1 . Scope of application
1.1 These General Terms and Conditions (hereinafter: “GTC”) apply to all IT services provided by LabV Intelligent Solution GmbH, Frankenthaler Straße 20, 81539 Munich, Germany (hereinafter: “LabV”). IT services provided by LabV may include, in particular, services such as consulting, service and support services, software and hardware licensing, software creation, software maintenance and software servicing as well as internet-based services such as SaaS and cloud services.
2.1 The customer and LabV shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and LabV will take place via these contact persons. The contact persons must bring about all decisions related to the execution of the contract without delay. The decisions are to be documented in a binding manner.
2.2 The customer is obligated to support LabV to the extent necessary and to create in its sphere of operation all prerequisites necessary for the proper execution of the order. To this end, it shall in particular provide the necessary information and, if possible, enable remote access to the customer system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this shall be extended appropriately; the contracting parties shall agree on an appropriate arrangement for any further effects. The customer shall also ensure that expert personnel are available to support LabV. Insofar as it is agreed in the contract that services can be performed on site at the customer’s premises, the customer shall provide sufficient workplaces and work equipment free of charge at LabV’s request.
2.3 Unless otherwise agreed, the customer shall ensure proper data backup and contingency planning for data and components (e.g. hardware, software) that is appropriate to their type and importance.
2.4 The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated.
2.5 The customer will provide LabV with appropriate support upon request in the examination and assertion of claims against other parties involved in connection with the performance of the service. This applies in particular to recourse claims of LabV against upstream suppliers.
3 Compensation, payment, performance protection, appointments
3.1 Unless otherwise agreed, the remuneration will be calculated according to expenditure at the prices of LabV generally valid at the time of conclusion of the contract. Remunerations are always net prices plus statutory value added tax. LabV can invoice on a monthly basis. If services are remunerated on a time and material basis, LabV will document the type and duration of the activities and send this documentation with the invoice.
3.2 All invoices are generally payable without deduction no later than 14 calendar days after receipt.
3.3 The customer may only offset or withhold payments due to defects to the extent that it is actually entitled to payment claims due to material defects or defects in title of the performance. Due to other defect claims, the customer may withhold payments only to a proportionate extent taking into account the defect. Clause 5.1 shall apply accordingly. The customer shall have no right of retention if its claim for defects is time-barred. In all other respects, the customer may only offset or exercise a right of retention against undisputed or legally established claims.
3.4 LabV retains ownership and rights to services to be granted until full payment of the remuneration owed; justified retentions of defects in accordance with section 3.3 sentence 2 will be taken into account. Furthermore, LabV retains ownership until all claims of LabV arising from the business relationship with the customer have been fulfilled.
LabV is entitled to prohibit the customer from further use of the services for the duration of a delay in payment by the customer. LabV may only assert this right for a reasonable period of time, as a rule for a maximum of 6 months. This does not constitute a withdrawal from the contract. § Section 449 para. 2 BGB remains unaffected.
If the customer or its purchaser returns the services, the acceptance of the services does not constitute a withdrawal from LabV, unless LabV has expressly declared the withdrawal. The same applies to the seizure of reserved goods or rights to reserved goods by LabV.
The customer may neither pledge nor assign by way of security items subject to retention of title or reservation of rights. The customer is only permitted to resell in the ordinary course of business as a reseller under the condition that LabV has been effectively assigned by the customer its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment. By the present conclusion of the contract, the customer assigns its future claims in connection with such sales against its customers to LabV by way of security, which hereby accepts this assignment. If the value of LabV’s security interests exceeds the amount of the secured claims by more than 20%, LabV will release a corresponding share of the security interests at the request of the customer.
3.5 In the event of a permissible transfer of rights of use to supplies and services, the customer shall be obliged to impose the contractually agreed restrictions on the recipient thereof.
3.6 If the customer does not settle a due claim in full or in part by the contractual payment date, LabV may revoke agreed payment terms for all claims. Furthermore, LabV is entitled to perform further services only against advance payment or against security in the form of a performance bond of a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective billing period or – in the case of one-off services – their remuneration.
3.7 In the event of the economic inability of the customer to fulfill its obligations towards LabV, LabV may terminate existing exchange agreements with the customer by rescission, continuing obligations by termination without notice, also in the event of an application for insolvency by the customer; § 321 BGB and § 112 InsO remain unaffected. The customer will inform LabV in writing at an early stage of any impending insolvency.
3.8 Fixed performance dates shall be agreed exclusively expressly in documented form. The agreement of a fixed performance date is subject to the proviso that LabV receives the services of its respective upstream suppliers in due time and in accordance with the contract.
4 Disruptions in the provision of services
4.1 If a cause for which LabV is not responsible, including strike or lockout, impairs compliance with deadlines (“disruption”), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. A contracting partner must inform the other contracting partner without delay of the cause of a disruption occurring in its area and the duration of the postponement.
4.2 If the effort increases due to a disruption, LabV may also demand payment for the additional effort, unless the customer is not responsible for the disruption and its cause lies outside its area of responsibility.
4.3 If the customer can withdraw from the contract due to improper performance by LabV and / or demand damages instead of performance or claims such, the customer will declare in writing at the request of LabV within a reasonable period of time whether it asserts these rights or wishes to continue the performance of the service. In the event of withdrawal, the customer shall reimburse LabV for the value of previously existing possibilities of use; the same applies to deterioration due to intended use.
4.4 If LabV is in default with the provision of services, the customer’s compensation for damages and expenses due to the default is limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of the default. The liability for delay shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the delay; in the case of continuing obligations, it shall be limited to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This does not apply insofar as a delay is due to gross negligence or intent on the part of LabV.
4.5 In the event of a delay in performance, the customer has a right of withdrawal within the framework of the statutory provisions only if LabV is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses in lieu of performance due to the delay, it is entitled to demand 1% of the price for the part of the contractual performance that cannot be used due to the delay for each full week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.
5 Material defects and reimbursement of expenses
5.1 LabV provides a warranty for the contractually owed quality of the services. No claims for material defects exist for an only insignificant deviation of the services of LabV from the contractual quality. Claims due to defects also do not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, software errors that cannot be reproduced or otherwise proven by the customer or in the event of damage that occurs due to special external influences that are not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and elimination of a material defect. Clause 7 shall apply additionally to claims for damages and reimbursement of expenses.
5.2 The limitation period for material defect claims shall be one year from the statutory commencement of the limitation period. The statutory periods for recourse pursuant to § 478 BGB shall remain unaffected. The same applies insofar as the law prescribes longer periods in accordance with § 438 Para. 1 No. 2 or § 634a Para. 1 No. 2 BGB, in the event of an intentional or grossly negligent breach of duty by LabV, in the event of fraudulent concealment of a defect as well as in the event of injury to life, limb or health as well as for claims under the Product Liability Act.
The processing of a notice of material defect by the customer by LabV only leads to the suspension of the limitation period insofar as the statutory requirements for this are met. This does not result in a new start of the limitation period. Subsequent performance (new delivery or rectification) can only have an influence on the limitation period of the defect triggering the subsequent performance.
5.3 LabV can demand reimbursement of the expenses if
a) LabV takes action on the basis of a report without there being a defect, unless the customer was unable to identify with reasonable effort that there was no defect, or
b) a reported fault cannot be reproduced or otherwise proven by the customer to be a defect, or
c) additional expenses are incurred due to the Customer’s failure to properly fulfill its obligations (see also Sections 2.2, 2.3, 2.4 and 6.2).
6 Legal defects
6.1 LabV is liable for infringements of third party rights by LabV’s services only insofar as the service is used in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment of use without modification. LabV is liable for infringements of third party rights only within the European Union and the European Economic Area and at the place of contractual use of the performance. Clause 5.1 sentence 1 applies accordingly.
6.2 If a third party asserts against the customer that a service of LabV infringes its rights, the customer shall notify LabV without delay. LabV and, if applicable, LabV’s upstream suppliers are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible. The customer is not entitled to acknowledge claims of third parties before it has given LabV reasonable opportunity to defend the rights of third parties by other means.
6.3 If the rights of third parties are infringed by a service provided by LabV, LabV will, at its own discretion and at its own expense
a) procure the right to use the service for the customer,
b) make the service non-infringing or
c) take back the performance with reimbursement of the remuneration paid for it by the customer (less reasonable compensation for use) if LabV cannot achieve any other remedy with reasonable effort.
The interests of the customer will be taken into account appropriately.
6.4 Claims of the customer due to defects of title shall become time-barred in accordance with clause 5.2. Clause 7 shall apply additionally to claims for damages and reimbursement of expenses of the customer; clause 5.3 shall apply accordingly to additional expenses of LabV.
7 General liability of LabV
7.1 LabV is always liable to the customer
a) for damage caused by LabV as well as legal representatives or vicarious agents intentionally or through gross negligence,
b) according to the Product Liability Act and
c) for damage resulting from injury to life, body or health for which LabV, its legal representatives or vicarious agents are responsible.
7.2 LabV shall not be liable in the event of slight negligence, except insofar as it has breached a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the customer may normally rely.
In the case of property damage and financial loss, this liability shall be limited to the foreseeable damage typical of the contract. This also applies to lost profits and savings. Liability for other remote consequential damages is excluded.
For a single case of damage, liability is limited to the value of the contract, in the case of ongoing remuneration to the amount of remuneration per contract year, but not less than € 50,000. Section 5.2 applies accordingly to the statute of limitations. The contracting parties may agree in writing on a more extensive liability upon conclusion of the contract, usually against a separate remuneration. Priority shall be given to an individually agreed liability sum. The liability according to clause 7.1 remains unaffected by this paragraph.
In addition and with priority, the liability of LabV due to slight negligence arising from the respective contract and its execution for damages and reimbursement of expenses, irrespective of the legal grounds, is limited in total to the percentage of the remuneration agreed in this contract at the time of conclusion of the contract. The liability according to section 7.1 b) remains unaffected by this paragraph.
7.3 LabV is only liable for damages arising from a guarantee declaration if this was expressly assumed in the guarantee. In the event of slight negligence, this liability is subject to the limitations set out in clause 7.2.
7.4 In the event of a necessary restoration of data or components (such as hardware, software), LabV shall only be liable for the effort required for the restoration in the event of proper data backup and failure precautions by the customer. In the event of slight negligence on the part of LabV, this liability only applies if the customer has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This does not apply insofar as this is agreed as a service of LabV.
7.5 Sections 7.1 to 7.4 apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against LabV. Clauses 4.3 and 4.5 remain unaffected.
8 Data privacy
The customer will conclude with LabV agreements necessary under data protection law for the handling of personal data.
9.1 The contractual partners shall be obligated to maintain secrecy with regard to business secrets and other information designated as confidential (e.g. in documents, records, data files) which become known in connection with the performance of the contract and to neither use nor disclose such information beyond the purpose of the contract without the written consent of the other contractual partner.
The respective receiving contractual partner shall be obliged to take appropriate confidentiality measures for business secrets and for information designated as confidential. The contracting parties shall not be entitled to obtain business secrets of the other contracting party by observing, examining, dismantling or testing the subject matter of the contract. The same shall apply to other information or objects obtained during the performance of the contract.
Business secrets and other information designated as confidential may only be disclosed to persons who are not involved in the conclusion, performance or execution of the contract with the written consent of the other contracting party.
Unless otherwise agreed, the obligation to maintain secrecy for other information designated as confidential shall end five years after the respective information becomes known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time.
The contractual partners shall also impose these obligations on their employees and any third parties engaged.
9.2 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, they shall therefore not assert any claims based on the lack of encryption, except to the extent that encryption has been agreed upon in advance.
10.1 The customer shall be responsible for complying with any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.
10.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
10.3 LabV provides services on the basis of its General Terms and Conditions (GTC). The customer’s GTC do not apply, even if LabV has not expressly objected to them. Acceptance of the services by the customer is deemed to be acceptance of LabV’s GTC with waiver of the customer’s GTC. Other terms and conditions are only binding if LabV has acknowledged them in writing; LabV’s GTC then apply in addition.
10.4 Amendments and supplements to this contract shall only be agreed in writing; this also applies to an amendment of this written form requirement. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form is not sufficient.
10.5 The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law is the registered office of LabV. LabV may also sue the customer at its registered office.
Contractual Terms and Conditions Services
1 Scope of application
1.1 If the subject of the contract between the parties is the provision of services within the meaning of §§ 611 ff. BGB, these GTC Services shall apply.
1.2 These GTC Services also apply if reference is made to these conditions in a contract or offer of LabV.
2 Subject matter of the contract
2.1 LabV provides services in accordance with the conditions agreed in the contract and hereinafter against the contractually agreed remuneration. The customer bears the responsibility for the project and its success.
3 Performance of the service
3.1 LabV provides the service through suitable employees. The customer does not have a claim to the performance of the service by certain employees of LabV, unless otherwise agreed.
3.2 LabV determines the manner in which the service is provided, unless otherwise agreed.
3.3 The customer is not authorized to issue instructions to LabV employees involved in the provision of services.
4 Duties to cooperate
4.1 The customer shall ensure that the contact person named by it provides LabV with the documents, information and data necessary for the provision of the service completely, correctly, in good time and free of charge, unless owed by LabV. In addition, the customer shall ensure that they are updated. LabV may assume that these documents, information and data are complete and correct, unless LabV recognizes or must recognize that they are incomplete or incorrect.
5 Rights of use
5.1 LabV grants the customer the non-exclusive and non-transferable right to use the service results, which LabV has provided and handed over to the customer within the scope of the agreement, for its own internal purposes within the scope of the contractually stipulated purpose of use on a permanent basis, unless otherwise agreed.
6.1 If the contract is concluded for an indefinite period, it may be terminated with a notice period of 3 months to the end of a calendar year. This termination shall be possible for the first time at the end of the calendar year following the conclusion of the Agreement. Any agreed minimum term shall remain unaffected by this right of termination. This shall not apply in each case if anything to the contrary has been agreed.
7.1 Agreed statements of expenses shall be deemed to have been approved unless the Client objects in detail in writing within 21 days of receipt.
7.2 Travel costs and expenses as well as other expenses shall be reimbursed in accordance with LabV’s price list, unless otherwise agreed. Travel time is deemed to be working time.
7.3 LabV may demand reimbursement for further expenses insofar as additional expenses are incurred due to the customer’s failure to properly fulfil its obligations (see clause 3).
8 Service disruptions
8.1 If the service is not provided in accordance with the contract and LabV is responsible for this (default in performance), LabV is obligated to provide the service in accordance with the contract in whole or in part without additional costs for the customer within a reasonable period of time, unless this is only possible with disproportionate effort. This obligation of LabV only exists if the customer notifies LabV of the disruption in performance in writing and without delay, but no later than two weeks after becoming aware of it, unless otherwise agreed.