1. Scope of these Terms of Business
These General Terms of Business govern all IT services and products supplied by IT2media GmbH & Co KG, Pretzfelder Str. 15, D-90425 Nuremberg, in return for payment.
In all contractual relations in which IT2media performs services for other companies or for public-law entities (hereinafter: ?Customers’), all deliveries and services are made exclusively on the basis of the following General Terms of Business and the IT2media list of prices and conditions.
Any regulations deviating from these conditions, particularly those in the General Terms of Business of the contracting partner, shall not be applicable unless IT2media has given its written confirmation. The contracting partners shall be notified in writing of any amendments to these Terms of Business. Such amendments shall be deemed approved if the contracting partner does not lodge a written objection. IT2media shall notify the partner of this consequence, in particular.
Should any parts of a condition be ineffective, this shall not affect the effectiveness of the other conditions.
2. Conclusion of contract, notice periods
Contractual statements made by either Party must be in writing. In cases of doubt, IT2media’s offer or confirmation of order shall determine the contractual contents.
Working together requires a high level of trust, collaboration and willingness to reach agreement. When deadlines are to be set, the Party obliged to render performance must be granted at least ten working days to comply. The obliged Party shall respond without undue delay when a deadline is set. Offers of any kind made by IT2media shall be non-binding.
Commitments of whatever kind made by IT2media and which give rise to greater obligations on the part of IT2media than those specified in these Terms of Business shall require the express and written confirmation of IT2media.
3. Use of the software
IT2media provides its assurance that it is the right holder and/or licensee of all third-party software it sells, and that it holds all the respective rights of use to the third-party products required to perform the services for Customer.
In granting licences to the software, IT2media grants Customer the right to use the products under the terms and conditions of use stated herein, and for the purposes described in the contracts and in the list of prices and conditions. Any use or exploitation beyond those defined herein is not permitted.
4. Service provision
Customer shall define the assignment. Fulfilment of the assignment shall be jointly planned on said basis. If services are performed at the premises of Customer, only IT2media is authorised to issue directives to its employees. The employees shall not be integrated into Customer’s operations. Customer may give instructions only to the Project Manager or the relevant Customer Support personnel at IT2media, but not directly to the individual employees.
IT2media shall decide which employees to deploy. It may use its own or freelance personnel, and may also use the services of other companies in fulfilling its assignment. Without prejudice to the foregoing, IT2media reserves the right to replace employees at any time.
The dates specified in the implementation and project plans are estimates only. Deadlines are non-binding unless IT2media explicitly designates them in writing as binding.
If IT2media must wait on Customer to cooperate or provide information, or is prevented from performing its services by force majeure, e.g. war, civil disturbance, natural disasters or similar events such as strikes, lock-outs, government intervention, or other circumstances beyond its control, the deadlines shall be extended by a reasonable amount.
IT2media shall notify Customer of the obstruction and shall present a new set of fulfilment dates once the obstruction has ended.
5. Obligations and cooperation of Customer
Customer shall ensure that the proper setting (workplace, network) is provided for deployment of the IT2media systems, in accordance with the specifications made by IT2media.
Customer shall cooperate at no charge in fulfilling the assignment, in particular in implementing and performing work, for example by providing employees, rooms, hardware and software, data and telecommunications equipment. It shall grant IT2media access to hardware and software both directly and by remote data monitoring. Without undue delay, it shall answer questions, check results and test systems provided by IT2media. Any errors or defects shall be notified to IT2media immediately in writing.
Customer shall specify in writing one or more persons as contacts, in addition to the communication details for reaching said contact(s). The contact(s) must be able to make or arrange for the requisite decisions on behalf of Customer. The contact(s) shall ensure good collaboration with the respective contacts at IT2media (usually the Project Manager or member of Customer Support staff). The employees of Customer shall be released from their other duties to a reasonable and appropriate extent.
Customer shall protect any access data provided by IT2media (including subscriber codes, personal passwords, access codes, etc.) against access by unauthorised third parties. Customer is not permitted to provide such access data and/or the services based on such access for use by third parties without a prior written agreement to that effect with IT2media.
Customer shall use the services and systems provided by IT2media in accordance with current statutory provisions, official directives and the contractual agreements concluded with IT2media.
6. Payment, rights of retention
Payment shall be determined, as a basic principle, in accordance with IT2media’s respectively valid list of prices and conditions. All prices are subject to value added tax unless the sales revenue is exempted from value added tax. IT2media has the right to invoice partial performances. Payments shall be made within the term specified on the invoice or partial invoice. No discounts are granted. If 30 days have elapsed since the due date for payment, IT2media may charge interest at the current statutory rate of default interest.
Services are generally invoiced by IT2media after they have been performed. Services performed are invoiced on a monthly basis. Any exceptions require a separate written agreement. IT2media may require downpayments if the time required for works and services is more than one month. The amount of downpayment shall depend on the degree of completion.
Invoices based on the time and expenses involved shall be accompanied by the normal documentary evidence as used by IT2media. Billing of travel time, travel expenses and other expenses shall be based on the normal place of employment of the IT2media employee.
Increases in costs charged by third parties for licences and servicing in connection with the performance of services by IT2media for Customer shall be passed on unchanged to Customer by IT2media.
IT2media shall retain ownership and rights, even when contractual items are supplied to Customer, until all amounts owing from the contract have been settled in full.
7. Customer-specific modifications and adjustments
During the term of contracts and the associated use of IT2media systems, Customer may propose modifications and adjustments at any time.
IT2media shall respond in writing within 15 working days to written requests by Customer for modifications, and shall inform Customer whether modifications are possible and what effects these will have on the existing contract. IT2media shall draft a written offer for modifications that can feasibly be made, and shall specify a date until which the offer is valid.
Customer must provide IT2media with a written order for such modifications. A separate contract for work and services shall be concluded by Customer and IT2media for such an order. Payment for such work and services shall be based on the current IT2media list of prices and conditions.
As long as no agreement has been reached on the modification requirements to be specified by Customer, all other work shall continue to be performed in accordance with existing contracts. However, Customer may require that any simultaneous work be wholly or partly interrupted. Responsibility for any ensuing delay or default shall be borne by Customer.
8. Rights
All rights, in particular the copyright for deliverables such as concepts, planning documents, specifications, designs, documentation, studies, inventions, user or maintenance manuals and other documentation shall be the property of IT2media once they have been produced. This shall also apply to cases in which the deliverables were produced with Customer cooperation. When such deliverables have been produced, IT2media shall have the exclusive and transferable right, without restriction as to time or place, to use, process and market said deliverables in any way.
If deliverables contain patentable inventions or ideas, IT2media shall be entitled to file for patents at its own discretion, in its own name and in any country, to enforce such patents or to waive them at any time.
Unless otherwise agreed in writing, Customer shall have the right to use the results of work for an indefinite time after payment has been rendered in full.
9. Acceptance procedures
If a Customer order comprises several independently usable works, a separate acceptance procedure shall be carried out by Customer for each separate work.
If SAP-specific sub-works are defined, SAP may conduct independent acceptance procedures for such sub-works. In subsequent new acceptance procedures, all that is tested is whether the previous sub-works continue to function correctly when combined with the new sub-works subject to acceptance.
Concepts and bills of specifications by Customer must be accepted in writing by IT2media to obtain effect.
Concepts and bills of specifications by IT2media must be accepted by Customer before they are implemented. A written order based on the contents of such specifications constitutes acceptance free of defects and errors.
Customer shall inspect the result within ten working days and shall either provide written notification of defects or state in writing that the result is accepted. The work and services is deemed accepted if, within said period, Customer does not declare acceptance in writing or uses the work and services without complaint. Minor defects do not entitle Customer to refuse acceptance.
Complaints of defects that are the responsibility of SAP shall be remedied by SAP within a period appropriate to the severity of the defect; these are generally SAP-specific sub-works.
10. Warranties
IT2media provides a warranty that the software forming the subject-matter of the contract shall perform the functions specified in the description of services for the term of the contract. IT2media gives its assurance that the work assigned to it is carried out with maximum care and to the best of its endeavours.
Software errors, necessitated modifications and other circumstances indicating the need for additional software engineering shall be notified to IT2media by Customer without undue delay.
Errors notified by Customer and which are identified as such shall be eliminated. If it transpires that an error cannot be eliminated, IT2media shall offer a workaround solution.
If IT2media fails to honour its obligation to eliminate defects within a reasonable period, Customer may request reimbursement of the necessary expenses, a reduction in the amount payable or damages in place of performance, up to the value of the order in question, or may withdraw from the contract provided that there is no doubt of there being a definite defect that renders use of the software impossible.
If Customer refuses to allow IT2media to examine the claimed defect, IT2media shall be released from its warranty obligations.
If notified defects can no longer be identified in the course of joint examinations, the defects notified shall be deemed eliminated.
The warranty does not cover defects that arise, after handover to Customer, as a result of incorrect or negligent treatment, non-observance of instructions given by IT2media, or due to special external influences. If Customer or third parties perform modifications of programs or systems without prior consultation with IT2media, no warranty shall exist for such programs and systems, or for the consequences that result.
IT2media does not guarantee properties.
11. Liability
IT2media accepts no liability for delays, interruptions or other non-performance of its contractual work and services that may be caused by force majeure, damage to machinery, power cuts, strikes, lock-outs, operational disruptions at companies for which IT2media has no direct responsibility, or due to supplier companies rendering performance too late, improperly or not at all.
In the aforementioned cases, the obligation of IT2media to render performance shall be suspended for as long and to the extent that IT2media is unable to eliminate the disruption without considerable extra effort and expense.
In every case of contractual or extra-contractual liability, IT2media shall pay damages or refund wasted expenses:
a) to the full amount only in cases of wilful acts; in cases of gross negligence and absence of a condition for which IT2media has provided a guarantee, only to the amount of foreseeable damage that the guarantee or breach of obligation was intended to prevent
b) in other cases, only with regard to the breach of a material obligation if the contractual purpose is jeopardised as a result, but only to a maximum of EUR 50,000 per claim and with liability limited to EUR 150,000 per advertising medium that is produced.
A plea of contributory negligence (e.g. deriving from Section 5 above) shall not be excluded.
For all claims against IT2media for damages or reimbursement of wasted expenses, the period of limitation in cases of contractual liability shall be one year, except in cases of wilful acts. For the rest, Section 199 (2)-(4) of the German Civil Code, relating to periods of limitation, shall apply.
12. Confidentiality, data protection
The Parties shall treat in confidence the operating and business secrets of the respective other Party that become known to them in the course of the business relationship, also when the relationship has ended.
Customer may not make contractual items available to employees and third parties unless this is necessary to exercise the rights of use granted to Customer; Customer shall otherwise observe secrecy in respect of all contractual items. Customer shall instruct all persons to whom he grants access to contractual items about the rights of IT2media to the contractual items and about the commitment to secrecy.
IT2media shall comply with the provisions of the Data Protection Act (BDSG) in using personal data that become known to it through the business relationship with its contracting partner.
13. Miscellaneous provisions
Amendments of and additions to contracts must be in writing to obtain legal effect. There shall be no side-agreements.
The exclusive place of jurisdiction for all disputes arising from and relating to IT2media is Nuremberg if Customer is a businessperson or public-law entity.
The laws of Germany shall apply.
Status: 01.01.2003