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General Terms and Conditions

This translation is provided for information purposes only. The German version is legally binding.

§1 Parties

  • extocode GmbH is referred to as the Contractor.
  • The contractual partner of extocode GmbH is referred to as the Client.

§2 Subject matter of the contract and scope of services

These General Terms and Conditions contain fundamental provisions governing the business relationships of extocode GmbH with its Clients. They apply to the following services of the Contractor, which are listed here only in rudimentary form and are specified in detail in the service descriptions and the orders:

  • Provision of software and rights of use: Provision of the software „COD – Central Operations Dashboard" including its modules in accordance with the respective licensing terms, either for operation within the Client's infrastructure (on-premise) or for use as Software as a Service.
  • Software as a Service (SaaS): Provision of the COD software as a cloud service, hosted by extocode GmbH or a service provider commissioned by it, for use via a data connection.
  • Maintenance and support: Provision of updates, error correction and support for the software within the scope of the respectively booked service level.
  • Service and project services: Setup, configuration, integration, training and consulting in connection with the software.
  • Monitoring and operational services: Monitoring and operational support services in connection with the software, insofar as agreed.

§3 Placing of orders and recording of effort

  1. Orders are entered by the Client into the Contractor's order processing systems by e-mail or web portal as described in (Annex B), with a precise description of the order or the fault. The Contractor shall provide the Client with the access required for this purpose free of charge for the duration of the contractual relationship. Insofar as, in exceptional cases, it is technically impossible for the Client to place orders by e-mail or web portal, orders may be placed by telephone via the support hotline named in (Annex A2).
  2. The Contractor shall confirm receipt of the order without delay, stating the time of receipt and a case number.
  3. The Contractor shall record the effort incurred separately for each case and activity. Where required, the Client may independently obtain information in the ticket system about the total effort already incurred for the individual orders, stating the date and time of the activities.
  4. The Contractor shall inform the Client without delay of the activities carried out and shall, insofar as necessary/possible, pass on partial results or inform the Client of the completion of the work order.
  5. The Client shall designate for each case a responsible contact person who is able to fully support the Contractor in carrying out the necessary activities, to provide the necessary resources and to make the necessary decisions. If no contact person is named, the person reporting or making the request shall be regarded as the relevant contact person.
  6. For queries regarding ongoing cases, the case number must be stated.

§4 Change Request / additional expenditure

The Contractor shall make the recorded service hours available to the Client for review in the customer portal and shall inform the Client thereof by e-mail. If the Client does not raise objections in text form (via the customer portal or by e-mail) within 7 calendar days of provision, identifying the hours objected to, the provided hours shall be deemed acknowledged by the Client. The acknowledgement merely establishes a rebuttable presumption that the recorded number of hours is correct. The Client reserves the right to prove that the recorded hours were in fact not incurred, or not incurred to that extent.

  1. The Client is entitled to request changes to the object of delivery and/or performance even after conclusion of the contract, provided that the deviations are, on an objective assessment, technically and logistically reasonable for the Contractor, taking into account its business object, its know-how and its order situation. The Contractor shall examine the Client's change request and shall notify the Client in text form of its effects on the contractual framework. This duty of notification includes, as far as possible, a statement as to whether the requested changes are technically and/or logistically possible and expedient at all, as well as a statement on the effects of the change requests on the contractual framework agreed up to that point, such as the concept, deadlines, dates, acceptance modalities and remuneration, in the form of a quotation. The Client shall then decide without delay, vis-à-vis the Contractor, on the implementation of the changes.
  2. Upon the positive decision and agreement on the changes to the contractual conditions, the amendment of the order shall become part of the contract.
  3. In the case of change requests by the Client relating to the subject matter of the order or the execution of the order that are technical and economically insignificant for the Contractor, no change to the contractual conditions may be demanded by the Contractor.
  4. The Client shall reimburse the additional expenditure arising from the Change Request. This also includes the Contractor's expenditure in fulfilling the duty of notification pursuant to § 3 No. 1.

§5 Acceptance of work performances

  1. The parties shall agree on an acceptance date. If no acceptance date has been agreed, acceptance shall take place upon completion of the work.
  2. Work performances shall be subjected to an acceptance test after they have been provided by the Contractor. Upon completion of the acceptance test, the Client shall declare acceptance of the performance, provided that the performance is free of defects.
  3. Acceptance must be effected in text form. In the absence of a declaration of acceptance, a performance shall be deemed accepted if the Client has used it for the intended purpose for 14 calendar days outside of agreed test processes and/or procedures without giving notice of defects.

§6 Provision of software and rights of use in the case of SaaS contractual services

  1. The Contractor (hereinafter the „Provider") makes available to the Client the use of the software designated in the service description, with the scope of functions described in more detail therein and under the functional prerequisites likewise named therein. The software is made available for use by the Provider at the transfer point agreed in the service description (interface between the data network operated by the Provider and other networks). In this respect the software remains on the Provider's server. The establishment and maintenance of the data connection between the Client's IT system and the transfer point operated by the Provider is not owed by the Provider.
  2. The respective current scope of functions of the software results from its current service description. Outside of release changes, the Provider may modify the software within the scope of the technical possibilities and deploy it in the version currently offered by the manufacturer, provided that the modification of the software is reasonable for the Client, taking into account the interests of the Provider. The Client shall, however, have no claim to the deployment of a new version of the software named in the service description.
  3. The Provider shall remedy software faults in accordance with the technical possibilities. A fault exists if the software does not fulfil the functions specified in the service description.
  4. At the Client's request, the Provider shall undertake the planning and implementation of release changes. This service must be agreed separately in detail between the Client and the Provider, also with regard to any hardware and database extensions to be modified as well as the consequences for the operation of the software and the costs thereof.
  5. The Provider grants the Client the non-exclusive and non-transferable right to use the software designated in this contract within the scope of the SaaS services, as laid down in the service description. The workstations must meet the minimum technical requirements specified in the service description. The connection of the Client's workstations shall be effected via a data connection to be set up by the Client in accordance with the specifications of the service description.
  6. The software shall be made available to the Client, at its choice, in accordance with the provisions of the Service Level Agreement.
  7. The Client may only modify or reproduce the software insofar as this is covered by the intended use of the software according to the respective current service description. Necessary reproduction includes loading the software into the working memory on the Provider's server, but not the installation, even if only temporary, or the storage of the software on data carriers (such as a hard disk or similar) of the hardware used by the Client.
  8. The Client is not entitled to make the software available for use to third parties, whether for consideration or free of charge. A third party is not a person who is a vicarious agent of the Client and uses the services free of charge, such as the Client's employees, freelancers within the scope of the contractual relationship, etc.

§7 Data storage and transfer in the case of SaaS contractual services, rights of the Contractor

    1. The Client has the option of storing data on the virtual data server set up for it by the Contractor (hereinafter the Provider), which it can access in connection with the use of the software provided. The Provider merely owes the provision of storage space for use by the Client. It is subject to no safekeeping or custodial duties with regard to the data transmitted and processed by the Client. The Client is responsible for observing the retention periods under commercial and tax law. The Client undertakes not to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties.

    2. The extent of the storage space available to the Client is defined in the service description. It also explains how the data is processed. The Client may store the data on the data server within the scope of a database migration as well as within the scope of the ongoing use of the software.

    3. In the event of the migration of data from a database of the Client, the Client shall provide the Provider with the information on the database management system required for the migration, including any test data, to the extent set out in the service description, where applicable following separate arrangement, at least eight weeks before the intended migration of the data. The data to be migrated shall then be provided to the Provider on a data carrier likewise named in the service description or by means of remote data transmission at least five working days before the intended use of the data. The Provider shall support the Client in the migration of the data at the fees specified for this purpose in the price information sheet valid at the time of conclusion of the contract.

    4. The Client is not entitled to make this storage space available for use to a third party, in whole or in part, whether for consideration or free of charge.

    5. The Client grants the Provider the right to reproduce the data to be stored by the Provider for the Client, insofar as this is necessary for the provision of the services owed under this contract. It is also entitled to keep the data available in a backup data centre. In order to remedy disruptions, the Provider is furthermore entitled to make changes to the structure of the data or to the data format.

§8 Service and response times in the case of IT disruptions

  1. The Contractor is generally available for the remedy of faults and malfunctions, depending on the severity of the fault, in compliance with the response times defined below.
  2. The following disruption classes are defined:
    • -1- Malfunctions or poor response times of individual functions of a (sub-)system at individual workstations. The usability of the system remains possible here, where applicable with restrictions.
    • -2- Malfunctions or poor response times of individual functions of a (sub-)system at all workstations. The usability of the system remains possible here, where applicable with restrictions.
    • -3- Malfunction of a (sub-)system that is not materially required for maintaining business operations. The affected (sub-)system is no longer usable.
    • -4- Malfunction of a (sub-)system that is indispensable for business operations. The affected (sub-)system is no longer usable.
  3. In accordance with the disruption classes, the following response times apply:
    • -1- Commencement of remedy of the disruption within five (5) working days
    • -2- Commencement of remedy of the disruption within three (3) working days
    • -3- Commencement of remedy of the disruption on the working day after next
    • -4- Commencement of remedy of the disruption within the booked service level
  4. In order to ensure the response times, the Client shall specify the relevant disruption class when entering it into the order processing system.
  5. A working day is defined as a weekday (Monday to Friday) that is not a nationwide public holiday. The working day begins at 9:00 and ends Monday to Thursday at 17:00, and Friday at 15:00.  
  6. If the disruption is entered into the order processing system by the Client by 12:00, the day of entry shall be deemed the start of the response time. In the case of a later entry, the following working day shall be deemed the start of the response time. If an SLA 4 level has been booked, the response time shall in any event begin on the same working day after entry.
  7. Service and project work that arises is generally carried out on a working day. Where necessary within the scope of projects, other working hours may be agreed as applicable.
  8. The time of performance results, for
    • service orders within the scope of the remedy of disruptions, from the response times stated above,
    • project and other service activities, within the scope of the Contractor's operational possibilities, by agreement with the Client.
  9. Should the service and response times repeatedly fail to be met through the fault of the Contractor, the Client shall be entitled to extraordinary termination. The Client shall have no further claims against the Contractor.

§9 Duties of the Client to cooperate

    1. Responsibility for project organisation and planning as well as for project reporting shall, in principle, lie with the Client. The Client's project manager bears overall responsibility for the technically correct, timely and budget-compliant realisation of the project. The Contractor's project officer shall support the Client's project manager in this. The Contractor's project officer is responsible for leading the project team of vicarious agents deployed by the Contractor, in both technical and disciplinary respects, irrespective of the place of performance.

    2. The Client undertakes to fully support the Contractor in carrying out the activities that arise and shall provide the Contractor, free of charge, on its premises for this purpose in particular with rooms, systems and personnel as well as the necessary documents and other operational resources.

    3. The Client shall provide, free of charge, the systems and telecommunications connections required within the scope of remote access on its premises, upon request by the Contractor.

    4. The Client shall precisely specify work orders for activities and provide a precise fault description for faults that have occurred. Additional effort resulting from an inadequate description of activities or faults by the Client shall be borne by the Client. At least the following information must be provided:

  • the affected system components and users
  • delimitation of the affected system components
  • expected behaviour / actual behaviour
  • start and times of the fault

5. The Client shall ensure that, in the rooms to be entered by the Contractor and on the relevant premises, the accident prevention regulations are complied with and the necessary safety precautions are taken. The Client is responsible for damage arising from a failure to comply with these regulations.

6. The Client shall provide a suitable system for ISO 27001 (ISMS)-compliant documentation; otherwise the ISO 27001-compliant documentation shall be invoiced to the Client by the Contractor.

7. For the recording of information security incidents, the Client shall provide suitable systems (syslog server, network monitoring system, flow collector, etc.); otherwise the systems shall be invoiced to the Client by the Contractor.

 

§10 Special duties of the Client to cooperate in the case of SaaS contracts

  1. The establishment of a data connection between the Client's   workstations intended for use and the data transfer point defined by the Contractor shall be undertaken by the Client. The Contractor is entitled to redefine the data transfer point insofar as this is necessary to enable a smooth use of the services by the Contractor. In this case, the Client shall establish a connection to the newly defined transfer point.
  2. Within the scope of the SaaS contract, the use of the Contractor's services in accordance with the contract is dependent on the hardware and software used by the Client, including workstation computers, routers, data communication equipment, etc., meeting the minimum technical requirements for the use of the currently offered software version, and on the users authorised by the Client to use the software being familiar with the operation of the software. The Client shall install the software provided to it by the Contractor and subsequent updates, insofar as necessary, on every workstation computer from which it wishes to legitimately access the software. In all other respects, for the use of the Contractor's services it shall deploy only such hardware and software as meets the minimum requirements named in the service description. The configuration of its IT system is the task of the Client. The Contractor offers to support it in this for consideration on the basis of a separate agreement.
  3. Within the scope of the SaaS service, the Client is obliged to prevent unauthorised access by third parties to the protected areas of the software by means of suitable precautions. For this purpose, the Client shall, insofar as necessary, instruct its employees to comply with copyright law. Furthermore, the Client is obliged to check its data and information for viruses or other harmful components before entry and to use anti-virus programs corresponding to the state of the art for this purpose. For access to the use of the SaaS services, the Client shall, insofar as necessary, itself generate a „User ID" and a password required for the further use of the SaaS services. The Client is obliged to keep the „User ID" and password secret and not to make them accessible to third parties. 

§11 Prices and payment conditions

    General:

    1. Invoices issued are due for payment immediately, unless a payment term is stated on the invoices. In the event of default, the Contractor reserves the right to additionally charge reminder costs and default interest amounting to 4% above the respectively applicable base interest rate of the Deutsche Bundesbank.

    2. If the Client is in default of the due payments for more than 30 days, the Contractor reserves the right to render no further services for the Client until the latter has fulfilled its payment obligations. The suspension of performance on account of default in payment does not entitle the Client to extraordinary termination of the contract.

    Service services:

    1. For service services, the prices and conditions from the respective current price information sheet apply. Where hourly quotas are agreed, the Client undertakes to make corresponding minimum purchases. The invoicing of the chosen option is carried out on a pro rata basis at the times agreed in the order form.

    2. The Contractor may adjust the fees payable according to the price information sheet at its reasonable discretion in line with the development of the costs relevant to the price calculation. A price increase or price reduction may, among other things, be considered if, for example, the costs for the procurement of hardware and software as well as energy, the use of communication networks or the labour costs increase or decrease, or other changes in the economic or legal framework conditions lead to an altered cost situation. The Contractor shall inform the Client of changes to the price information sheet in text form at the latest six weeks before the changes take effect.

    3. Working hours exceeding the hourly quota shall be invoiced to the Client by the Contractor at the standard hourly rate, in each case after the performance has been rendered.

    4. For work at the Client's location, the costs according to the price information sheet shall additionally become due for each journey. Invoicing shall take place in each case together with the invoicing of the work performance.

    5. If the consumer price index determined by the Federal Statistical Office changes by more than 2 percentage points upwards or downwards compared with its level at the time of conclusion of the contract or at the time of the last price adjustment, a corresponding price adjustment shall take place.

§12 Contract duration and termination in the case of service services and hosting services / cloud computing

Invoicing shall take place on the basis of the effort acknowledged pursuant to § 3, insofar as remuneration according to effort has been agreed.

    1. The contract begins upon its signing and has a minimum term specified in the order form.

    2. The contracting parties have the right to terminate the contract, after expiry of the minimum term, with a period of notice of six months to the end of the calendar year (notice period).

    3. Termination of the contract must have been received by the respective other contracting party in writing by the start of the notice period. The terminating party must provide proof of receipt of the termination.

    4. The right to extraordinary termination for good cause remains unaffected.

    The Contractor is entitled to termination without notice in particular if the Client fails to make due payments despite a reminder and the setting of a grace period, or violates the contractual provisions on the use of the services.

§13 Delivery of software / retention of title and warranty

    1. The Contractor retains title to delivered software until full payment has been made.

    2. Insofar as delivered software is defective, the Client is entitled, within the scope of the statutory provisions, to demand subsequent performance in the form of the remedy of the defect or the delivery of a defect-free item. The right to choose the type of subsequent performance rests with the Contractor. If the subsequent performance fails, the Client is entitled to reduce the purchase price or, where the statutory requirements are met, to withdraw from the contract. A precondition for any warranty rights is that the Client duly fulfils the inspection and notification duties owed pursuant to § 377 HGB.

    3. The limitation period for warranty claims is – except in the case of claims for damages – twelve months. 

§14 Warranty in the case of work performances

    1. The Contractor renders the agreed performance to the agreed extent and within the agreed period.

    2. Claims for subsequent performance become time-barred in 12 months. Subsequent performance shall initially be rendered in the form of rectifications and shall be limited to these. A new production may be considered insofar as it is reasonable from a purely economic or technical perspective.

    3. The Contractor is not liable in cases where the Client has made changes to the services rendered by the Contractor, unless these changes had no influence on the occurrence of the defect.

    . 

§15 Warranty in the case of non-compliance with service and response times pursuant to §7 as well as in the case of hosting services

    1. Insofar as the service level or the availabilities agreed for hosting services are not met for reasons for which the Contractor and/or its subcontractor is responsible, the Client may, within the scope of its warranty rights, assert exclusively rights of reduction, without prior assertion of a claim for subsequent performance and without setting a deadline.

    2. Warranty claims are excluded if

  • an impairment of the performance occurs outside the network operated by the Contractor, e.g. due to performance failures and disruptions at other providers or telecommunications providers,
  • the Client uses the system capacities in breach of contract, e.g. through an excessive number of accesses or other conduct in breach of contract,
  • the Client is in default of payment,
  • the impairment is based on force majeure,
  • the impairment is based on attacks by third parties on the Contractor's infrastructure.

3. In the event that the Client asserts a right of reduction against the Contractor, the reduction rate is calculated as follows:

  • In the case of hosting services, the remuneration in the respective month shall be reduced, as a percentage, by three times the value (factor 3) by which the agreed availability was undershot. The remuneration shall lapse, from an undershooting of the promised availability by more than 15%, for the affected performance for the respective month as a whole.
  • In the case of SLA 4 services, the remuneration in the respective month shall be reduced by 4% (four per cent).

§16 Liability

  1. The Contractor is liable in the case of malice, intent or gross negligence in accordance with the statutory provisions. The same applies to claims under the Product Liability Act (Produkthaftungsgesetz) or the Telecommunications Act (TKG).
  2. The Contractor is liable without limitation insofar as it has assumed a guarantee for a characteristic of the item or, in the case of slight negligence, in the event of injury to life, body and/or health.
  3. Damage arising from slight negligence shall be compensated only insofar as a duty is breached whose fulfilment makes the proper performance of the contract possible in the first place, whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the Client may regularly rely (cardinal obligation).
  4. In the case of simple negligence, liability is limited to the damage typically foreseeable for the contract, but at most to the amount of the order value. This applies in particular also to lost profit and savings not realised.
  5. Liability for any loss of or damage to data is limited to the effort that would be necessary, in the case of proper data backup, to restore the data from the backed-up data material. The foregoing limitations of liability also apply for the benefit of any legal representatives and vicarious agents of the Contractor who may be involved.
  6. Any liability going beyond this for other damage is excluded.
  7. The Client must notify the Contractor of defects without delay.
  8. In the event that SaaS services of the Contractor are used by unauthorised third parties using the Client's access data, the Client is liable for the fees incurred thereby within the scope of civil liability until receipt of its request to change the access data or its notification of the loss or theft.
  9. In the case of SaaS services, the Contractor is entitled to immediately block the storage space if there is reasonable suspicion that the stored data are unlawful and/or infringe the rights of third parties. A reasonable suspicion of unlawfulness and/or of an infringement of rights exists in particular if courts, authorities and/or other third parties notify the Contractor thereof. The Contractor must notify the Client of the block and the reason for it without delay. The block must be lifted as soon as the suspicion has been refuted.
  10. In the event of force majeure, such as war, terrorism, riots, fire, floods, pandemics or other unforeseeable events for which the Contractor is not responsible, such as strikes, a publicly ordered lockdown, operational disruptions, a shortage of energy and raw materials, a shortage of means of transport, insufficient deliveries by upstream service providers, disruption of gateways by telecommunications networks that are not within the Contractor's control, the Contractor is released from the rendering of performance for as long as and to the extent that the hindrances to performance caused thereby persist. All cases of force majeure entitle the Contractor in particular to an extension of the delivery dates and deadlines in accordance with the extent and duration of these circumstances and their consequences, without any right of withdrawal from the contract or claim for damages being granted to the Client.

§17 Confidentiality and data protection

  1. The contracting parties undertake to maintain silence about all confidential matters that come to their knowledge within the scope of the business relationship, in particular the trade and business secrets of the other contracting party, and neither to pass these on nor to exploit them in any other way. This applies vis-à-vis any unauthorised third parties, i.e. also vis-à-vis unauthorised employees, insofar as the disclosure is not necessary for the proper fulfilment of the contractual obligations. The confidentiality obligation shall continue to exist even after termination of this contract.
  2. The contracting parties shall process and use the personal data of the respective other contracting party in compliance with the provisions of the data protection laws and only for contractually agreed purposes. They shall in particular secure this data against unauthorised access and shall pass it on to third parties only with the consent of the other contracting party or of the persons concerned. Insofar as it is necessary for the execution of the order that the Client grants the Contractor access to personal data, the personnel deployed must likewise be informed of their data protection obligations and be bound in accordance with the data protection provisions. Insofar as processing on behalf takes place, this must be regulated in a data processing agreement.

§18 Amendment of these General Terms and Conditions

The Contractor reserves the right to amend these General Terms and Conditions, the associated service descriptions and prices at any time and without giving reasons. These new General Terms and Conditions shall be announced in writing in good time, but at least 6 weeks before the time at which they are to take effect. If the Client has agreed an electronic communication channel with the Contractor, the amendments may also be transmitted by this means, provided that the manner of transmission allows the Client to store or print out the amendments in legible form. If the customer does not object to amendments in writing or by the agreed electronic means at the latest four weeks after receipt of the notice of amendment, these shall be deemed accepted. They shall be deemed approved if the Client does not raise an objection in writing or by the agreed electronic means within six weeks of the announcement of the amendments. The Contractor shall inform the customer in the notification letter of the significance of its silence and of the time of the intended entry into effect of the amendments. If the customer objects, the previous conditions shall continue to apply.

§19 Law and place of jurisdiction

  1. For all disputes arising within the scope of the performance and settlement of this contractual relationship, the registered office of the Contractor is agreed as the place of jurisdiction, insofar as the Client is a full merchant.
  2. The contractual relationship is governed exclusively by the law of the Federal Republic of Germany, to the exclusion of conflict-of-law rules and of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).

 

§20 Concluding provisions

  1. The Contractor may transfer the rights and obligations under this contract to a third party if, by virtue of that party's qualification and performance capability, the contractual fulfilment of the obligations existing towards the Client is ensured. The Client already now irrevocably consents to such a debt assumption with discharging effect.
  2. Amendments and supplements to this contract require the written form. This also applies to the amendment of the written-form clause.