General terms and conditions
Industrial Analytics IA GmbH
Erkelenzdamm 59–61
10999 Berlin
1 Prices and terms of payment
All prices are net prices and are subject to the statutory value added tax applicable at the time of invoicing. Unless otherwise stated, invoices are issued after performance of the service with a payment term of 30 days.
2 Default
The Contractor shall only be in default if he culpably exceeds the start of the performance of the service or a date designated as “milestone” and the Customer grants him a reasonable period of grace. Should the Contractor fail to meet his obligation to perform within the grace period set, the Customer may in this case terminate the contract after setting a further reasonable grace period. Services rendered up to the time of termination shall be remunerated by the Customer.
3 Contract period and periods of notice
Unless otherwise agreed, this section applies only to services which are not offered in units of pieces and which have a recurring character. These include:
• Software subscription licenses
• Rental of hardware and / or software
• Software-as-a-Service
• Monitoring-as-a-service.
The contract period is 24 months and is extended by a further 12 months in each case, unless the contract is terminated by one of the parties with a notice period of 3 months to the end of the minimum term or to the end of the respective extension period. The contractual relationship may be terminated by either party for good cause without notice in accordance with the statutory provisions. If the Contractor terminates the contractual relationship without notice for good cause for which the Customer is responsible, the Contractor shall be entitled to liquidated damages in the amount of 50% of the contract value which would have been payable by the next regular termination date. The Contractor reserves the right to prove further damages.
4 Rights of use
The software products are licensed and limited to the equipment listed under scope of services and for the duration of the contract. Industrial Analytics grants the client a non-transferable right of use for the internal intended use.
5 Travel expanses
If the contractor’s employees work outside their regular place of business in order to provide the service, the client will reimburse the travel expenses arising from the business trips in accordance with IA rates after invoicing.
6 Cooperation of the Customer
The Customer must ensure that the Contractor is granted the access necessary for the performance of his activities without delay and that he is provided with all relevant data and information in good time. This also applies to documents and circumstances which only become known after the Contractor has started work.
7 Fulfilment of services
The services described under scope of services are not subject to acceptance. They shall be deemed to have been performed upon actual execution and handover of the documents. No contractual liability for defects in the sense of an obligation to rectify defects free of charge is assumed. In the event of poor performance, the client may demand compensation for damages under the liability clause, upon proof of damage, and may terminate the contract in the event of repeated poor performance that leads to unreasonableness of continuation of the contract.
8 Liability for defects
The liability for defects is defined depending on the scope of services:
8.1 Implementation & Monitoring as a Service
Contractor shall maintain the software in a condition suitable for use in accordance with the contract over the term of the contract. In the event of only an insignificant reduction of the suitability for use as per the contract, no claims for defects shall exist. Similarly, claims for defects are excluded if the deviation from the contractual condition is due to improper use or application. The same applies to deviations due to special external influences which are not contractually provided for.
8.2 Implementation & Monitoring as a Service with Hardware
The Customer is obliged to check the deliveries and services for freedom from defects immediately after receipt and to give notice of defects in writing without delay, at the latest 2 weeks after their detection. The customer shall make the defective delivery available to the contractor for examination purposes. In the event of a justified defect, the Contractor shall be entitled, at his discretion and at his expense, to rectify the defect or to replace it by delivery of a defect-free object of the contract or to provide the service complained about again without defects (subsequent performance). The Customer shall give the Contractor sufficient time and opportunity for the repair or replacement, but at least 8 weeks after the Contractor has received the defective delivery. If subsequent performance by repair or replacement is chosen, the Contractor shall be entitled to use new or repaired parts thereof for the repair or replacement. If the supplementary performance fails within a period to be set by the Customer of at least 8 weeks, for which the written form is prescribed, or if the Contractor refuses the supplementary performance or if the form of supplementary performance chosen by the Contractor is unacceptable for the Customer, the Customer shall be entitled to reduce the remuneration paid or to rescind the contract, at his discretion. A failure of the supplementary performance shall only exist if no attempt at supplementary performance is made within this period or if the supplementary performance has proved unsuccessful and a further period of grace of at least 4 weeks to be set by the Customer remains unsuccessful. Irrespective of the detectability of the defect, warranty claims can only be asserted within one year after delivery or performance of the service. The above-mentioned periods shall only apply to rectification of defects insofar as the defect is the same or the consequences of a defective rectification are concerned.
8.3 Implementation & Rental of Hardware and Software
The Contractor shall have unlimited liability, insofar as he or his vicarious agents have acted with intent or gross negligence, in accordance with the Product Liability Act and for damages arising from injury tolife, body and health for which the Contractor, his legal representatives or vicarious agents are responsible. In all other respects, the contractor is liable, for whatever legal reason, for the compensation of damages and expenses up to a maximum of 30% of the remuneration paid to Industrial Analytics. The contractor is not liable for consequential damages, in particular for loss of profit, loss of production and lack of savings. The contractor is only liable for damages or compensation of expenses from a guarantee declaration if this has been expressly assumed in a guarantee. In case of slight negligence, liability is subject to the above-mentioned limitation. The contractor does not assume any product liability towards the client in the internal relationship. If claims for damages are made against the contractor directly on the basis of product liability, the client shall indemnify Industrial Analytics against these claims in the internal relationship. Unless shorter statutory limitation periods exist, contractual claims of the client against the contractor shall become statute-barred two years after performance of the service, unless the contractor can be charged with intent.
8.4 Consultancy services
The Contractor only provides a consulting service. No further liability for defects is assumed. Should third parties assert claims against the Contractor on the basis of the services rendered for the project, the Customer shall defend these claims at its own expense and indemnify the Contractor to this extent.
9 Confidentiality
The Customer and the Contractor undertake to treat all technical and commercial information as strictly confidential, even after termination of the contract, and not to make it available to third parties, even if it is not expressly designated as confidential.
10 Data protection
Insofar as the Contractor can access personal data of the Customer or from his area, he shall act exclusively as a processor of orders and process and use these data only for the execution of the contract. The Contractor shall comply with the Customer’s instructions for handling such data. The Customer shall bear any adverse consequences of such instructions for the performance of the contract. The Customer shall agree with the Contractor the details for the Contractor’s handling of the Customer’s data in accordance with the requirements of data protection law. The Customer shall remain the responsible party, both in the general contractual relationship and in terms of data protection law. If the Customer processes personal data in connection with the contract (including collection and use), he shall be responsible for ensuring that he is entitled to do so in accordance with the applicable provisions of data protection law and shall indemnify the Contractor against claims by third parties in the event of a breach.
11 Final regulations
Oral collateral agreements are invalid. Changes to offers and contracts must be made in writing to be effective. The client may only transfer the rights and obligations resulting from the contract to third parties with prior consent. The Customer shall not be entitled to withhold or offset due claims of the Contractor unless the claims have been legally established or are undisputed. If a provision in the contract is legally invalid, the rest of the contract shall remain in force. However, the Customer and the Contractor undertake to replace the legally ineffective provisions by economically possible and legally effective provisions. The contract shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. Place of jurisdiction is Berlin.
Berlin, 27. August 2021