by the Customer for performance or subsequent performance must be reasonable; as a rule, they may not be shorter than 10 working days.

4.3 If the Customer is responsible for a project or contract disruption, PLACE will invoice the additional costs according to the respective valid price list.

§ 5 Remuneration, terms of payment, set-off

5.1 The remuneration for the services rendered results from the contract concluded for the services or PLACE's order confirmation. Unless otherwise agreed by the Contracting Parties, remuneration shall be based on time and effort in the form of daily rates in accordance with PLACE's current price list.

5.2 Unless otherwise agreed, the daily rates cover a working time of 8 hours. Any work performed in excess of this per day shall be remunerated on a pro rata basis. A 50% surcharge shall be added for weekend and holiday work as well as for night work (from 8:00 p.m.). Travel time of PLACE's employees to and from the Client's place of business as well as services rendered by PLACE at other locations upon the Client's request will be charged by PLACE for the travel time of the respective employees at 50% of the pro rata agreed daily rate. Costs for expenses, travel costs and overnight stays will be invoiced separately. Car journeys will be charged according to the respective valid price list, journeys by public transport (train 1st class, airplane business class) and overnight expenses according to expenditure, meals will be charged as a lump sum according to the respective valid maximum tax rates.

5.3 The services rendered (with the exception of agreed fixed prices) shall be invoiced monthly. Unless otherwise agreed, fixed prices shall generally be invoiced 1/3 after conclusion of the contract, 1/3 after the first agreed milestone has been reached and 1/3 after the service has been rendered. Payments are due within 14 days of the invoice date without deduction. The date on which PLACE can dispose of the payment is decisive in this respect.

5.4 All amounts are net amounts, to which the respectively applicable statutory sales tax as well as any levies and customs duties shall be added.

5.5 PLACE may claim default interest in the amount of 10% above the base interest rate as damage caused by delay. PLACE may prove a higher damage caused by delay, the Customer a lower one (but not below the statutory default interest rate). If the Customer is more than two weeks in arrears with a payment, PLACE is entitled not to provide any further deliveries and services until payment is made. PLACE will inform the Customer of this in writing before discontinuing deliveries and services.

5.6 The Customer may only set off undisputed or legally established claims from the same individual contract/order. The Customer shall only be entitled to a right of retention or the defense of non-performance within this contractual relationship and only in the event that PLACE itself has committed a gross breach of contract or has already received the part of the remuneration corresponding to the value of the performance for a defective performance, or if the Customer's counterclaim has been legally established or is undisputed.

§ 6 Copyrights and rights of use

6.1 The Customer shall be granted the non-exclusive, temporally and spatially unrestricted right to use the work results created for the Customer (process systems and plans, evaluations, analyses, planning and concept documents, in particular software as well as associated documentation, reports, drawings, etc.) for its own purposes, in its own operations and to the contractually agreed extent. The scope of the rights of use for the work results, in particular software, which have been obtained from third parties, is primarily determined by their terms of use, which PLACE will make available to the Customer. For such work results developed by PLACE itself and additionally for work results obtained from third parties, the conditions stated in the following paragraphs shall apply.

6.2 The Customer may load software and work results into the working memories and onto the hard disks of the contractually determined type and number of computers within the defined network and use them at the number and type of workstations determined there. Within the scope of the contractual use, he shall be entitled to copy the software, to make the necessary backup copies, which shall be designated as such, and to use the documentation supplied with the software. Leasing, transfer or use by and for third parties, timesharing use, use within the scope of online services (ASP) and data center activities or any other use of the software for third parties against payment or free of charge are generally not permitted without PLACE's consent. Unless otherwise agreed, the Customer receives software exclusively in the executable version (machine program).

6.3 All other types of exploitation, in particular the translation, adaptation, arrangement, other reworking and distribution of software and other work results require PLACE's consent. The copyright notices, other reservations of rights, serial numbers as well as other features contained in the software and other work results may not be changed or made unrecognizable.

6.4 The Customer may only sell the software and other work results to third parties with PLACE's written permission. PLACE will grant the permission if the Customer assures in writing prior to the transfer that he will finally stop using the software and other work results and has not retained any copies and if the third party undertakes in writing to PLACE to comply with the contractual rules of use and transfer.

6.5 The contractual partners shall be free to expressly designate individual individually programmed software and other work results as "exclusive material" by mutual agreement. In this case, the Customer shall receive the exclusive, transferable, irrevocable and temporally, spatially and factually unrestricted right of use and ownership. In this case, the customer shall be entitled to reproduce, translate, revise, distribute, make available for distribution to third parties, demonstrate, commercially exploit and publicly report on software and other work results. In this context, the Customer receives the source code including the development documentation and all other documents in copy or in the original. However, PLACE is not prevented to develop materials, software and work results and to provide them to third parties for use, which are similar to the exclusive material delivered to the Customer. Furthermore, the rules of use contained in this paragraph apply accordingly to work results not marked as Exclusive Material.

6.6 If PLACE supplies the Customer with software created by third parties, the Customer shall in principle be granted rights of use of the type and to the extent corresponding to the license terms and conditions of use of the third parties.

6.7 PLACE grants the aforementioned rights of use subject to the condition precedent of full settlement of all claims. PLACE may revoke the granting of the rights of use for good cause. An important reason is in particular if the Customer is in default of payment with a considerable amount and for a period of more than one month, does not comply with these Terms of Use or violates the obligation of secrecy according to § 9 and does not immediately cease this conduct even after written warning with threat of revocation, in case of imminent danger even without such warning. In case of revocation, the Customer shall return the software and other work results in the original and, if applicable, in copies and delete stored versions. Upon PLACE's request, he will assure the surrender and deletion in writing.

6.8 Except for the granting of exclusive rights of use, the Customer shall immediately notify PLACE in writing if third parties wish to access the software or work results; the Customer shall inform third parties of PLACE's ownership of the rights and of its own rights of use, which may only be conditional and limited.

6.9 If PLACE does not hand over the software to the Customer but only acts as host of the cloud-based application, the additional order processing agreement according to the contract annex comes into force. In addition to the data ownership rights, the security standards on the part of PLACE and possible subcontractors are also regulated there.

§ 7 Warranty/Deficiency Claims

7.1 The following regulations for claims for defects/warranty apply to services provided by PLACE on the basis of purchase contracts or contracts for work and services. If the services are subject to service contract law, PLACE may also demand the application of the following regulations for defined delimitable work results.

7.2 Errors in the sense of the warranty are exclusively reproducible errors, the cause of which lies in quality defects of PLACE's services including the services of subcontractors purchased by PLACE or PLACE's own program modules. Therefore, no error is a functional impairment resulting from hardware defects, deficiencies of the standard software, environmental conditions, incorrect operation, defective data, etc. PLACE points out that even minor changes to the software can lead to considerable, unforeseeable disturbances in the running of the program in question and other programs. Therefore, the Customer is expressly warned against unauthorized modifications of the programs; in this respect, the Customer bears the risk alone.

7.3 The Customer will examine all services of PLACE without delay and give notice of defects in writing with a precise description. The Customer's project manager shall take all necessary measures within the bounds of what is reasonable for the detection, containment and documentation of defects. This includes the preparation of a defect report, if necessary system logs and memory dumps, the provision of the affected input and output data, interim and test results and other documents suitable to illustrate the defect. In the event of a warranty claim, the Customer will provide PLACE with all available information and support the elimination of the defect.

7.4 PLACE may initially provide warranty by supplementary performance. At PLACE's option, the supplementary performance is carried out by providing a new program or documentation version or by PLACE showing possibilities to avoid the effects of the error. Not in every case a complete elimination of the error is possible by supplementary performance. The Customer will also accept a new program status if this leads to an acceptable adaptation effort.

7.5 Errors shall be classified by the contracting parties as follows:
- Category 1: The service cannot be used. The error cannot be circumvented by organizational or other economically justifiable means.
- Category 2: The use of the service is impaired, but can essentially take place. The error can be circumvented with organizational and other economically justifiable aids.
- Category 3: The error has no significant impact on the functionality and usability of the service. The use of the service is not or only insignificantly restricted.

7.6 If subsequent performance finally fails after more than two attempts despite a reasonable follow-up period set in writing, the customer shall have the right to reduce the remuneration or to rescind the contract at its discretion. Other warranty rights are excluded, such as reimbursement of expenses for defect rectification by third parties, new delivery, contract costs.

7.7 If the cause of the defect cannot be identified by the Customer, PLACE will investigate the cause of the defect. If PLACE proves that the defect cannot be attributed to it, in particular because unsuitable hardware has been used or the defect is due to interventions by the Customer, PLACE may claim reimbursement of expenses for its services.

7.8 In the event of a breach of duty by PLACE, the Customer may only claim damages instead of the entire performance and withdraw from the contract if the Customer has specifically named the complaint and specifically notified PLACE of the breach of contract, insofar as the setting of a deadline by the Customer for the performance or subsequent performance is required by law and is not dispensable in the individual case. Furthermore, the Customer must have threatened, together with the setting of a deadline, to reject PLACE's performance after unsuccessful expiry of the deadline and to claim damages instead of performance and/or to withdraw from the contract. If PLACE reacts to the Customer's request to remove the disruption, the Customer will finally declare within 10 working days after expiry of the set deadline at PLACE's request whether he will stick to the existing contract in order to avoid legal uncertainty.

7.9 If third parties assert property rights against the Customer, the Customer shall immediately inform PLACE in writing. PLACE will, at its discretion and in consultation with the Customer, defend or satisfy the claims. PLACE may replace the affected services with equivalent services that comply with the contractual provisions if this is acceptable to the Customer. The Customer may not acknowledge the claims of third parties on his own initiative. PLACE will defend the claims of third parties at its own expense and indemnify the Customer against all costs and damages associated with the defense of the claim, whereby the indemnification is limited by the provision in § 8 (Liability) and insofar as the damages are not based on a breach of duty by the Customer.

7.10 The limitation period for claims of the customer is:
- for material defects 1 year;
- in case of defects of title 1 year, if the defect of title does not lie in a right in rem of a third party, on the basis of which the delivered equipment or software can be reclaimed, and
- otherwise in accordance with the statutory regulation.

If a material defect or defect of title was deliberately concealed or if there is intent, fraudulent intent or gross negligence, the statutory limitation period shall also apply.

§ 8 Liability

8.1 The following provisions under 8.2 to 8.6 shall apply equally to claims of the customer for damages and/or reimbursement of futile expenses, irrespective of the legal nature of the claim.

8.2 PLACE is liable for simple negligence, in case of default, impossibility and other forms of fault-based liability only if an obligation is breached whose compliance is essential for achieving the purpose of the contract (cardinal obligation), as follows:

- Liability shall be limited in nature to such damages as could typically be expected to occur within the scope of this contract at the time of the conclusion of the contract.
- Liability for financial loss is excluded.
- The liability is limited to 50 % of the contract value and a maximum of 150 TEUR per claim and in total to a maximum of 100 % of the contract value and a maximum of 500 TEUR.
- The cumulative claims under warranty and liability are limited in amount to a maximum of 100 % of the contract value and a maximum of 500 TEUR.

8.3 PLACE shall be liable without limitation only for gross negligence of its legal representatives and/or executive employees and/or for intent. PLACE is liable for gross negligence of other employees and/or vicarious agents only to the extent and in accordance with the liability for ordinary negligence pursuant to § 8.2. Deviating from the above provisions, PLACE is liable for damages caused by delay due to gross negligence to 100 % of the contract value and absolutely up to a maximum of TEUR 750.

8.4 Liability for loss of data shall be limited to the typical recovery costs that would have been incurred in the event of regular and risk-compliant data backup measures. Otherwise, § 254 BGB (German Civil Code) shall apply to defective data backups by the customer.

8.5 If PLACE also provides software as a hoster, the order processing agreement attached to the contract additionally applies.

8.6 Liability for damages arising from injury to life, body or health, under the Product Liability Act, due to the absence of warranted characteristics or the non-existence of the guaranteed quality and/or due to guarantees within the meaning of § 443 BGB or § 639 BGB shall remain unaffected by the above provisions.

§ 9 Secrecy, Safekeeping

9.1 The contracting parties undertake to treat as confidential all information and documents they receive or become aware of from the other contracting party during the performance of the contract. They may not be made accessible to third parties not involved in the performance of the contract. The contractual partners shall store and secure these items in such a way that misuse by third parties is excluded.

9.2 Information and documents which were generally known and accessible at the time of disclosure or which were already known to the receiving contractual partner at the time of disclosure or which were legitimately made accessible to it by third parties shall not be covered by the confidentiality obligation. The confidentiality obligation shall also apply beyond the date of termination of this Agreement.

9.3 PLACE is allowed to use project names and customers for marketing purposes.

§ 10 End of contract, termination

10.1 Contracts for work and services may be terminated by the Customer at any time. In this case, the statutory regulation (§ 649 BGB) shall apply.

10.2 In the case of continuing obligations without a defined end of the contract, either party may terminate the contract by giving three months' written notice to the end of the month, unless otherwise agreed in the contract.

10.3 Either party may terminate the contractual relationship for good cause. The termination must be in writing in order to be effective. Good cause shall be deemed to exist in particular if the other contracting party ceases its payments, if it files for insolvency proceedings or comparable statutory proceedings, or if such proceedings are opened or their opening is rejected for lack of assets;
claims of the other contracting party are attached and the attachment is not lifted within two weeks.
Termination for cause must be preceded by a written warning with a threat of termination and the setting of a deadline, unless the delay would be unreasonable for the terminating party.

§ 11 Arbitration

11.1 In the event of any disagreement in connection with the contractual relationship which they are unable to settle among themselves, the contracting parties agree to call upon the arbitration board of the German Association for Law and Information Technology e.V. (Schöne Aussicht 30, 61348 Bad Homburg, Germany) to settle the dispute in whole or in part, either provisionally or finally. The contracting parties assume that the arbitration rules are fair and balanced, that the arbitrators are neutral, that the arbitration does not lead to binding findings of fact, and that legal recourse to the state courts remains open.

11.2 In order to enable the mediation, the contracting parties shall mutually waive the defense of the statute of limitations for all claims arising from the disputed facts of life from the request for mediation until one month after the end of the mediation proceedings. The waiver shall suspend the statute of limitations.

§ 12 Final provisions

12.1 PLACE may store the Customer's data disclosed in the course of the contractual relationship for internal purposes.

12.2 All amendments and supplements to the contract must be made in writing to be effective. This written form requirement may itself only be waived expressly and in writing by the contracting parties. The contractual partners shall also satisfy the written form requirement by sending documents by fax and by e-mail. Annexes are an integral part of the contract.

12.3 Should any provision of these GTC or of the contract be or become invalid or incomplete, the remaining content of the contractual relationship shall not be affected. The contracting parties shall replace the invalid provision with a provision that comes as close as possible in economic terms to the meaning and purpose of the invalid provision in a legally effective manner. The same shall apply to loopholes in the contract.

12.4 All legal relationships between the contracting parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of performance and place of jurisdiction for all disputes in connection with this contractual relationship is Stuttgart. PLACE shall also have the right to bring an action at the Customer's place of jurisdiction or at any other place of jurisdiction competent under national or international law.

Special Conditions for Work Performed (BB-Werk)

§ 1 Scope of application
PLACE provides work services exclusively in accordance with the present Special Terms and Conditions for Work Services ("BB-Werk"). In addition and supplementary, the General Terms and Conditions (GTC) apply.

§ 2 Specifications and project phases

2.1 As a rule, PLACE provides work services on the basis of the Customer's requirements and specifications (performance specification). The latter has verified that the requirements listed in the specifications or service specifications meet its wishes and needs.

2.2 Insofar as the requirements for the services are not specified by the Customer independently, PLACE is prepared to support the Customer in the preparation of the specifications or service specifications against separate commissioning and remuneration or to prepare the specifications or service specifications independently. The requirements specification prepared jointly or exclusively by PLACE will then be reviewed and approved by the Customer. If the Customer detects defects, gaps or contradictions during the review, he will inform PLACE immediately and PLACE will rectify the specification. If the rectifications do not constitute supplementary performance, PLACE may demand payment for them on a time and material basis. The performance specification is the binding basis for the provision of the services. For changes §3 BB-Werk applies.

2.3 If applicable, the contracting parties agree on further milestones and performance stages within the scope of the project development and implementation, upon the achievement of which the Client will review and approve the performance status. In this context, the respective performance status is deemed to be accepted at the latest one week after the date on which PLACE submits the respective work results or has notified the achievement of the performance status, unless the Client gives notice of defects in writing and in a comprehensible manner.

§ 3 Changes and Extensions (Change Requests)

3.1 The Parties may request changes and additions to the agreed services in writing. PLACE may refuse to execute a change or extension request of the Customer if the changes or extensions are not feasible or if PLACE cannot reasonably be expected to execute them within the scope of its operational capacity.

3.2 The Customer will commission the analysis of a change request. PLACE will determine the effects on the agreed scope of services and any necessary changes to the schedule within a period of time to be agreed upon by the contracting parties and present them in writing in a supplementary offer.

3.3 PLACE may charge remuneration on a time and material basis for the examination of a request for modification or extension and for the preparation of supplementary offers. PLACE may also demand separate remuneration for any downtime costs caused by the Customer's change request. Unless otherwise stipulated in the supplementary agreement, execution periods shall be extended by the number of calendar days on which the contractual work had to be interrupted due to the change request, as well as by a reasonable restart period.

3.4 Changes to the agreed scope of services as well as other contractual adjustments will be agreed in writing in a supplement to the contract. If the Contracting Parties do not agree on an amendment of the contract within two weeks after receipt of PLACE's supplementary offer, PLACE will execute the contract without considering the request for amendment.

§ 4 Project management

4.1 Each contracting party shall appoint a project manager (if necessary also his representative) who shall be responsible for the project and the execution of the contract and who shall make the necessary decisions.

4.2 The project managers as well as their respective deputies shall be authorized and entitled exclusively alongside the management to make all decisions relevant to the project and to issue declarations of intent, in particular to give notice of defects and to declare acceptance.

4.3 If PLACE prepares minutes of a project meeting, these minutes become binding for both parties if PLACE provides them to the Client and the Client does not object to the minutes in writing within one week, stating the reasons.

§ 5 Acceptance

5.1 In the case of contracts for work and services that do not involve the delivery of movable items to be manufactured or produced, the contracting parties shall conduct an acceptance test. The customer shall issue a written declaration of acceptance as soon as the performance has been rendered essentially correct, complete and free of defects. The customer will only refuse acceptance if the services have substantial defects or defects that cannot be remedied. The Customer will carry out the acceptance test within the agreed period of time, in the absence of an agreement within 14 days from PLACE's call for acceptance in cooperation with PLACE. During the acceptance test, the Customer and PLACE will jointly draw up a protocol showing the test cases/test data, any functional tests performed and the defects found.

5.2 Defects detected during the acceptance test shall be classified by the contracting parties by mutual agreement according to the categories specified in § 7.5 of the GTC. The Customer shall declare acceptance if no category 1 error has occurred. Category 2 errors will be corrected during the acceptance test if possible. Category 2 and 3 errors remaining after acceptance shall be remedied within the scope of subsequent performance.

5.3 Acceptance shall also be deemed to have been declared if the Customer expresses its approval of the performance in another way, e.g. by putting it to use in productive operation or by remaining silent in response to a request for acceptance (in each case for longer than one month) or by making payment in accordance with the contract.

5.4 PLACE may demand that the Customer nevertheless declares acceptance/release in accordance with the conditions formulated in this paragraph for deliveries and services for which no acceptance procedure is provided by law. Likewise, PLACE can demand that the Customer declares partial acceptance for definable parts of the performance. By a partial acceptance the Customer declares his agreement with the respective performance result. In the case of the overall acceptance, it is only checked whether the object of performance of the accepted partial area functions in interaction with the objects of performance of the other project areas. Partial acceptances that have already taken place remain unaffected by the success of the final acceptance.