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 services by PLACE in the Lean Implementation and the introduction of our Lean Software within the scope of service contracts. In the 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 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, the project documents and other appendices designated as binding and, in the case of work performances, the specifications (cf. § 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 clarify 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 inform the Customer of this effect in each case.
2.5 Statements and representations in product and project descriptions, documentation, etc. do not constitute a guarantee declaration 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 itself into developments or adapts its 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 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 with all information required for the execution of the contract in due time, 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 identify and name defects. PLACE does not waive the objection of delayed examination and notification in any case.
3.2 As far 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 e.g. employees, work rooms, the corresponding IT environment, telecommunication facilities and data in due time and to the necessary extent 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 back up his data, check the programs, diagnose malfunctions and take other appropriate safety precautions in accordance with the state of the art.
3.4 In 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 properly 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 shall be invoiced according to the respective valid price list. 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 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. industrial 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 in 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 shall 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 supplementary 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 current 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 the Contracting Parties have agreed otherwise, 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 additional work per day shall be remunerated on a pro rata basis. A 50% surcharge shall be added for work on weekends and public holidays as well as for night work (from 8:00 p.m.). The 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 accommodation costs 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 must 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 shall be entitled not to provide any further deliveries and services until payment has been made. PLACE will notify the Customer 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 defence 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
6.2 The Customer may load software and work results into the working memory and onto 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. 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 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 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 and 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 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 factually unrestricted right of use and ownership. In this case, the customer shall be entitled to reproduce, translate, revise, distribute, make available to third parties for distribution, 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 as copies or originals. However, PLACE is not prevented from developing materials, software and work results and from providing them to third parties for use which are similar to the exclusive material supplied 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 delivers software created by third parties to the Customer, 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.
6.8 Except for the granting of exclusive rights of use, the Customer shall immediately notify PLACE in writing if third parties want 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 PLACE's services which are rendered 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 whose cause lies in quality defects of PLACE's services including the services of subcontractors purchased by PLACE or PLACE's own program modules. Therefore, no defect is a functional impairment resulting from hardware defects, defects of the standard software, environmental conditions, incorrect operation, defective data, etc. PLACE points out that even minor changes of the software may lead to considerable, unforeseeable disturbances in the running of the respective program and other programs. The Customer is therefore expressly warned against unauthorized modifications of the programs; the Customer bears the risk alone in this respect.
7.3 The Customer shall inspect 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 reason to identify, limit and document 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 shall provide PLACE with all available information and support the elimination of the defect.
7.4 PLACE may first provide warranty by supplementary performance. PLACE may choose to remedy the defect by providing a new program or documentation version or by showing ways to avoid the effects of the defect. Not in every case a complete elimination of the defect 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 are classified by the contracting parties as follows:
- Category 1: The service cannot be used. The error cannot be circumvented by organisational or other economically justifiable means.
- Category 2: The use of the service is impaired, but can essentially take place. The defect can be circumvented by organisational and other economically justifiable means.
- 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 responds to the Customer's request to remedy the disruption, the Customer shall, in order to avoid legal uncertainty, finally declare within 10 working days after the expiry of the set time limit upon PLACE's request whether it will adhere to the existing contract.
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 which 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 the 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, the compliance with which is essential for the achievement of 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 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 the gross negligence of its legal representatives and/or executive employees and/or for intent. PLACE shall only be liable for the gross negligence of other employees and/or vicarious agents to the extent and in accordance with the liability for ordinary negligence pursuant to § 8.2. Notwithstanding the above provisions, PLACE shall be liable for damage caused by delay due to gross negligence to 100 % of the contract value and absolutely up to a maximum of EUR 750k.
8.4 Liability for data loss 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 shall apply additionally.
8.6 Liability for damages arising from injury to life, limb 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 execution 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 are not covered by the confidentiality obligation. The confidentiality obligation shall also apply beyond the date of termination of this contract.
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, each contracting party may terminate the contract with three months' written notice to the end of the month, unless otherwise agreed in the contract.
10.3 Each contracting 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 suspends 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 Conciliation
11.1 The contracting parties agree that in the event of any disagreement in connection with the contractual relationship which they are unable to settle among themselves, they shall call upon the arbitration board of the German Society for Law and Information Technology e.V. (Schöne Aussicht 30, 61348 Bad Homburg) in order to settle the dispute in whole or in part, either temporarily or permanently. 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 mutually waive the defence 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 suspends the statute of limitations.
§ 12 Final provisions
12.1 PLACE may store the Customer's data disclosed within the scope of the contractual relationship for internal purposes.
12.2 All amendments and additions 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 contracting parties 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 applies 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 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 Performed (BB-Werk)
§ 1 Scope of application
PLACE provides work services exclusively in accordance with these Special Conditions for Work Services ("BB-Werk"). In addition and supplementary, the General Terms and Conditions (GTC) shall 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 Customer 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 specifications 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 remuneration for them according to the time and effort involved. The performance specification is the binding basis for the performance of the services. For modifications §3 BB-Werk shall apply.
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 shall be deemed accepted at the latest one week after PLACE has submitted 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 Contracting Parties may request changes and additions to the agreed services in writing. PLACE may refuse to execute a request for changes or extensions by the Client 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 to be agreed by the contracting parties and present them in writing in a supplementary offer.
3.3 PLACE may demand remuneration for the examination of a request for modification or extension and for the preparation of supplementary offers on a time and material basis. 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 to the contract within two weeks after receipt of PLACE's supplementary offer, PLACE will execute the contract without taking the request for amendment into account.
§ 4 Project management
4.1 Each contracting party shall appoint a project manager (and, if necessary, his deputy) 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 exclusively authorized and entitled, in addition to 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 which do not involve the delivery of movable items to be manufactured or produced, the contracting parties shall carry out 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 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 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 mutual agreement by the contracting parties according to the categories specified in § 7.5 of the GTC. The customer will declare acceptance if no category 1 error has occurred. Category 2 errors will be remedied during the acceptance test if possible. Category 2 and 3 errors remaining after acceptance will 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 manner, e.g. by putting the performance into 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 will only be 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.