General Terms and Conditions (GTC)

1. SCOPE

The General Terms and Conditions (AGB) set out below apply to contracts with customers who are not consumers (as per Section 13 of the German Civil Code [BGB]), and to future contracts covering performance of the same kind. No business terms of our customers such as deviate from our own shall become contents of the contract, and neither shall they do so as a result of any tacit consent on our part or any reference made to correspondence or other statements or notifications made or given by the customer with such business terms, or as a result of any acceptance of quotations or the rendering of our services.

 

2. ESTABLISHMENT AND CONTENT OF CONTRACTS

Our quotations for the conclusion of a contract are without obligation and non-binding, unless anything else is expressly specified therein. The scope of our services shall be determined in accordance with the description of performance valid at the time of our quotation. Descriptions of performance are not guarantees or assurances of any particular qualities of the services we provide.

 

3. PERFORMANCE OF SERVICES, AVAILABILITY

3.1 We have the right to perform services in part, unless the customer cannot reasonably be expected to accept such part-performance. We also have the right to deploy third parties in the performance of our services.

3.2 Performance deadlines will be extended by the period in which we are prevented from rendering the service or services by circumstances beyond the scope of our responsibility (e.g. industrial action, force majeure, absence of employees or outage of machinery [incl. hardware] or telecommunication lines for which we are not to blame), and by a reasonable further period (restart period) after the hindrance has come to an end. The same shall apply to any period in which the customer fails to fulfil his or her obligations to cooperate.

3.3 For server- and network-based services, the service level agreement on availability which we have provided for download on line at www.eurodata.de/AGB/ and will send on request will apply, subject to any agreement that deviates therefrom.

 

4. CUSTOMER COOPERATION

4.1 The performance of our services in conformity with the contract presupposes the performance of the necessary cooperation by the customer in conformity with the contract. If the customer fails to cooperate or fails to do so in conformity with the contract, our obligation to render services will lapse to the extent and for the period in which rendering them depends on said cooperation. The customer will bear disadvantages and extra costs insofar as they result from his or her failure to cooperate or failure to do so in conformity with the contract.

4.2 In particular, the customer shall be responsible for the timely provision of data requiring to be processed, for the completeness and accuracy of those data, and for the verification of the completeness and accuracy of work results to a reasonable extent.

4.3 The customer shall claim for any defects in our performance in a proper, detailed manner, providing the necessary information in text form and, if relevant, also stating the circumstances which led to the occurrence of the defect, its impacts and its manifestation.

 

5. DATA BACKUP BY THE CUSTOMER

If we do not undertake to assume responsibility for the storage of data for backup or archiving on behalf of the customer, the customer will be under obligation to ensure said backup taking into account the current state of technology, and making said backup at intervals appropriate to the application so that the data can be recovered at reasonable cost.

 

6. PRICES, ADJUSTMENTS, PAYMENTS

6.1 All prices – unless otherwise stated – shall be in EUR and subject to statutory VAT.

6.2 At first, we shall have the right to offset payments against the oldest debt of the customer in spite of any contrary provisions made by the latter.

6.3 We shall have the right to adjust our prices at our own discretion in the case of continuing contractual obligations in accordance with the following provisions. We shall propose a price adjustment to the customer in a legally binding way (adjustment notification). At most, we may only alter the price to the extent to which the index quoted subsequently has changed (range of alteration). The range of alteration in the case of the first adjustment is defined as the development of the index between the value published at the time when the contract was concluded and the value most recently disclosed to the customer at the time of the adjustment notification. In the case of further future price adjustments, the range of alteration shall be defined by the development of the index between the value most recently disclosed at the time of the previous adjustment notification and the value most recently disclosed at the time of the new adjustment notification. Decisive in determining the range of alteration is the index of average gross monthly earnings in Germany in the IT services sector of the economy (in quarterly figures published by the Federal Department of Statistics [StBA] in the database GENESIS – sector code: WZ08-62). If that index is no longer published, the range of alteration will be defined by the index published by the StBA which comes closest to depicting the development of average gross monthly earnings in the above-mentioned sector. The adjustment shall be binding on the customer provided that it meets the above requirements, provided that there is a period of at least six weeks between the receipt of the adjustment notification by the customer and the date on which the adjustment is to take effect as stated by us in said notification, and provided that no objection to the adjustment has been made to us in text form within six weeks following delivery of the adjustment notification although we have made special reference therein to the legal consequences of failure to object. The price will remain unchanged if an objection is filed in due form and within the period prescribed. That will not affect the rights of either party to give notice to terminate

 

7. RETENTION OF TITLE, RIGHTS RELATING TO SOFTWARE

Goods that we supply in performing a contract shall remain our property until payment has been made in full. As for our software and business management analyses, they are protected by copyright.

 

8. LIABILITY

8.1 We shall be liable for loss or damage without any contractual restrictions pursuant to the statutory regulations (i) in the case of purchase and service contracts if such loss or damage is occasioned by the absence of a quality for which we have assumed a guarantee, or by fraudulent failure to disclose a defect on our part; (ii) for malice aforethought; (iii) for damage resulting from injury to life, limb or health which has its origin in a deliberate or negligent breach of obligations by us or otherwise in deliberate or negligent behaviour on the part of a legal representative or vicarious agent of ours; (iv) for damage other than that listed in (iii) having its origin in a deliberate or grossly negligent breach of obligations by us or otherwise in deliberate or grossly negligent behaviour by a legal representative or vicarious agent of ours; (v) under the German Product Liability Act (ProdHaftG).

8.2 In cases other than those listed in para. 8.1, our liability shall be restricted to reimbursement for contractually typical and foreseeable loss or damage if said loss or damage has its origin in a negligent breach of material contractual obligations by us or by a legal representative or vicarious agent of ours. Material contractual obligations are obligations without the performance of which the contract cannot properly be fulfilled and in compliance with which the contractual partner may routinely trust.

8.3 In cases other than those listed in paras. 8.1 and 8.2, we shall not be held liable for negligence under any circumstances.

8.4 As per Section 536a (1) of the BGB, we shall not assume any liability for defects already present at the time of conclusion of the contract in respect of which no distinction is made as to actual culpability.

8.5 The plea of contributory negligence shall remain unaffected.

8.6 The above provisions of Section 8, with the exception of para. 8.4, shall apply mutatis mutandis to our liability as regards the reimbursement of futile expenditure.

 

9. FORM OF NOTICES AND DECLARATIONS BY THE CUSTOMER

Notices and declarations to be issued to ourselves or a third party by the customer (such as notifications of defects, payment reminders, the setting of extension periods, declarations of rescission, abatement or notice to terminate), must as a minimum requirement be made in text form if they are to have any validity.

 

10. CHOICE OF LAW, PLACE OF PERFORMANCE, LEGAL VENUE

The law of the Federal Republic of Germany shall apply to contracts with our customers, there being no recourse to the UN Convention on Contracts for the International Sale of Goods (CISG) or the provisions of private international law. Place of performance for the rendering of services and payment shall be Saarbrücken. Legal venue for all and any disputes with merchants, legal entities under public law or separate assets in public law arising from or in connection with the contract shall also be Saarbrücken. The above shall not apply if an exclusive legal venue is established for the claim by law.