General Terms and Conditions
Part I: General provisions and purchase regulations
§ 1 Subject matter
1) These General Terms and Conditions of IFE GmbH, Walderseestraße 13, 30177 Hannover (hereinafter referred to as “IFE”) govern the provision of “standard software” (Part I) and the transfer of permanent rights of use to “standard software” (Part II), services for “customization” of “standard software” (Part III), the provision of consulting services (Part IV) and support services (Part V).
2) The services and offers of IFE are aimed exclusively at entrepreneurs within the meaning of § 14 BGB.
§ 2 Contractual components, defense clause and definitions
1) In the event of contradictions, the order listed here shall apply:
a) the provisions of the order and its annexes,
b) these General Terms and Conditions,
2) Defense clause
The General Terms and Conditions of IFE shall apply exclusively. If the “Customer” also uses General Terms and Conditions, the contract shall be concluded even without express agreement on the inclusion of General Terms and Conditions. Insofar as the content of the various General Terms and Conditions is identical, these shall be deemed to have been agreed. Conflicting individual provisions shall be replaced by the provisions of dispositive law. The same applies in the event that the terms and conditions of the “customer” contain provisions that are not included in these terms and conditions. If the present General Terms and Conditions of IFE contain provisions which are not contained in the terms and conditions of the “Customer”, the present terms and conditions shall apply. Any formal reference to the “customer's” own terms and conditions is hereby expressly rejected.
3) Definitions
a) “Adaptations” means clearly formulated adaptations of the “Standard Software” agreed between the parties in a workshop, which are to be implemented by the parties as part of an adaptation project;
b) “Delivery” is the handover of the delivered “Standard Software” or the “Customizations” to the “Customer” via download; in accordance with the order, the “Customer” installs the “Standard Software” and all subsequent releases himself, or IFE installs the “Standard Software” at the “Customer's” premises or on a “System” otherwise designated by the “Customer”.
c) “Change” is any change, addition, extension or other deviation from the scope of services agreed in writing when the contract was concluded;
d) “Data” is data that the “Customer” creates with the “Standard Software” and/or collects, stores, transports, changes or deletes using the services and products provided by IFE under the contract.
e) “Third party” is any other party to whom IFE has not granted any rights to use the “standard software” or “customizations”.
f) “Documentation” means the operating and installation instructions for the “Standard Software” provided by the manufacturer. IFE shall make the “Documentation” available to the “Customer” on request via a link. Further documentation can be created by IFE on request and for a fee.
g) “FOSS” (Free and Open Source Software) designates software that was not created or supplied by IFE. Software so designated is available to everyone free of charge. However, the “Customer” must observe the content of the respective license terms to which the “FOSS” is subject. If the “FOSS” is provided by the “Customer”, IFE does not assume any warranty for “technical errors” of the “FOSS”. The regulations for “FOSS” apply in particular to the “Odoo” software.
h) “Customer” is the company that is allowed to provide the “standard software” or the “customizations” for use either to its employees, authorized employees or, by agreement, to cooperation partners.
i) “Employees” are all employees of IFE and all subcontractors commissioned with the execution of the respective order with the consent of the “Customer” or their employees. They are obliged to maintain confidentiality and to comply with data protection regulations.
j) “Standard software” is software that has not been created or adapted for the “customer”. This may consist of ready-to-use software or individual tools, libraries, etc.
k) “System” is the technical system of the “customer” on which the “standard software” or the “adaptations” are to be operated (i.e. hardware, operating system software, firmware, required peripheral systems) or the IT infrastructure required to operate the “standard software” in a data center and its use via public data networks, consisting of hardware components and system software.
l) “System environment” means the technical peripheral systems that are required for the proper operation of the “standard software” or the “customizations”. The “system environment” is described in the “documentation”. Any change to the “system environment” made without IFE's consent may result in a “technical error” for which IFE is not responsible, as IFE cannot guarantee the functioning of the “standard software” or “customizations” provided by it in any “system environment” that may exist in the future.
m) “Technical error” means that the services or performances provided to the “Customer” are not available or the “standard software” or the “customizations” deliver incorrect results. A “technical error” exists irrespective of whether IFE is obliged to rectify the “technical error” under the statutory warranty.
n) “Conclusion of contract” means the signing of the respective order by both parties.
o) Attachment “WSP” is the minutes of a workshop that may have been held before the order was placed.
4) License terms for “FOSS”
The “standard software” “Odoo” provided by IFE in the version specified in the order is “FOSS”. IFE shall inform the “Customer” of the relevant license terms for this “FOSS” and make the relevant license terms available to the “Customer”. In all other respects, the provisions set out in Part II of these General Terms and Conditions shall apply exclusively to the transfer of rights of use for “standard software”.
§ 3 Subject matter of the contract; Change
1) IFE shall provide the “Customer” with the “standard software” specified in the order. The scope of delivery shall include the provision of the standard program in object code as well as the delivery of the “documentation”, unless the provision of training services has been individually agreed in the order instead of the provision of “documentation”. If training is agreed, the provisions in Part IV shall apply.
2) The quality of the “standard software” provided by IFE is determined by the service description valid at the time of “delivery” and available to the “Customer” when the offer is sent. If this is not available in written form, the service description of the “standard software” available online shall apply, whereby IFE shall inform the “Customer” of the corresponding web addresses.
3) Representations in test programs, product or project descriptions, including on the Internet, are expressly not descriptions of the product quality within the meaning of § 434 BGB - this is not the case because the “standard software” is subject to constant adaptation, so that changes and errors are reserved there and the information can also refer to future developments.
4) A “Change” shall only become subject matter of the contract upon express written confirmation by IFE and shall be remunerated separately in accordance with the agreed price list.
§ 4 Remuneration; rights of retention; offsetting
1) The amount of remuneration depends on the order. All payment modalities such as partial payments, rebates, discounts, etc. are regulated in the order. The same applies to travel costs and expenses.
2) All prices are net prices and are subject to value added tax at the applicable rate.
3) Payments by the “Customer” are due within ten days of receipt of a verifiable invoice and must be made to one of the accounts specified in the invoice in favor of IFE.
4) The “customer” must specify in his payments which debt he is paying towards. If he fails to make this determination, incoming payments are first booked against existing ancillary claims (interest, etc.) and then against the oldest debt of the “customer”.
5) If the “Customer” fails to meet its payment obligations on time, IFE shall be entitled to claim damages for default in the amount of the statutory default interest from the “Customer” without prejudice to the assertion of further damages.
6) If the “Customer” fails to meet its payment obligations despite a reminder setting a reasonable period of grace, IFE shall be entitled, without prejudice to the rights under paragraph 5, to cease work on all work in progress on behalf of the “Customer” or in the context of the performance of continuing obligations for the services not yet paid for, as well as to withdraw from the contract in question, to take possession of reserved goods within the meaning of § 6, to declare the revocation of all rights of use transferred under reservation and to invoice the “Customer” for all costs incurred up to that point.
7) The “Customer” shall only be entitled to exercise a right of retention and to set-off to the extent that the underlying claim is recognized by IFE or has been legally established. This shall not apply if the “Customer's” claim is based on additional costs for remedying defects or completion.
§ 5 Partial performance by IFE; transfer of risk
1) IFE shall be entitled to make partial deliveries and render partial services and may use the assistance of “third parties” to fulfill its obligations if and to the extent that this is reasonable for the “Customer”.
2) The risk of accidental loss shall pass to the “customer” upon “delivery” to the “customer”.
3) Any delivery deadlines shall be specified in the order. Without express assurance, such delivery periods shall not be deemed fixed dates.
§ 6 Reservations of the transfer of rights of use and ownership
1) Until full payment of all claims arising from the contractual relationship between the parties at the time of “Delivery” (hereinafter referred to as “Assumption of Condition”), the “Customer” shall receive from IFE only a time-limited right to use the delivered “Adaptations”. If rights of use to the “Adaptations” are to be definitively transferred, this transfer shall only take place after the “Commencement of Conditions”; in the case of payment by check or bill of exchange, the “Commencement of Conditions” shall be deemed to be their encashment.
2) The “Adjustments” may not be pledged to third parties or assigned as security prior to “Entry into Force”. The “Customer” must therefore inform IFE immediately in writing if an application for the opening of insolvency proceedings is filed or if the “Adjustments” are seized by third parties (e.g. attachments) prior to the “Commencement Date”.
3) Upon assertion of the reservation, the “Customer's” right to further use the “Adaptations” shall expire, unless IFE informs the “Customer” otherwise. All program copies made by the “Customer” must be deleted in this case.
§ 7 Employees of the IFE
1) IFE undertakes to employ only qualified and reliable personnel to provide the services owed by it. IFE shall be responsible for selecting and assigning the “Employees”. The provision of services, induction and task-related training of the “Employees” shall be carried out under the responsible management of IFE. In disciplinary terms, IFE's “Employees” shall be subject exclusively to IFE's rights to issue instructions, irrespective of where the work is performed.
2) For the duration of their work for the “Customer”, the “Employees” of IFE shall have the right to remain on the premises of the “Customer” during normal working hours. The “Customer” is entitled to refuse access to the “Customer's” premises to individual “Employees” of IFE for important reasons. Unless the refusal is based on an important reason for which only IFE is responsible, IFE is entitled to demand an adjustment of the agreed deadlines and remuneration, insofar as these have become necessary due to the refusal of access and are otherwise reasonable.
3) The professional supervision of IFE's “Employees” is the sole responsibility of IFE. If the “Customer” requests the replacement of an “Employee”, stating an objectively comprehensible reason, IFE is obliged to replace this “Employee” within a reasonable period of time.
§ 8 Liability
1) IFE shall not be liable for any loss of data or damage resulting from the “Customer” not being able to work productively with the “Standard Software” or the “Customizations”, if such damage is caused by the “Customer” failing to back up the “Standard Software” or the “Customizations” and the “Data” processed with them within a reasonable period of time using a means corresponding to the current and proven state of the art.
2) The compatibility of the “standard software” or the “customizations” with existing hardware and software configurations of the “Customer” is only guaranteed for the “system environment” expressly mentioned in the respective service description. IFE assumes no liability for the compatibility of the “Standard Software” or the “Customizations” with other hardware or software configurations of the “Customer” that were changed after the order was placed by the “Customer”. Similarly, no liability shall be accepted for the compatibility of systems which may be put into operation by other suppliers at the same time as IFE's performance for the “Customer”. Deviations must be agreed separately. If the “Customer” changes the “system environment” required for the proper functioning of the “standard software” and/or the “customizations” after installation or acceptance without the consent of IFE, the “Customer” shall bear the burden of proof that the damage was not caused by the change to the “system environment”. The same shall apply if the “Customer” has modified the delivered product itself.
3) Limitation of liability
a) Insofar as agreed between the parties, liability for claims for compensation for damage caused by negligence, irrespective of the legal grounds, shall be limited to the upper limit individually agreed by the parties.
b) If there is no agreement pursuant to lit. a, liability for claims for damages caused by negligence, regardless of the legal grounds, shall be limited to the typical and foreseeable scope of damages at the time the contract was concluded.
c) The provisions of lit. a and b shall apply accordingly to claims for reimbursement of expenses or damages asserted as a result of a defect caused by negligence in the sale or manufacture of a product.
4) The aforementioned claims are subject to a limitation period of 12 months
a.) in the case of sale from the transfer of risk
b.) in the case of the creation of a work from acceptance or
c.) in the event that the damage was caused on the basis of another contractual obligation, 12 months after the moment at which the “customer” was aware of the damage or should have been aware of it without gross negligence.
5) The provisions of § 8 shall not apply in cases in which the “Customer” wishes to assert claims for damages due to injury to life, limb or health due to the defect, not in cases in which the “Customer” wishes to assert that the defect was caused by gross negligence or intent or as a result of the breach of a guarantee promise, and not in cases in which IFE has fraudulently concealed a defect. The provisions of the Product Liability Act also remain unaffected.
§ 9 Material defects and defects of title in the purchase of “standard software”; limitation period
1) Should the “Customer” have received a test version of the “Standard Software” prior to the conclusion of the respective purchase contract, the functions and features of which are identical to those of the “Standard Software” provided to him, he must notify IFE of any recognizable, obvious defects immediately, if possible in writing and if reasonable in a form that is comprehensible for IFE (obligation to inspect and give notice of defects). Otherwise, the statutory provisions shall apply with the following proviso. Deadlines according to § 377 HGB (German Commercial Code) begin, if the “Customer” installs the “Standard Software” himself, five days after “delivery”, or in a case in which the installation is carried out by IFE, immediately on the day on which the “Customer” can productively use or test the “Standard Software”. In the event of a breach of the obligation to inspect and give notice of defects, the delivery shall be deemed approved with regard to the relevant defect.
2) In the event of defects, IFE shall initially provide warranty through subsequent performance. For this purpose, IFE shall, at its discretion, either provide the “Customer” with new, defect-free “standard software” or remedy the defect in the “standard software”; IFE shall also be deemed to have remedied the defect if it provides the “Customer” with reasonable replacement solutions that avoid the effects of the defect, if the “Customer” can reasonably be expected to use them. IFE is entitled to inspect the “Standard Software” at its own discretion on the premises of the “Customer” or IFE.
3) If a number of attempts at subsequent performance appropriate to the severity of the defect fail and/or if these are not carried out within a reasonable period of time, the “Customer” shall be entitled to withdraw from the contract. Subsequent performance shall not be deemed to have definitively failed after the second unsuccessful attempt to rectify the defect; rather, IFE shall be free to choose the number of attempts at subsequent performance during the period set by the Customer, insofar as this is reasonable for the Customer.
4) If the “Customer” has incorporated the defective “Standard Software” into another item or attached it to another item, in particular installed it, connected it to other computer programs or computer systems via interfaces or similar, IFE shall not be obliged to reimburse the “Customer” for the necessary expenses for removing the defective “Standard Software” and reintegrating the repaired or delivered defect-free “Standard Software” into the “Customer's” overall system within the scope of subsequent performance.
5) Defects of title: If “third parties” assert claims that conflict with the contractual use of the “Standard Software”, the “Customer” shall inform IFE immediately. The “Customer” hereby authorizes IFE to conduct the dispute with the “third party” in and out of court on its own. IFE is obligated to defend against the claims at its own expense and to indemnify the “Customer” against all costs and damages associated with the defense against claims, unless these are based on conduct by the “Customer” in breach of duty.
6) The warranty period is 12 months and begins with the “delivery” of the “standard software”. The same period applies to other claims of any kind against IFE. With regard to damages resulting from injury to life, limb and/or health and/or the breach of a guarantee promise and/or caused by gross negligence or willful misconduct, the statutory provisions on the statute of limitations shall remain unaffected. The provisions of the Product Liability Act shall also remain unaffected.
7) If the defect in the “standard software” asserted by the “customer” is not a defect, but another “technical error”, the “customer” may order its rectification separately.
8) IFE does not assume any warranty for defects caused by “FOSS” or for defects of “FOSS” itself, if “FOSS” was provided by IFE free of charge. Under certain circumstances, the “Customer” has the option of making an agreement directly with the manufacturer of the “FOSS”, which secures him warranty-like claims against the manufacturer; IFE will inform the “Customer” of this, insofar as it has corresponding information (e.g. with regard to “Odoo”). If IFE has only demanded payment for the installation of the “FOSS” at the “Customer”, warranty claims for defects caused by this “FOSS” or for defects in this “FOSS” itself are also excluded, unless the installation service of IFE for which payment is due is defective.
§ 10 Duty to cooperate
1) Obligations to provide and cooperate arise from this provision and the provisions of the respective order as well as for customization services to “standard software”, in particular the most recent, updated version of Annex WSP.
2) General obligations to cooperate Apart from the special regulations, the following general obligations to cooperate apply to the “customer”. The “customer” must create the necessary organizational and personnel requirements for the cooperation activities; in particular, he shall
- permanently appoint a person authorized to make legal declarations, including a deputy, for the duration of the contractual relationship; a technically competent contact person, including a deputy, must also be permanently appointed for the duration of the contractual relationship;
- To the best of its ability, support IFE in the search for the cause of the error and, if necessary, encourage its employees to cooperate with the “employees” deployed by IFE;
- create the technical installation requirements for the “system environment” and maintain them during the term of the contract;
- maintain a test system that reflects the “system environment” as closely as possible. He will first install any newly delivered “standard software” on the test system and investigate whether “technical errors” occur in the test environment.
- The “Customer” shall support IFE in every respect in the fulfillment of the contractual performance obligations free of charge. The “Customer” undertakes to actively participate in the error analysis when faults occur and to document errors so precisely that a reproduction of the error is possible. This obligation is based on the “customer's” ability to identify and name “technical errors”. An error message must contain information about the type of “technical error”, the module in which the “technical error” occurred, the version number and the work that was being carried out on the computer when the “technical error” occurred. The error message must be sent by e-mail to support@ife.de. IFE will then include the error messages in the internal ticket system.
3) If it is apparent to IFE that the “Customer” is not fulfilling an obligation to cooperate in accordance with the contract, IFE will inform the “Customer” of this and point out the consequences. IFE shall not be in default as long as the “Customer” does not fulfill an obligation to cooperate in accordance with the contract. In all other respects, the statutory provisions shall apply.
§ 11 Force majeure
1) If IFE is prevented from fulfilling its obligations due to the occurrence of unforeseeable, extraordinary circumstances which it cannot avert despite exercising reasonable care, e.g. in the event of operational disruptions, official interventions, energy supply difficulties, strikes or lockouts, whether these circumstances occur in the area of IFE or in the area of its suppliers, the deadline for providing the service shall be extended by a reasonable amount, but by a maximum of eight weeks, unless the service becomes definitively impossible. If a service is also excluded after the expiry of the aforementioned deadline due to the same uninterrupted event of force majeure, this shall be deemed impossible.
2) If the above circumstances make delivery or performance impossible for more than eight weeks, IFE will be released from its performance obligations. The right of the "customer" to terminate the contract if he or she would otherwise suffer unreasonable disadvantages remains unaffected.
§ 12 Confidentiality; Data protection
1) The contractual relationship between the parties is based on mutual trust. The parties mutually assure each other that during the term of the business relationship and two years after its termination, they will treat all information, documents and data that have been brought to their attention by the other party or that have come to their attention in the course of the collaboration and that are marked or declared as "secret" ("confidential information") as trade secrets entrusted to them and will not pass them on to or use them as "third parties". This does not apply as long as and to the extent that these information, documents and data
a) were already known to the parties without any obligation of confidentiality or
b) are or become generally known without the responsibility of either party, or
(c) is lawfully communicated or provided to one of the parties by a ‘third party’ without any obligation of confidentiality or has been approved in writing for disclosure by the company provided, or
(d) must be disclosed pursuant to a legal or administrative provision or pursuant to an unappealable judicial decision, provided that the disclosing Party is notified of this requirement without delay and the scope of the disclosure is limited as far as possible.
2) “FOSS” is not “confidential information” within the meaning of this Section 12.
3) Upon request, both parties will irretrievably delete all "confidential information" or return it to the other party upon termination of the collaboration. Upon request of either party, the deletion must be confirmed in writing. The obligations under this section regarding confidentiality and data protection will remain in effect even after the contract has been fully processed.
4) These provisions apply in full to all “employees” of IFE.
5) The "customer" agrees that IFE collects, processes and uses the data required to establish, implement and terminate the contract on the basis of the statutory provisions. IFE may collect, process and use the data required for contract execution, which may include personal data. This includes the name, address and telephone number of the "customer", as well as his account details required for participation in the direct debit procedure.
6) The parties will, to the extent required by the content of an order, set out their mutual data protection rights and obligations in an agreement on contract data processing (Appendix ADV).
§ 13 General
1) Should individual provisions of this contract be invalid, this shall not affect the legal validity of the remaining provisions. The same shall apply if it becomes apparent during the execution of the contract that individual provisions are unenforceable.
2) All agreements that contain a change, addition or specification of a contractual component, as well as special guarantees and agreements, must be recorded in writing. If statements of the aforementioned type are made by representatives or assistants of IFE, they are only binding for IFE if the management of IFE gives its written consent to this.
3) The “customer” may only assign rights and claims arising from this contract to “third parties” with the prior written consent of IFE; Section 354a of the German Commercial Code (HGB) remains unaffected by this. IFE is entitled to assign the contract as a whole or individual services to companies affiliated with it within the meaning of Section 15 of the German Stock Corporation Act (AktG).
4) With regard to all legal relationships arising from this contractual relationship, the parties agree to the application of the law of the Federal Republic of Germany, excluding the provisions of private international law (IPR).
5) If the "customer" is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the registered office of IFE is agreed as the place of jurisdiction for all disputes arising in connection with the execution of this contractual relationship. Notwithstanding this, IFE is also entitled to bring an action before the court that has jurisdiction over the registered office of the "customer".
Part II: License Terms
§ 1 General
1) The subject of these license terms is the "standard software" specified in the offers. These regulations apply to all versions of the "standard software", including new releases, upgrades and updates.
2) The following license terms apply to “FOSS” only to the extent that the relevant license terms of “FOSS” do not contain any different provisions. These license terms are apparent to the “customer” from the order.
§ 2 Scope of the “Customer’s” rights of use for “standard software”
1) Sales contracts (Part I)
Unless otherwise agreed in the order, the "standard software" may be permanently stored once on a server medium and temporarily loaded once into the main memory of such a computer. If another instance, such as a VM, is to be operated, the "customer" requires another license for each instance. The server software may be operated from the data center of a provider other than IFE or by the "customer". The simple usage rights required for this in accordance with Section 69c No. 4 of the Copyright Act are also transferred to the "customer". The number of simultaneous access rights in each case is determined from the order. The "customer" is transferred non-exclusive usage rights with no time limit on the condition that the "conditions" specified in Section 6 Part I are met. The usage rights apply worldwide.
2) “FOSS”
Unless otherwise agreed in the relationship between the manufacturer of the “standard software” and the “customer” or in the “FOSS” license terms, the “customer” is entitled to use the “FOSS” to the extent described in paragraph 1.
3) Rights to the source code
If the "customer" is provided with "standard software" in source code, the "customer" is granted the non-exclusive right to edit the source code, subject to the following circumstances. No further rights are granted with regard to the source code. Circumstances in the above sense are the cessation of business operations or the liquidation of IFE as well as the abandonment of further development of the "standard software" by IFE.
§ 3 Rights of use for “standard software” modified as part of adaptation services or support
1) If the "standard software" supplied as part of adaptation services (Part III) or support (Part V) is accompanied by separate terms of use, these are decisive. Otherwise, the provisions of these General Terms and Conditions, Part II, apply.
2) If the "customer" uses "standard software" (i.e. loads it into the RAM of a computer in his possession) that is intended to replace previous "standard software" (e.g. an "update" for an earlier program version), the "customer's" right to copy this replaced "standard software" into the RAM of a computer expires. This does not apply to "FOSS". The right to permanently keep the replaced "standard software" as a backup copy for archiving purposes remains unaffected.
§ 4 Restrictions on the rights of use of the “Customer”
1) Unless otherwise provided in these license terms, the “Customer” is not entitled to modify, edit, translate, port, reverse engineer, disassemble, decompile or otherwise interfere with the “Standard Software” to determine its source code, unless this is expressly permitted by mandatory legal regulations (§§ 69d, 69e UrhG).
2) Unless expressly agreed otherwise in individual cases, the “Customer” is not entitled to correct any “technical errors” in the “standard software” itself, as long as IFE or “third parties” authorized by it offer to correct the errors at customary market conditions.
3) If the "customer" requires additional information in addition to the information contained in the "documentation" to ensure the interoperability of the "standard software" with other independently created computer programs, he will first send a request to this effect to IFE, unless expressly agreed otherwise in individual cases. IFE reserves the right to provide the necessary information. Otherwise, the provisions of the Copyright Act remain unaffected.
§ 5 Confidentiality and security obligations
1) The “Customer” must adequately protect the “Standard Software” against access by unauthorized persons.
2) The “Customer” must ensure that persons who have access to the “Standard Software” observe the license terms and restrictions on use.
3) The “Customer” is not entitled to change, remove or circumvent any proprietary rights notices on the “Standard Software” including the “Documentation”, in particular copyright notices or trademarks as well as serial numbers, license codes or security mechanisms.
Part III: Services for adapting the “standard software”
§ 1 Objectives and implementation process
1) The aim of the contract is to implement the “customer’s” desired “adjustments” to the “standard software”. The “adjustments” are implemented based on the specifications in the WSP appendix. The parties reach agreement on the procedure for creating the WSP appendix before the “conclusion of the contract”. This must either be finally determined before the “conclusion of the contract” (the prerequisite for this is that the “adjustments”, i.e. the required additional or modified properties and functions of the “standard software”, are clear at the time of the “conclusion of the contract” and that no further planning phase is to be carried out after the “conclusion of the contract”), or the parties agree on an agile methodology according to which the WSP appendix is gradually created after the contract has been concluded in a number of cycles corresponding to the scope of the project.
2) Depending on the order, the services can be provided by programming new functions (“customizing”) or by using customization options for the “standard software” without changing the code (“parameterization”) or by programming new software.
3) Depending on the scope of the services requested by the “customer”, the implementation process takes place in two phases. In the first phase, the WSP annex is created in a workshop, according to the agreement of the parties before “conclusion of the contract” or successively after “conclusion of the contract”:
a) The parties will work out the “adaptations” of the “standard software” that are technically possible and simultaneously desired and required by the “customer” for the productive use of the “standard software”. The results of the workshop will be recorded and documented in the WSP appendix. Together with the performance description of the “standard software”, the WSP appendix serves as the relevant documentation for the target state of the “adaptations”. IFE is not obliged to provide any properties and functions other than those explicitly included in these appendices.
b) The WSP appendix must therefore include, in particular, the objectives of both parties, functional characteristics, the “system environment” and application areas, development times and target environment, the identification of feasibility risks, responsibilities, schedules, costs, the “customer’s” duty to cooperate in the implementation and the acceptance procedure.
4) The "adjustments" to the "standard software" are made based on the specifications in Annex WSP. After this process, acceptance takes place and after acceptance, the "adjustments" are put into operation. The deadlines are based on the project schedule, which is constantly updated by both parties. Deadlines other than those contained in this project schedule are only binding if they have been set out in a separate agreement in writing or in text form. Changes can only be made with the consent of both parties. If IFE foresees that the dates and deadlines specified in the project schedule cannot be met for whatever reason, IFE will report this immediately after becoming aware of the reasons leading to the postponement. If a legal provision changes shortly before the planned acceptance and this jeopardizes the usability of the "adjustments" in the originally agreed form, IFE can request an appropriate extension of the implementation period for this function, without prejudice to the aforementioned reporting obligation.
5) If the "customer" wishes to implement the order taking into account new software releases of the "standard software" that should not yet be in use at the time of the workshop, the implementation of such orders is subject to IFE receiving timely and complete deliveries. However, IFE must inform the "customer" in any case of any possible delivery difficulties.
§ 2 Organisation
1) When the contract is concluded, the parties shall name the responsible persons and their deputies to each other, declaring that these contact persons are entitled and authorized to provide and receive technical information and to make and receive binding declarations of intent. After the persons involved have been mutually determined, they can only be replaced for important reasons or by mutual agreement.
2) In order to fulfil and smoothly execute the contract, a project team will be formed at the start of the project, which will include employees from both parties. Each party will appoint a project manager who will be responsible in particular for coordination within its own project team members and communication with the project manager of the other party, monitoring project progress, making short-term, urgent decisions, introducing the steering committee, forwarding changes and additional requirements during the project to the steering committee for decision and for preparing the project documentation.
3) The parties can set up a steering committee to manage and control the project implementation and the achievement of strategic objectives. The steering committee meets regularly and at the special request of the project management or a party. It makes the decisions required for the speedy implementation of the project at short notice. In particular, it also decides on any requests for changes or additions to the services to be provided as part of the project and the effects of the changes or additions on the other provisions of the contract.
4) The "customer's" contact person will provide the necessary information, make decisions or bring them about with the "customer" and provide the necessary services in order to promote the project progress in the best possible way. The "customer" will provide his cooperation through suitable, competent personnel at his own expense.
§ 3 Acceptance
1) If the "adjustments" consist of several modules or if several functionally independent "adjustments" are to be made, these will be implemented, tested and accepted successively. The option of partial acceptance is expressly agreed, provided that the "customer" can use individual "adjustments" separately for technical and functional purposes and this can be expected taking into account the purpose of the contract. The dates are based on the project schedule. The warranty periods begin separately for each module with its acceptance.
2) Acceptance of the “adjustments” is carried out against the provisions of Annex WSP. In the case of a “change”, acceptance must be carried out against the written documentation of the “change” and the updated version of Annex WSP.
3) In the case of formal acceptance, the date of acceptance is the date on which the acceptance protocol is signed by the "customer". Acceptance may not be refused unreasonably. In particular, refusal of acceptance is unreasonable if the "adaptations" essentially fulfill the functions described and no errors are caused that significantly impair the use of the "adaptations" or the "standard software" as a whole due to defects in the "adaptations". Non-essential defects are recorded in the acceptance protocol and corrected by IFE free of charge, but do not mean that the "customer" can refuse to declare acceptance.
4) If the “Customer” has not expressly declared acceptance ten working days after completion of the work, the declaration of acceptance shall be deemed to have been made implicitly if IFE draws the attention of the “Customer” to the consequences of its conduct and the “Customer” does not assert at least one significant defect within a period of five working days.
§ 4 Warranty for the creation of the work; data backup
1) In the case of material defects, IFE initially provides a warranty by means of subsequent performance. To this end, it will, at its discretion, provide the "customer" with a new, defect-free version of the "adaptations" or eliminate the defect; it is also deemed to eliminate the defect if IFE provides the "customer" with reasonable replacement solutions by supplying new "adaptations" or other software that avoid the effects of the defect, provided that their use is reasonable for the "customer".
2) IFE has the right to make a reasonable number of attempts to remedy the defect within a reasonable period of time. The subsequent performance is not deemed to have failed definitively after the second unsuccessful attempt to remedy the defect; rather, IFE is free to choose the number of subsequent performance attempts during the period set by the customer, provided that this is reasonable for the customer. IFE is entitled to make the subsequent performance dependent on the "customer" having paid at least a reasonable part of the remuneration.
3) Legal defects: If "third parties" assert claims that conflict with the contractual use of the "adaptations", the "customer" shall inform IFE immediately. He hereby authorizes IFE to conduct the dispute with the third party in court and out of court alone. IFE is obliged to defend the claims at its own expense and to indemnify IFE against all costs and damages associated with the defense of the claim, provided that these are not based on the customer's own breach of duty.
4) The right to assert withdrawal due to the existence of an insignificant defect that only insignificantly restricts the usability of the functions of the "adaptations" or due to defects in the "adaptations" of the "standard software" as a whole is excluded. The right to substitute performance according to Section 637 of the German Civil Code is excluded if IFE is able and willing to remedy the defect.
5) The warranty period is 12 months and begins with the acceptance of the agreed services. The same period applies to the limitation period for claims for damages. With regard to damages resulting from injury to life, limb and/or health and/or the violation of a guarantee promise and/or which were caused by gross negligence or intent, the statutory provisions on limitation periods remain unaffected.
6) The "customer" must take all necessary measures such as providing the computers, access to them or enabling access via remote data transmission so that any errors that occur can be rectified by IFE as quickly as possible. IFE will not be in default with the rectification of defects as long as the "customer" has not fulfilled one of these obligations to cooperate. However, IFE must inform the "customer" of this at least in text form.
Part IV: Consulting services
§ 1 Applicability, content
1) The following sections 1 to 3 of this Part IV apply only to consulting services provided by IFE; for support services, the conditions of Part V apply exclusively.
2) The terms of reference for consulting services to be specified in the contract should include:
a) the content of the service,
b) the place of performance,
c) the intended duration of the contract,
d) the regulation of project sovereignty and system responsibility,
e) if applicable, the intended completion date,
f) specific questions of remuneration,
g) if applicable, extent of documentation of the service,
h) Individual questions regarding the acceptance or acceptance of the service,
i) required cooperation obligations of the “customer”.
§ 2 Regulations for work contracts (consulting services)
1) The applicability of this provision presupposes that the "customer" has given IFE an order to carry out a specific service, that IFE is responsible for the success of the service and that the "customer" does not have project sovereignty.
2) Acceptance occurs against the terms of the order. Acceptance must be recorded in writing or by email. If the "customer" has not expressly declared acceptance ten working days after completion of the work, the declaration of acceptance is deemed to have been made implicitly if IFE informs the "customer" of the consequences of his behavior and the "customer" does not assert at least one significant defect within a period of five working days.
3) In the case of material defects, IFE initially provides a warranty by means of subsequent performance. To this end, it will, at its discretion, provide the "customer" with a new, defect-free service or remedy the defect; remedying the defect is also deemed to occur if IFE provides the "customer" with replacement solutions, e.g. by supplying new software, which avoid the effects of the defect, if their use is reasonable for the "customer".
4) If a number of subsequent performances appropriate to the severity of the defect fail and are not carried out within a reasonable time, the "customer" is entitled to assert further warranty claims. The right to assert withdrawal due to the existence of an insignificant defect that only insignificantly restricts the usability of the services is excluded.
5) The right to substitute performance according to Section 637 of the German Civil Code (BGB) is excluded if IFE is able and willing to remedy the defect.
6) The warranty period is 12 months and begins with the acceptance of the agreed services. The same period applies to the limitation period for claims for damages. With regard to damages resulting from injury to life, limb and/or health and/or the violation of a guarantee promise and/or which were caused by gross negligence or intent, the statutory provisions on limitation periods remain unaffected. Claims for reimbursement of expenses expire under the same conditions.
§ 3 Regulations for service contracts (consulting services)
1) The provisions of this paragraph assume that the project management, change management and system responsibility for the implementation of the project are the responsibility of the "customer" and that the parties have agreed that IFE's work services have been made available to the "customer" on a temporary basis without any success-related remuneration being agreed. This provision also applies if IFE provides consulting services.
2) At the request of the "customer", IFE will make "changes" to the agreed services within the scope of its operational and personnel resources. However, IFE is not obliged to do so without an express agreement. Agreed dates will be postponed according to the time required to review and implement the change requests.
3) If several performance deficiencies exist simultaneously, the "customer" is entitled to specify to IFE the priorities for elimination. IFE will keep the "customer" informed about the status and success of the elimination. If a performance deficiencies cannot be eliminated within a reasonable period of time, IFE will provide a temporary solution at the request of the "customer".
Part V: Support Services
§ 1 Subject matter of the contract
The subject of this part are "support services" relating to the "standard software" supplied by IFE, including any "adaptations" made for the "customer". "Support services" relating to software from other manufacturers and/or "FOSS" are only provided based on an express written agreement between the parties and only for an additional fee in accordance with Section 5. The exact designation of all "support programs" can be found in the PRG appendix, which may need to be updated.
§ 2 Definitions
a) “Support services” are all services to support the “customer” in the context of troubleshooting in accordance with Section 4 Paragraph 1 as well as customer support in accordance with Section 4 Paragraph 2.
b) “Support Programs” means all software supported by IFE under this Agreement in accordance with the Order Confirmation.
c) "Update" means a program version developed to correct or circumvent "technical errors" in the "standard software" that is made available to the "customer" by IFE and that has only been subjected to very limited functional tests, system tests, regression tests or other test procedures that IFE otherwise uses as part of normal quality assurance. The aim of an "Update" is to provide an error correction as quickly as possible. Each "Update" is uniquely identifiable by its version number. An "Update" can only be installed on a clearly named version of the "standard software".
d) “Working days” are weekdays from Monday to Friday. Error correction is carried out during IFE’s regular office hours from Monday to Friday from 9:00 a.m. to 5:00 p.m., excluding “public holidays”. The Berlin time zone applies.
e) “Public holidays” are those valid for the federal state of Lower Saxony; the 24th and 31st December of each year are also considered “public holidays”. They begin at 5 p.m. on the previous day and end at 9 a.m. on the next “working day”. The Berlin time zone applies.
§ 3 Requirements for “Support Services”
1) Quality assurance
Any change to the "support programs" themselves or to the "system environment" can theoretically lead to a malfunction of the "support programs". In principle, any change must be made following the process of data backup, testing the data backup, testing the new software in the old system environment / testing the old software in the changed system environment, and going live.
2) Technical requirements for remote service
The prerequisite for the provision of "support services" via remote access is access for IFE to the customer network, via which the connection to a remote desktop environment provided by the "customer" is established using the RDP protocol. The remote desktop environment must be designed by the "customer" in such a way that IFE can use the "standard software" to provide support and enable bidirectional data exchange.
3) TeamViewer / TeamViewer Host
“Support services” via remote access can also be carried out using the desktop sharing software TeamViewer. The sessions take place via an encrypted connection. Both supervised (“customer” starts a remote maintenance program) and unsupervised sessions (remote maintenance program is installed by the “customer”) are supported.
4) Deviating provisions
If the provision of the technical requirements specified in Section 3, Paragraphs 2 and 3 is unreasonable for the "customer", the "customer" can request IFE in writing to set up an alternative procedure against reimbursement of the additional costs for setup and operation and by explaining the unreasonableness. IFE can use a procedure that differs from Section 3, Paragraphs 2 and 3, provided that this is reasonable for the "customer". Time delays and/or delayed troubleshooting measures in the case of arrangements that differ from Section 3, Paragraphs 2 and 3 or in the absence of the possibility of providing "support services" via remote access at all are at the expense of the "customer", unless the "customer" is not responsible for the different arrangement or practice.
5) Changes to the technical requirements for remote access
If the "customer" makes changes to the technical requirements for remote access specified in Section 3, paragraphs 2 and 3 without informing IFE in advance in writing, the "customer" will be invoiced for work carried out by IFE to maintain functionality/operational readiness at the applicable rates in accordance with the offer. Furthermore, delays and/or delayed troubleshooting measures due to remote access failures for which IFE is not responsible will be borne by the "customer".
6) Lack of technical requirements for remote access
If the "customer" does not provide the option for remote access, IFE will charge separately for all additional costs resulting from the lack of a data connection at the usual cost rates in accordance with the offer. IFE can only plan on-site operations that become necessary due to this fact within the scope of the respective staff availability. No on-site response times can be guaranteed.
§ 4 “Support services”
1) Hotline (1st Level Support)
a) Reports of “technical errors” and other support requests are made in accordance with the agreement in the form specified in Section 10, Paragraph 2, Part I. In justified exceptional cases, the error report can also be made by telephone using the official IFE hotline number. The hotline can be reached on “working days”.
b) Support within the meaning of these regulations is any problem-related response to the presentation of a software-related problem of the "customer" in connection with the "support programs". The tasks of the hotline also include clarifying content-related and organizational questions as well as providing instructions on the functionality of the "support programs".
c) Each customer support request is documented electronically and assigned a unique case number. The 1st Level Support Team will share the documented “incidents” to the extent that the 2nd Level Support Team may need them to obtain further details or assistance regarding the reported “incidents”.
d) Before using the hotline, the “customer” must attempt to solve the problem himself within reasonable limits. In particular, he must pay attention to the “documentation” and the help function of the “standard software”.
2) 2nd Level Support
The 2nd Level Support Team is responsible for finding workarounds for the reported “incidents” or making changes to the “support programs” themselves.
Incidents caused by a change in the “customer’s system environment” are not included in the 2nd level “support services”. Such IFE services are billed separately according to the applicable fee rates in accordance with the offer.
3) Place of performance “Support services” are provided at IFE’s place of business. If necessary, “employees” will also travel to the place of business of the “customer”.
§ 5 Other services
Other services not mentioned in Section 4 will only be provided by IFE against additional remuneration in accordance with the offer.
§ 6 Obligation to cooperate
Without prejudice to the obligations set out in Section 10 of Part I and Section 3 of this Part V, the “Customer” is in particular subject to the following obligations to cooperate:
1) Access to rooms and equipment
The “Customer” will provide IFE with unhindered access to the premises and equipment without waiting times in order to carry out “support services”, keep the necessary technical facilities such as power supply, telephone connection and data transmission lines functional, ensure the device-specific environmental conditions, and in particular provide a knowledgeable contact person on site to ensure that the services to be provided are carried out promptly.
2) Updating programs and/or parts of programs
The “customer” will install the “updates” received from IFE following detailed instructions from IFE and will always follow the troubleshooting and error correction suggestions provided by IFE. The “updates” provided by IFE are installed using installation routines or by replacing individual components by appropriately trained personnel of the “customer”.
3) Confirmation of bug fix
The “Customer” should confirm proper incident resolution and/or bug fix within 14 days via Customer Support. If no confirmation is received from the “Customer”, IFE may mark the “Incident” or bug fix as confirmed after an additional 14 days.
4) Update operating system or database
It is the responsibility of the "customer" to properly maintain the software and hardware environment of the "support programs". The "customer" is advised to allow the implementation of operating system or database updates due to technical progress and/or to correct errors, which the respective suppliers/manufacturers offer as a solution to the problem or make a condition for further maintenance. The "customer" is aware that "technical errors" in the "support programs" can also be due to the operating system or database version used. If IFE can prove that "technical errors" in the "support programs" can be corrected by using new operating system or database versions, the "customer" waives his right to correct errors for these "technical errors" as long as he continues to use his older operating system or database version. The system releases apply according to the currently valid system requirements, which are available as a document on the manufacturers' websites.
§ 7 Remuneration
1) Support fees
The prices stated in the order apply. In accordance with the terms of the order, billing is carried out either on a calendar month basis based on the expenditure for the “support services” provided in the previous month or the “customer” purchases certain quotas for “support services” against advance payment.
2) Scope of support fees
The support fees apply to “support services” related to the production system.
3) Adjustment of support fees
After a period of two years after conclusion of the contract, increases of up to 5% per year in the total support fees to be paid are possible due to general cost increases. The "customer" will be informed at least three months before the increase comes into effect.
4) Absence of an “incident”
If IFE can prove that no “incident” has occurred in the case of reported “technical errors” or other “support services” used, the costs for troubleshooting and IFE’s services for troubleshooting shall be borne by the “customer”.
5) Basis for billing
If both error corrections are carried out for the “customer” that are covered by the flat-rate support fee and those that are billed separately, the service reports of the “employees” and/or the incident documentation of the IFE customer service serve as the basis for billing.
§ 8 Warranty for functional maintenance
1) The Services will not be considered defective if IFE offers the “Customer” a reasonable workaround to eliminate a defect. IFE has the right to change the “Support Programs” to eliminate the defect if the performance and usability of the “Support Programs” by the “Customer” are not affected and the change does not entail any costs for the “Customer”.
2) If IFE is unable to correct existing errors within a reasonable period of time, the "customer" is entitled to assert warranty rights. The right to withdraw or to claim damages does not exist unless the functionality of the "support programs" is significantly impaired.
3) The “Customer” shall not have the right to remedy defects himself and to demand compensation for the expenses incurred as a result, as long as IFE is willing to remedy the defects and if further efforts to remedy the defects are reasonable for the “Customer”.
4) Changes to the “Support Programs” or the “System Environment”
a) If the “Customer” or a “third party” commissioned by the “Customer” makes changes to the “Support Programs” after their installation and acceptance and IFE has not given its prior consent to this, IFE is not obliged to remedy the defect unless the “Customer” can prove that the defect was not caused by these changes and that these changes did not hinder the identification and remedy of the defect.
b) If the “Customer” requests the elimination of a material or legal defect after the support contract has been terminated, the “Customer” bears the burden of proof that the defect was caused by an error in the services provided by IFE if the “Customer” or a “third party” commissioned by the “Customer” has changed the “Support Programs” and/or the agreed “System Environment” after the termination of the contract.
5) Warranty claims expire twelve months after acceptance. This does not apply in cases where an error in the "support services" has led to damage to life, limb or health and/or the error violates a guarantee and/or the damage was caused intentionally or through gross negligence. Claims under the Product Liability Act remain unaffected.
6) If the “Customer” has not expressly declared acceptance within ten days of the provision of the services, the service shall be deemed to have been accepted if IFE informs the “Customer” of the consequences of its conduct and the “Customer” does not assert at least one significant defect within a period of five working days.
7) If it turns out that the services provided by IFE are not covered by the warranty, the "Customer" will bear the costs for the services provided, including all travel costs and expenses incurred. The costs will be calculated based on the applicable remuneration rates according to the offer.
§ 9 Term of contract, termination
1) The contract is valid for the period of time specified in the order. After this period has expired, it will be extended for a further year unless terminated in writing by one of the parties with three months' notice before the end of a calendar year.
2) The right to use the “Support Programs” granted to the “Customer” remains unaffected by termination of the Support Agreement.
3) The right to extraordinary termination remains unaffected. If the "customer" terminates the contract due to an important reason for which IFE is responsible, the support fee already paid will be refunded pro rata.
4) An important reason for IFE exists in particular in any case in which
a) the “Customer” falls more than 4 weeks behind on payment of the support fees despite a reminder;
b) the “Customer” is insolvent or insolvency proceedings have been opened against his assets, or the application for the opening of insolvency proceedings has been rejected due to insufficient assets; however, after an application for the opening of insolvency proceedings against the assets of the “Customer”, IFE may not terminate the contract due to a delay in payment of the remuneration that occurred before the application for the opening of insolvency proceedings or due to a deterioration in the financial situation of the “Customer”.
Status: 02.08.2017