General Terms and Conditions (AGBs)
§ Section 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 adaptation services (hereinafter collectively referred to as "Services"). These General Terms and Conditions (hereinafter collectively referred to as "GTC") govern the provision of services by PLACE in the context of lean implementation and the introduction of our lean software within the scope of service contracts. For contracts for work and services the Special Terms and Conditions for Contracts for Work and Services (hereinafter referred to as "BB-Werk") shall apply additionally.
1.2 PLACE provides services exclusively according to the present General Terms and Conditions and, in case of contracts for work and services, additionally according to the BB works. The Customer's contractual terms and conditions shall not apply even if PLACE does not expressly object to them and performs the contract.
1.3 These General Terms and Conditions in their respective current version shall also apply to all future business relations between PLACE and the customer, even if not pointed out again.
1.4 PLACE uses these GTC only in relation to entrepreneurs in the course of its business activities.
§ 2 Conclusion of contract, scope of services and quality
2.1 Offers made by PLACE 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 shall be concluded either by signing it or by written order confirmation by PLACE or by PLACE executing the contract.
2.2 The scope, nature and quality of PLACE's services shall be determined by the contract concluded and, unless otherwise agreed, by the project documents and other attachments designated as binding and, in the case of work services, by the specifications (cf. § 1 of the BB-Werk). Other specifications shall only be 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. The Customer's specifications must be in writing.
2.4 PLACE may make notes of conversations for the purpose of specifying or modifying contractual conditions, in particular the subject matter of performance. The notes shall become binding for both parties if PLACE hands them over to the Customer and the Customer does not object in writing within one week with reasons. PLACE shall notify the Customer of this effect in each case.
2.5 Details and representations in product and project descriptions, documentations, etc. do not constitute a guarantee by PLACE for the quality of work results, projects or services unless PLACE expressly declares this in writing.
2.6 If PLACE carries out developments according to the customer's requirements and specifications or if PLACE integrates computer programs or other components of third parties or of the customer himself into developments or adapts own developments to the specified components, PLACE shall not assume any responsibility for the technical and legal properties of these third-party components. In particular, the Customer shall indemnify PLACE from claims for damages asserted by third parties against PLACE due to infringement of third-party patents, copyrights, trademarks or other industrial property rights.
2.7 PLACE is at liberty to use subcontractors for the provision of services.
§ 3 Cooperation of the customer
3.1 The customer shall provide PLACE in due time with all information necessary for the performance of the contract, check the work results in a timely manner and give immediate written notice of possible disturbances and defects, giving a detailed description of the defect. This obligation shall be based on the customer's possibilities to identify and name defects. PLACE shall in no case waive the objection of delayed inspection and notification of defects.
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 making available in due time and to the required extent e.g. employees, work rooms, the corresponding EDP environment, telecommunication facilities and data and by cooperating in specifications, tests, acceptances, etc. The customer designates a contact person for PLACE who is authorized to bindingly make and receive the declarations required for the execution of the contract.
3.3 The customer shall thoroughly test all work results, developments and adjustments for freedom from defects and for usability in the concrete situation before commencing operative use. He shall back up his data in accordance with the state of the art, check the programs, make fault diagnoses and take other appropriate backup measures.
3.4 In the case of software introduction projects, the prerequisite for the performance of PLACE's services is that the infrastructure provided by the customer and the software to be provided by the customer run smoothly individually and in interaction, and that the network in particular meets the manufacturer's specifications for the respective software and allows operation without restrictions.
3.5 If the Customer fails to comply with the obligations to cooperate, PLACE is entitled to withhold services; other rights of PLACE remain unaffected. If PLACE performs nevertheless, the additional expenses shall be charged according to the price list valid at the time. This shall also apply 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 deadlines shall be extended by the period during which PLACE is prevented from rendering the services due to circumstances beyond its control (e.g. labour disputes occurring through no fault of PLACE, force majeure, loss of employees, hardware or non-supply by suppliers) and by a reasonable start-up period after the hindrance. The same applies to the period of time PLACE is waiting for information, acts of cooperation or for a decision of the customer on a supplementary offer.
4.2 Except for payment obligations PLACE is only in default by reminder. Reminders and time limits set by the Customer must be in writing to be effective. Deadlines set by the Customer for performance or subsequent performance must be reasonable, they may not generally 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 currently valid price list.
§ 5 Remuneration, terms of payment, offsetting
5.1 The remuneration for the services rendered is set out in the contract concluded for the services or in PLACE's order confirmation. Unless the contracting parties have agreed otherwise, remuneration shall be based on time and effort in the form of daily rates according to PLACE's current price list.
5.2 Unless otherwise agreed, the daily rates cover a working time of 8 hours. Any additional work per day will be remunerated pro rata. A 50% surcharge shall be added for weekend and holiday work as well as for night work (from 20:00 hrs). The travel times of PLACE's employees to and from the customer's place of business as well as services which PLACE provides at other locations upon the customer'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 expenses and accommodation will be invoiced separately. Car journeys will be charged in accordance with the price list valid at the time, journeys by public transport (1st class train, airplane Business Class) and overnight expenses will be charged according to expenditure, meals will be charged at a flat rate according to the maximum tax rates applicable at the time.
5.3 The services provided (with the exception of agreed fixed prices) are invoiced monthly. Unless otherwise agreed, fixed prices are generally 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 provided. Payments are due within 14 days of the invoice date without deduction. The date on which PLACE can dispose of the payment is decisive.
5.4 All amounts are net amounts, to which the respectively valid legal value added tax as well as any levies and customs duties are added.
5.5 PLACE may demand interest on arrears in the amount of 10% above the base interest rate as damage caused by default. PLACE may prove a higher default damage, the customer may prove a lower (but not below the statutory default interest rate). If the Customer is more than two weeks in arrears with a payment PLACE is entitled to stop providing further deliveries and services until payment is made. PLACE shall notify the Customer in writing before discontinuing the deliveries and services.
5.6 The customer may only offset against 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 of the contract 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 Copyright and rights of use
6.2 The customer may load software and work results into the main memory and on the hard disks of the contractually specified type and number of computers within the defined network and use them at the number and type of workstations specified there. Within the scope of the contractual use, he is entitled to duplicate the software, to make the necessary backup copies, which are to be designated as such, and to use the documentation supplied with the software. Renting, transfer or use by and for third parties, timesharing, use within the scope of online services (ASP) and computer center activities or any other use of the software for third parties, whether against payment or free of charge, is generally not permitted without PLACE's consent. Unless otherwise agreed, the customer shall receive software exclusively in the executable version (machine program).
6.3 All other types of exploitation, in particular translation, editing, arrangement, other reworking and distribution of software and other work results shall require PLACE's consent. The copyright notices, other legal reservations, serial numbers and other features contained in the software and other work results may not be changed or made unrecognizable.
6.4 The Customer may sell the software and other work results to third parties only with PLACE's written consent. PLACE shall grant such permission if the Customer assures PLACE in writing prior to passing on the software and other work results that he will finally stop using the software and other work results and has not retained any copies and if the third party undertakes to PLACE in writing to comply with the contractual rules of use and passing on.
6.5 The contracting parties are at liberty 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 materially unlimited right of use and ownership. In this case, the customer is entitled to copy, translate, revise, distribute, make available to third parties for distribution, demonstrate, commercially exploit and publicly report on software and other work results. The customer shall receive the source code including the development documentation and all other documents in copy or original. PLACE is not, however, prevented from developing materials, software and work results and to hand them over to third parties for use which are similar to the exclusive material supplied to the customer. Otherwise, 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 is generally granted rights of use of the type and to the extent that corresponds to the license and use conditions of the third parties.
6.8 Except for the granting of exclusive rights of use, the Customer shall notify PLACE immediately in writing if third parties wish to access the software or work results; he shall inform third parties of PLACE's ownership of rights and of the possibly only conditional and limited rights of use of his own.
6.9 If PLACE does not hand over the software to the customer but merely acts as host of the cloud-based application, the additional contract processing contract becomes effective according to the annex to the contract. In addition to the data ownership rights, the security standards on the part of PLACE and possible subcontractors are regulated there.
§ 7 Warranty/claims for defects
7.1 The following provisions for claims for defects/warranty shall apply to services of PLACE which are rendered on the basis of contracts of sale or contracts for work and services. If the services are subject to service contract law, PLACE may also demand the application of the following provisions in case of defined delimitable work results.
7.2 Defects within the meaning of the warranty are exclusively reproducible errors whose cause lies in quality defects of PLACE's services including the services of subcontractors purchased by PLACE or the program modules introduced by PLACE. No defect is therefore a functional impairment resulting from hardware defects, defects of the standard software, environmental conditions, faulty operation, defective data, etc. PLACE points out that even minor changes of the software may lead to considerable, unforeseeable disturbances in the operation of the program concerned and other programs. The customer is therefore expressly warned against unauthorized modifications of the programs; the customer bears the risk in this respect alone.
7.3 The Customer shall immediately inspect all of PLACE's services and report any defects in writing with a detailed description. The Customer's project manager shall take all necessary measures within the bounds of reasonableness to identify, isolate, and document defects. This includes the preparation of a defect report, system logs and memory dumps if applicable, the provision of the affected input and output data, interim and test results and other documents suitable for illustrating the defect. In case of warranty the customer shall provide PLACE with all available information and support PLACE in the removal of defects.
7.4 PLACE may initially provide warranty by subsequent performance. Subsequent performance shall be effected at PLACE's option by providing a new program or documentation version or by PLACE showing possibilities to avoid the effects of the defect. Not in every case a complete elimination of the error is possible by subsequent performance. The customer shall also accept a new program version if this leads to an acceptable adaptation effort.
7.5 Defects are classified by the contracting parties as follows:
- Category 1: The service cannot be used. The error cannot be circumvented with organisational or other economically justifiable means.
- Category 2: The use of the service is impaired, but can essentially be done. The fault can be circumvented with organisational and other economically justifiable aids.
- Category 3: The failure has no significant impact on functionality and usability of the performance. The use of the service is not or only insignificantly restricted.
7.6 If the subsequent performance finally fails after more than two attempts despite a reasonable period of grace set in writing, the customer has the right to reduce the remuneration or to rescind the contract at his discretion. Other warranty rights are excluded, e.g. reimbursement of expenses for rectification of defects by third parties, new delivery, contract costs.
7.7 If the cause of the defect is not recognizable to the customer, PLACE will investigate the cause of the defect. If PLACE proves that the defect cannot be attributed to it, especially because unsuitable hardware has been used or the defect is due to the customer's intervention, 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, to the extent that the law requires the customer to set a time limit for performance or subsequent performance and is not dispensable in individual cases, has specifically named the complaint to PLACE and specifically reprimanded the breach of contract. Furthermore, the customer must have threatened together with the setting of the deadline to reject PLACE's performance after the unsuccessful expiration of the deadline and to claim damages instead of performance and/or to withdraw from the contract. If PLACE responds to the Customer's request for removal in order to eliminate the disturbance, the Customer shall, in order to avoid legal uncertainty, finally declare within 10 working days after the expiry of the set time limit at PLACE's request whether he will adhere to the existing contract.
7.9 If third parties assert industrial property rights against the Customer, the Customer shall notify PLACE immediately in writing. PLACE shall, at its option and in consultation with the Customer, defend or satisfy the claims. PLACE may exchange the affected services for equivalent services in accordance 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 defends against the claims of third parties at its own expense and indemnifies the customer from all costs and damages associated with the defense against claims, whereby the indemnification is limited by the provision in § 8 (Liability) and as far 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
- 1 year for material defects;
- 1 year in the case of defects of title, if the defect of title does not lie in a right in rem of a third party on the basis of which the delivered system or software can be demanded to be returned, and
- otherwise in accordance with the statutory provisions.
If a material or legal defect was deliberately concealed or if intent, fraudulent intent or gross negligence exists, 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 for damages and/or compensation for futile expenditure by the customer, irrespective of the legal nature of the claim.
8.2 PLACE shall be liable for simple negligence, default, impossibility and other forms of fault-based liability only if an obligation is violated, the observance of which is essential for achieving the purpose of the contract (cardinal obligation), as follows
- The liability is limited in nature to such damages that could typically be expected to occur within the scope of this contract at the time of the conclusion of the contract.
- Liability for financial losses 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 from warranty and liability are limited 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 on the part of its legal representatives and/or executives and/or for intent. For the gross negligence of other employees and/or vicarious agents PLACE shall be liable only to the extent and in accordance with the liability for simple negligence pursuant to § 8.2. Notwithstanding the above provisions PLACE shall be liable for damages caused by default based on gross negligence to 100 % of the contract value and absolutely up to a maximum of EUR 750 k.
8.4 Liability for loss of data is limited to the typical recovery effort that would have been required for regular and risk-related data backup measures. Otherwise, § 254 BGB (German Civil Code) applies to defective data backups by the customer.
8.5 If PLACE also provides software as a hoster, the order processing contract attached to the contract shall apply additionally.
8.6 The liability for damages resulting from injury to life, body or health, according to the Product Liability Act, due to the absence of warranted characteristics or the absence of guaranteed characteristics and/or due to guarantees in the sense of § 443 BGB or § 639 BGB remains unaffected by the above provisions.
§ 9 Secrecy, safekeeping
9.1 The contracting parties undertake to treat as confidential all information and documents received from the respective other contracting party or becoming known to them during the execution of the contract. They may not be made available to third parties not involved in the execution of the contract. The contracting parties shall keep and secure these items in such a way that misuse by third parties is excluded.
9.2 Not covered by the obligation of secrecy are 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 him by third parties. The obligation of secrecy shall also apply beyond the time of termination of this contract.
9.3 PLACE is permitted to use project names and customers for marketing purposes.
§ 10 End of contract, termination
10.1 The customer may terminate contracts for work and services at any time. In this case, the statutory regulation (§ 649 BGB) shall apply.
10.2 In the case of continuous obligations without a defined end of contract, each contracting party may, unless otherwise contractually agreed, terminate the contract in writing at the end of a month with a period of notice of three months.
10.3 Each contracting party may terminate the contractual relationship for good cause. The termination must be in writing to be effective. Good cause shall be deemed to exist in particular if the other contracting party ceases payments, if it files for insolvency or comparable legal proceedings, or if such proceedings are opened or their opening is refused for lack of assets;
claims of the other contracting party are seized and the seizure is not lifted within two weeks.
Termination for good cause must be preceded by a written warning with threat of termination and setting of a deadline, unless the delay would be unreasonable for the party terminating the contract.
§ Section 11 Conciliation
11.1 The contracting parties agree that in the event of any differences of opinion in connection with the contractual relationship which they cannot resolve among themselves, the arbitration board of the German Society for Law and Informatics e.V. (Schöne Aussicht 30, 61348 Bad Homburg, Germany) to resolve 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 a binding obligation to establish facts and that legal recourse to the state courts remains open.
11.2 In order to enable arbitration, the contracting parties mutually waive the defence of the statute of limitations for all claims arising from the life facts in dispute from the request for arbitration until one month after the end of the arbitration proceedings. The waiver causes the suspension of the limitation period.
§ 12 Final provisions
12.1 The customer's data that become known within the scope of the contractual relationship may be stored at PLACE for internal purposes.
12.2 All changes and amendments to the contract must be made in writing to be effective. This written form requirement can only be waived by the contracting parties themselves expressly and in writing. The contracting parties shall also satisfy the written form requirement by sending documents by fax and e-mail. Attachments are an integral part of the contract.
12.3 Should any provision of these GTC or the contract be or become invalid or incomplete, the remaining content of the contract shall not be affected. The contracting parties shall replace the invalid provision by a provision which comes closest to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to contractual loopholes.
12.4 All legal relations between the contracting parties are subject to German law, excluding the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes in connection with this contractual relationship is Stuttgart. PLACE shall also have the right to sue at the Customer's place of jurisdiction or at any other place of jurisdiction competent under national or international law.
Special Conditions for Work Services (BB Works)
§ Section 1 Scope of application
PLACE provides work services exclusively in accordance with the present Special Terms and Conditions for Work Services ("BB Works"). In addition and in addition, the General Terms and Conditions (GTC) shall apply.
§ 2 Specifications and project phases
2.1 As a rule, PLACE renders services on the basis of the customer's requirements and specifications (functional specifications). The customer has verified that the requirements set forth in the requirements specification or service specifications meet his wishes and needs.
2.2 Insofar as the requirements for the services are not specified independently by the customer, PLACE is prepared to support the customer in the preparation of the specifications or service specifications or to prepare the specifications or service specifications independently against separate assignment and remuneration. The requirements specification jointly or exclusively prepared by PLACE will then be checked and approved by the customer. If the customer discovers defects, gaps or contradictions during the examination, he shall notify PLACE immediately, and PLACE shall rectify the requirements specification. If the rectifications do not constitute subsequent performance, PLACE may demand payment for them on a time and material basis. The specification sheet is the binding basis for the performance of the services. Section 3 BB-Werk shall apply to modifications.
2.3 If necessary, the contracting parties shall agree on further milestones and performance stages within the scope of project development and implementation, upon achievement of which the customer shall review and approve the performance status. In this context the respective performance status shall be deemed accepted at the latest one week after PLACE has presented the respective work results or notified the achievement of the performance status, unless the customer gives written and comprehensible notice of defects.
§ 3 Changes and extensions (change requests)
3.1 The contracting parties may demand in writing changes and additions to the agreed services. PLACE may refuse to execute a customer's request for changes or extensions if the changes or extensions are not feasible or if PLACE cannot reasonably be expected to execute them within the scope of its operational performance.
3.2 The customer will order the analysis of a change request. PLACE shall determine the effects on the agreed scope of services and any necessary changes to the schedule within a period to be agreed by the contracting parties and shall present them in writing in a supplementary offer.
3.3 PLACE may demand payment 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 request for modification. Unless otherwise provided for in the supplementary contract, 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 shall be agreed in writing in an addendum to the contract. If the contracting parties do not agree on a contractual adjustment within two weeks after receipt of PLACE's supplementary offer, PLACE shall execute the contract without considering the desired change.
§ 4 Project management
4.1 Each contracting party shall nominate a project manager (if applicable also its representative) who shall be responsible for the project and the implementation of the contract and shall take the necessary decisions.
4.2 The project managers as well as their respective deputies are authorized and entitled exclusively alongside the management to make all project-relevant decisions and to make 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 shall become binding for both parties if PLACE hands them over to the Customer and the Customer does not object to the minutes in writing within one week with reasons.
§ 5 Acceptance
5.1 In the case of contracts for work and services which do not involve the delivery of movable goods to be manufactured or produced, the contracting parties shall carry out an acceptance test. The customer shall submit the acceptance test in writing as soon as the service has been rendered essentially correctly, completely and free of defects. The customer will only refuse acceptance if the services have substantial defects or defects that cannot be repaired. The customer shall 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 shall jointly prepare a protocol which shall include 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 General Terms and Conditions. The Customer shall declare acceptance if no Category 1 defect has occurred. Category 2 errors will be eliminated during the acceptance test if possible. Category 2 and 3 defects remaining after acceptance will be remedied in the course of subsequent performance.
5.3 Acceptance shall also be deemed to have been declared if the customer expresses his approval of the service in another way, e.g. by putting it into use in productive operation or by keeping silent in response to a request for acceptance (in each case for longer than one month) or by 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. PLACE may also demand that the customer declares partial acceptances for delimitable parts of the performance. By a partial acceptance the customer declares his agreement with the respective service result. In the case of overall acceptance only a check is made whether the object of the accepted partial area works in interaction with the objects of the other project areas. Partial acceptances that have already taken place remain unaffected by the success of the final acceptance.