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General Terms & Conditions (GTCs)

General Terms & Conditions (GTCs)

for Commercial Transactions

The client and contractor are business entities

Valid from 24/02/2016

1. Scope of application
1.1. These General Terms and Conditions (‘GTC’) apply to all contracts, deliveries, services, orders and assignments, including in relation to future business transactions with
mindsquare GmbH in the areas of software, programming and services. Upon written confirmation of the order, the client accepts these GTC.
1.2. The GTC of mindsquare GmbH shall apply even if contradicted by the client with reference to its own terms and conditions. Such contradictions are hereby expressly rejected.
1.3. Deviations from these GTC, as well as supplementary agreements and ancillary agreements, are only valid if they have been agreed in writing or confirmed by mindsquare
GmbH in writing.
1.4. The client will be notified of any changes to the GTC by email or post at least four weeks before they take effect. If the client does not object to the changes within one month of
delivery, they shall be deemed to have been accepted. If the client objects in a timely manner, mindsquare GmbH shall be entitled to terminate the contract with the client by
providing two weeks’ notice.
1.5. These GTC can be accessed online here.
2. Conclusion of contract
2.1. Depending on the scope of the contract, the orders placed with mindsquare GmbH are divided into the following two areas: design and creation of software in the SAP environment,
and provision of qualified services in the SAP environment. More detailed information can be found in the individual contracts concluded with the client.
2.2. Service agreements are concluded between the client and mindsquare GmbH in writing on the basis of an offer or a consultation.
2.3. Changes that the client makes to the content of the service description on which an offer is based must be confirmed in writing by mindsquare GmbH.
2.4. Quoted prices are non-binding and subject to change. mindsquare GmbH reserves the right to refuse orders.
3. Service description / scope of services
3.1. The nature and scope of the services are agreed individually. The client must check and confirm that the service description is correct and complete.
3.2. If mindsquare GmbH provides free services, it may at any time discontinue them or make them subject to payment after prior notice. If the client has a data processing officer,
they must assist mindsquare GmbH with the provision of the services. Furthermore, the client must provide all information and documents that are needed for providing the
services.
4. Special services
4.1. Additional services due to changes requested by the client, special requests or changes which are needed after conclusion of the contract and go beyond or affect the agreed
scope must be paid for separately. A list of these will be created and the client will be invoiced for them, provided that the client has been informed in advance of the additional
work and the resulting costs.
4.2. Payment of the agreed fee shall cover all incidental, travel and accommodation expenses incurred in connection with the order. Travel time is considered working time.
5. Third-party providers
5.1. If external services are required in order to perform the contract, mindsquare GmbH will inform the client.
5.2. External services may relate to purchasing hardware and software or awarding contracts for work and services to third parties.
5.3. mindsquare GmbH is entitled, at any time and without notice, to change service providers and vicarious agents assigned in connection with performing the contract, provided
that this does not result in any disadvantages for the client.
6. Prices and payment terms
6.1. All offers and prices are cash prices and are non-binding and subject to change. They do not include VAT. Unless agreed otherwise, the invoice amounts are payable as follows:
a. 1/3 immediately after placing the order
b. 1/3 on delivery or completion of the service
c. 1/3 after acceptance, but no later than two weeks after completion of the service
6.2. The costs associated with purchasing hardware components or external services will be invoiced directly to the client within seven days and must be paid on time.
6.3. The rectification of defects caused by improper use is not included in the flat-rate price and is invoiced on a time and material basis.
6.4. Quotations are based on the information provided by the client. They are non-binding, and may be higher or lower if orders or invoices are issued at a later point in time. The
client will be informed of any price changes; if a price increases by more than 20%, the client may withdraw from the contract or reduce the final scope. If the right to cancel is
exercised, any services used up until the point of cancellation must be paid for.
6.5. If hourly rates are applied, each quarter-hour commenced will be charged for in full.
6.6. Goods and services provided by mindsquare GmbH shall remain the property of mindsquare GmbH until the invoice amount has been paid in full.
6.7. A payment will only be deemed to have been made once mindsquare GmbH has access to the funds; in the case of cheques, as soon as it has cleared; in the case of direct
debit, as soon as the amount has been credited to an account of mindsquare GmbH.
7. Payment delays
7.1. A payment delay arises when the payment deadlines specified under VI. of these GTC or on the individual invoice are exceeded.
7.2. If a client falls into payment arrears, mindsquare GmbH may refuse to continue fulfilling the order after notifying the client in advance. Any costs incurred up until then will be
invoiced accordingly.
7.3. mindsquare GmbH is entitled to charge late-payment interest amounting to 8% above the base rate set by the Deutsche Bundesbank from the date on which the payment
became overdue. mindsquare GmbH reserves the right to assert further claims.
7.4. If the payment terms are exceeded by 30 days, if the client ceases making payments, or if circumstances become known which call the creditworthiness of the client into question,
all payments under the business relationship with mindsquare GmbH shall become due and payable immediately. In such case, further services will only be provided against
payment in advance. Furthermore, mindsquare GmbH is entitled to withdraw from unfulfilled contracts without prejudice to further claims.
8. Content / licence, copyright and usage rights
8.1. The client warrants that it is in possession of the licence rights for the software to be installed; the client alone is liable for any copyright infringements as well as for meeting the
corresponding obligations.
8.2. The client shall release mindsquare GmbH from all third-party claims relating to the data provided by the client.
8.3. The IP rights for any software or software components developed by mindsquare GmbH shall remain permanently with mindsquare GmbH. Use by the contracting party itself is
always permitted; sharing, however, shall require the prior consent of mindsquare GmbH.
9. Data protection, data backup and transmission
9.1. The contracting parties are obliged to maintain confidentiality over all business and operational matters that they become aware of, as well as over all documents, data and
information from the business domain of the other contracting party, which they have received within the context of performing the contract and which are neither publicly nor
generally accessible. This obligation shall continue to apply after the contract has ended.
9.2. mindsquare GmbH is entitled to process all data relating to the business relationship with the client in accordance with the Federal Data Protection Act.
9.3. If mindsquare GmbH copies and archives data as a backup copy within the context of the contractual relationship and, if necessary, stores it after the contract has ended,
mindsquare GmbH is obliged to keep any unpublished data confidential and not make it accessible to third parties.
9.4. Data, documents and templates of any kind in digital or printed form or on data carriers are sent at the client’s own risk. The client must prevent potential loss of data by making
backup copies beforehand.
9.5. The tools used by mindsquare GmbH to defend against viruses or to protect against access by unauthorised third parties are applied to the best of mindsquare GmbH’s
knowledge and belief using the latest software. However, mindsquare GmbH is unable to provide any guarantees in relation to security.
9.6. If work is carried out on computer systems (both hardware and software) and/or on the client’s peripheral devices within the context of an order, the client is obliged to back up
the data before use. mindsquare GmbH assumes no liability in this respect.
10. Delivery and performance periods
10.1. Delivery and performance periods are only binding if confirmed in writing by mindsquare GmbH. All delivery periods and dates are approximate, unless confirmed as binding in
writing. The periods begin upon receipt of the order confirmation; partial deliveries are permissible and can be invoiced separately.
10.2. If the times are not met for reasons attributable to mindsquare GmbH, the client is entitled to withdraw from the contract or to demand a reasonable price reduction. If deliveries
are withheld for reasons relating to the client’s creditworthiness, this shall not constitute a delay in delivery.
10.3. The client must ensure that the deadlines can be met by providing all necessary documents in a timely manner. The consequences of delays and cost increases caused by
incorrect, incomplete or subsequently changed details must be borne by the client.
10.4. mindsquare GmbH is not responsible for events resulting from force majeure or disruptions relating to technical services or assigned third parties. Such events shall lead to the
delivery and performance periods being extended accordingly. Both the client and mindsquare GmbH shall have the right to withdraw from the contract if the delivery period is
extended by more than three months for one of the above reasons.
11. Contract term and cancellation
11.1. The contractually agreed contract term and cancellation conditions apply for individual orders.
11.2. Cancellation must be made in writing. With regard to whether and when the cancellation notice was received, the burden of proof rests with the terminating party. The cancellation
must be confirmed in writing by mindsquare GmbH in order to be valid.
11.3. If changes to these GTC or the price lists of mindsquare GmbH result in disadvantages for the client, the client shall have the right to terminate the contract without notice within
14 days of being informed of the changes. This shall not affect the client’s obligation to pay for the services that have been provided up to the point of cancellation.
12. Acceptance
12.1. Parts of the provided services must be accepted and approved by the client upon receipt. This is done by means of a service or delivery note, a corresponding declaration, or at
the request of mindsquare GmbH within two weeks after the date of the request. If the client does not accept the items within this period, they shall automatically be deemed to
have been accepted (Art. 640 para. 1 clause 3 BGB – German Code of Obligations). If the items cannot be accepted due to their nature, they shall automatically be deemed to
have been accepted upon completion of the work.
12.2. Partial acceptance does not change the terms of payment under 6.1. c. If acceptance does not take place only in parts, this shall not give rise to a right of retention in relation to
the contractually agreed conditions.
12.3. Any defects that occur must be reported to mindsquare GmbH by the client (in writing and sufficiently documented) within 14 working days after delivery to the client. If mindsquare
GmbH does not rectify the defect, the client may demand that the contract is cancelled or the price is reduced by an appropriate amount; in such case, the client shall not be
entitled to any further claims. However, mindsquare GmbH must have been given a second opportunity to rectify the defect. If a defect is not notified within the aforementioned
period, the provided services shall be deemed to have been approved.
12.4. A request by the client to have a defect rectified shall not affect the obligation to meet the contractual conditions, especially payments due.
12.5. Any rectifications or repairs must be documented by mindsquare GmbH and confirmed by the client. mindsquare GmbH is generally free to decide how and where to rectify the
defect. mindsquare GmbH is under no obligation to be continuously present on the client’s premises when rectifying defects. If a client expressly requests the physical presence
of a mindsquare GmbH employee for any reason, mindsquare GmbH may charge the usual daily rate for this.
12.6. If the client withdraws from the contract, or if the client does not accept the goods, or only partially accepts them, it shall be in default of acceptance. In the event of a default of
acceptance, mindsquare GmbH is entitled to insist on performance of the contract or may demand compensation for non-performance. mindsquare GmbH may demand 50% of
the agreed contract price as compensation.
13. Warranty
13.1. A warranty of six months from the day of delivery is granted for services, provided that the client has not caused the damage itself through gross negligence. In the event of
claims by the client under the warranty or liability obligations, mindsquare GmbH is entitled to attempt to rectify the defects first. If repeated attempts at rectification have been
unsuccessful, the client may choose to exercise its right to withdraw from the contract or to demand a reduction in price.
13.2. The provisions under 12. 5. apply accordingly.
13.3. Any warranty obligation shall lapse in the event of blatant operating errors or in the event of improper or deliberate interference with hardware, computer or network configurations.
13.4. Before the services are provided, the client must create backup copies of all files that it uses, in order to protect against data loss. mindsquare GmbH does not warrant or
guarantee that computer configurations made by the client will be maintained in the their existing form.
13.5. mindsquare GmbH must be notified immediately of any defects and damage. The client must take all necessary measures to prevent and minimise damage. The client must
make it possible for mindsquare GmbH to detect and eliminate defects and must grant access to its premises and facilities for this purpose. If the client is responsible for
malfunctions and damage, mindsquare GmbH must be reimbursed for all expenses incurred in connection with determining the cause and repairing the fault or damage.
13.6. If, during the course of the work, it becomes clear that it will be impossible to fulfil the order due to technical or legal reasons, mindsquare GmbH is obliged to inform the client
immediately. In such case, each contracting party is entitled to cancel the order. The costs and expenses incurred for the work performed by mindsquare GmbH up until that
point must be covered by the client.
14. Liability and claims for damages
14.1. Claims for damages against mindsquare GmbH due to impossibility, culpa in contrahendo and tort are excluded. The liability for characteristics assured in writing by mindsquare
GmbH remains unaffected. In addition, mindsquare GmbH assumes no liability for lost profit and indirect damage or other financial loss, regardless of whether these are incurred
by the client or third parties. Gross negligence and intent are the only exceptions to this.
14.2. Liability and claims for damages in the event of intent or gross negligence are limited to the order value. Liability is also excluded if the client has insurance cover.
14.3. mindsquare GmbH is not liable in the case of force majeure or events that make the services of mindsquare GmbH more difficult or impossible. In particular, this includes official
regulations, failure and malfunction of communication networks, traffic and operational disruptions, strikes and lockouts.
14.4. mindsquare GmbH assumes no liability for software and/or drivers installed on behalf of the client, nor for consequential damage resulting from the installation or modification of
hardware, unless mindsquare GmbH acts with intent or gross negligence. The client and mindsquare GmbH shall agree a reasonable timeframe for rectifying any consequential
damage.
14.5. The client is obliged to back up data before using the services of mindsquare GmbH. In the case of configuration services and advice, mindsquare GmbH assumes no liability
for data loss suffered by the client, unless mindsquare GmbH has caused the destruction of the data through intent or gross negligence.
15. Miscellaneous provisions
15.1. If an employee switches from the contractor to the client during the course of a client project or within 12 months of its completion, this will be considered an employment
relationship brought about by the work of the contractor, for which the client will then be obliged to pay a commission. Acceptance of this mediation work of the contractor will be
irrefutably presumed if the client has approached the employee in question directly or indirectly. The commission shall consist of a fixed component of EUR 7,500.00 plus a
variable component amounting to three gross monthly salaries of the employee. The variable component of the commission will be reduced by 1/12 for each month that the
employee has worked for the client.
16. Final provisions and place of jurisdiction
16.1. Should individual provisions of the contract or these GTC be invalid or ineffective, this shall not affect the validity of the remaining provisions. Any invalid provision shall be
replaced by an effective one which most closely corresponds to the economic sense and purpose of the original provision. The same applies to any loopholes or omissions in
the contract.
16.2. The place of jurisdiction for all legal disputes is Hanover.
16.3. Deviations from these GTC can only be agreed in writing.