Last updated: 24 August 2019

1. Subject Matter and Scope of the Contract

1.1

These General Terms and Conditions of Hagen+Triebsch GmbH govern the provision of defined contract-work and service deliverables by Hagen+Triebsch GmbH (hereinafter the "Contractor") to the customer (hereinafter the "Client").

General terms and conditions of the Client shall only apply to the extent that they do not conflict with the following General Terms and Conditions of Hagen+Triebsch GmbH.

1.2

Services provided by the Contractor are agreed in the offer either as contract-work deliverables or as service deliverables.

For contract-work deliverables, the Contractor is responsible for supervising, directing and controlling the performance of the services as well as for the services rendered. The Client is responsible, on its own initiative, for the organisational integration of the Contractor's services into its business operations. No responsibility is assumed for errors in information technology programs, since it is not possible according to the state of the art to rule out such errors under all conditions of use. Service deliverables serve to advise and support the Client. The Contractor provides these on its own responsibility. However, the Contractor is not responsible for the results that the Client intends and seeks to achieve through the Contractor's service deliverables.

1.3

A contract is formed once the offer has been signed by both the Client and the Contractor. The date on which a contract is formed is the day on which the offer - signed by the Client - is received by the Contractor.

The Client receives these present Terms and Conditions together with the first offer; they remain valid for all subsequent offers until amended.

2. Responsibilities of the Contracting Parties

2.1

The offer contains the "description of services", the planning and execution conditions, the definition of the functions and specifications (performance characteristics) of a work, as well as details of the parts, devices, programs and other required products to be used.

2.2

The contracting parties may agree in the offer on a schedule for the performance of the services and a planned completion date for the conclusion of service deliverables, as well as a planned or fixed completion date for the finalisation and handover of contract-work deliverables.

2.3

For contract-work deliverables, where agreed in the offer, the Contractor will demonstrate to the Client by the completion date, through an acceptance test, that the performance characteristics have been met according to defined acceptance criteria and by means of test data and test scenarios to be provided by the Client.

The Client will accept the contract-work deliverables without delay after handover and/or a successful acceptance test. Immaterial deviations from the agreed performance characteristics and acceptance criteria do not entitle the Client to refuse acceptance. The Contractor's obligation to remedy defects under "12. Warranty" remains unaffected.

As soon as components or partial results are put into productive use by the Client, they are deemed accepted. This does not apply, however, if the productive use despite existing defects, or the continued use despite knowledge of the defect, serves merely to limit damage (e.g. emergency use to prevent greater harm) and the Client notifies the Contractor of this in writing. Acceptance requires a protocol signed by both parties confirming that the agreed service conforms to the acceptance criteria. A list of the defects identified during acceptance is attached. Defects are divided into defect classes. The Client is entitled, after setting a reasonable grace period, to withdraw from the contract in whole or in part if the Contractor exceeds the agreed acceptance date by more than ten calendar days, the system is not capable of acceptance, and the Contractor is responsible for this. A reasonable grace period is generally a further period of ten calendar days. The following defect classes are agreed for acceptance:

Defect Class 1

Fit-for-purpose use (economically reasonable use) is impossible or unreasonably restricted or impeded by such defects.

Defect Class 2

Fit-for-purpose use is not impaired to such an extent that the acceptance test cannot nonetheless continue. These defects are remedied, as far as possible, during the agreed duration of the acceptance test.

Defect Class 3

Fit-for-purpose use is not restricted, or only immaterially restricted, by these defects.

Defects of defect class 1 constitute "material deviations",

defects of defect classes 2 and 3 constitute "immaterial deviations".

The final classification of defects into one of the above defect classes is made by mutual agreement between the contracting parties. Acceptance is deemed to have occurred once the last defect of defect class 1 has been remedied. Defects of defect classes 2 and 3 remaining after acceptance are remedied under warranty according to a schedule to be jointly prepared.

Neither the acceptance test may be extended nor acceptance refused on account of defects in devices and programs from other manufacturers not supplied under this contract, and/or operating errors for which the Contractor is not responsible.

2.4

The Client will provide the Contractor, free of charge, with the necessary working conditions (such as system capacity, display terminals, premises, telephone and network connections, etc.). Where applicable, further responsibilities of the contracting parties are listed in the offer. In performing the services, the Contractor depends on the Client fulfilling its assumed responsibilities on time. If this does not happen and delays and/or additional effort result, the Contractor may, without prejudice to further statutory rights, demand a reasonable adjustment of the schedule and the prices.

3. Changes to the Scope of Services

3.1

Either contracting party may request changes to the agreed scope of services from the other contracting party in writing.

Upon receipt of a change request, the recipient will examine whether and under what conditions the change is feasible, and will inform the requesting party of its approval or rejection in writing without delay, giving reasons where applicable. If a change request from the Client requires an extensive review, this will be agreed separately. The effort involved in this review may be charged by the Contractor.

3.2

Contractual adjustments to the agreed conditions and services required for a review and/or a change are set out in writing (additional change agreement/offer) and are formed in accordance with Clause 11.3.

4. Performance Obligations

4.1

Hagen+Triebsch GmbH does not guarantee the availability of the relevant internet web servers. This applies in particular to cases in which the web servers cannot be reached over the internet due to technical or other problems that are outside the sphere of influence of Hagen+Triebsch GmbH (force majeure, fault of third parties, etc.).

5. Domain Registration, Indemnification, Domain Disputes

5.1

When procuring and/or maintaining internet domains, Hagen+Triebsch GmbH acts solely as an intermediary in the relationship between the customer and DENIC or another domain-allocation organisation. Hagen+Triebsch GmbH has no influence over domain allocation. Hagen+Triebsch GmbH therefore gives no guarantee that domains applied for on behalf of the customer will be allocated at all, and/or that allocated domains are free of third-party rights or will remain in existence permanently.

5.2

The customer guarantees that the domain applied for by it does not infringe any third-party rights. The customer indemnifies Hagen+Triebsch GmbH, as well as any other persons involved in the registration, against third-party claims for damages and any expenses arising from the unlawful use of an internet domain by, or with the approval of, the customer.

5.3

Insofar as .com, .net or .org domains are the subject of the contract, the customer acknowledges that, under ICANN's guidelines, disputes over the domain concerning the infringement of trademark, name or other proprietary rights are to be resolved in accordance with the Uniform Domain Name Dispute Resolution Policy (UDRP). It is the customer's responsibility to assert its rights itself in any proceedings brought by it or by a third party under the UDRP. The customer, in turn, indemnifies Hagen+Triebsch GmbH against all claims.

6. Internet Presence, Content of Internet Pages

6.1

The customer is obliged to identify content placed on its internet page as its own content, stating its full name and address. The customer is advised that a further statutory identification obligation may exist, for example, if telemedia or media services are offered on the internet pages. The customer indemnifies Hagen+Triebsch GmbH against all claims arising from a breach of the aforementioned obligation.

6.2

The customer's internet presence and any banners displayed on it must not violate statutory prohibitions, public morals, or third-party rights (trademark, name, copyright, data protection rights, etc.). In particular, the customer undertakes not to offer, or allow to be offered, pornographic content. The customer may not register its internet presence with search engines if, in doing so through the use of keywords, the customer violates statutory prohibitions, public morals or third-party rights. For any breach of the above obligation, the customer is liable in full and indemnifies Hagen+Triebsch GmbH against all claims.

6.3

Hagen+Triebsch GmbH is not obliged to check the customer's internet presence for possible legal violations. Upon becoming aware of legal violations or of content that is impermissible under Clause 6.2, Hagen+Triebsch GmbH is entitled to block the relevant internet page. Hagen+Triebsch GmbH will notify the customer without delay of any such measure.

7. Prices and Payment Terms

7.1

Contract-work and service deliverables are charged at the fixed price stated in the offer, or on a time-and-materials basis after completion or acceptance of the services, unless a different billing arrangement is agreed in the offer or order.

7.2

For contract-work and service deliverables billed on a time-and-materials basis, the labour and travel time incurred, as well as the parts consumed, are charged at the prices stated in the offer applicable at the time the service is rendered. Other services, including accommodation and travel costs, are charged in addition.

7.3

Prices stated in the offer for contract-work and service deliverables billed on a time-and-materials basis may be changed in writing by the Contractor with three months' notice, for the first time 12 months after the contract is formed. Attention is drawn to the Client's right of termination under Clause 15.

7.4

Estimated prices stated in the offer for contract-work and service deliverables billed on a time-and-materials basis are non-binding. The quantities underlying an estimate are based on an assessment of the scope of services made to the best of the Contractor's knowledge. If, in the course of performing the services, the Contractor determines that the estimated quantities will be exceeded, it will notify the Client of this without delay. Until the Client's written consent has been obtained, the Contractor will not exceed the quantities underlying the estimated price and will, if necessary, temporarily suspend performance of its services.

7.5

Value added tax is charged at the rate applicable at the time the service is rendered. If the value added tax rate changes during the term of the contract, the respective periods are deemed agreed separately with the respective tax rates.

7.6

Invoices are due upon receipt by the Client. If, following a reminder from the Contractor, or, in the absence of a reminder, 30 days after the due date, payment has not been received, the Contractor may demand default interest at the statutory rate.

7.7

The Client may only set off against a counterclaim that is undisputed or has been finally established by a court.

8. Deployment of Personnel

8.1

Each contracting party will designate a point of contact for mutual coordination and to resolve any questions arising during the course of performance. The point of contact designated by the Client will provide the Contractor with the necessary information at short notice and will make, or bring about, decisions.

8.2

During the performance of the services, each contracting party is responsible for the selection, supervision, direction, control and remuneration of its own personnel deployed.

9. Subcontracts

9.1

The Contractor may have contract-work and service deliverables performed, in whole or in part, by subcontractors of its own choosing.

9.2

The conditions contained in these Terms and Conditions for the Contractor's personnel apply to the same extent to the personnel of a subcontractor.

10. Confidential Information

The contracting parties will treat material and not generally known matters of the other contracting party with the care customary in business dealings. Any protection of particularly confidential information going beyond this, and the related definition of requirements and conditions, requires the conclusion of a separate written agreement (confidentiality agreement) in each case.

Ideas, concepts, know-how and techniques relating to information processing may be used freely by the contracting parties, insofar as no proprietary rights preclude this.

11. Ownership and Usage Rights

11.1

Materials are written works or other copyright-protected works (work products) that are handed over to the Client, in accordance with the agreed scope of services, in written, machine-readable or other form of representation, such as programs, program listings, utility programs, documentation, protocols, drawings and similar works. The term "materials" does not include programs that are subject to their own licence terms.

11.2

Changes and modifications to existing materials are identified in the offer as "adaptations". Before carrying out an adaptation, the Client will present to the Contractor the corresponding consent of the rights holder of the existing material.

11.3

The Contractor specifies the materials handed over to the Client. The Contractor or third parties hold all ownership or usage rights (including copyright) to the materials that arise during, or already existed prior to, the performance of the services. Unless otherwise provided in the offer, the Client receives a copy of these specified materials, together with the irrevocable, non-exclusive, worldwide right to use, execute, reproduce, display, transmit and distribute copies of these materials within its own company. The Client is obliged to affix the copyright notice and other ownership notices to every copy made under these conditions.

11.4

For the purposes of these Terms and Conditions, "company" means any legal entity (limited liability company, stock corporation, etc.) as well as any subsidiary in which a shareholding of more than 50 percent is held.

11.5

The following applies to inventions that arise or are developed at either contracting party during the performance of the services and for which proprietary rights are applied for:

11.5.1

Inventions made by the Client's employees belong to the Client, and those made by the Contractor's employees belong to the Contractor. For these inventions, as well as for any proprietary rights granted for them, the contracting parties grant each other, for their own company, a non-exclusive, irrevocable, worldwide and royalty-free licence.

11.5.2

Inventions made jointly by employees of the Client and of the Contractor, and any proprietary rights granted for them, belong to both contracting parties. Each contracting party has the right to grant licences for such inventions to third parties or to transfer its rights, without notifying the other contracting party or making any payment to it.

12. Warranty

12.1

For contract-work deliverables, the Contractor warrants that the performance characteristics agreed in the offer are met and correspond to the subject matter of the service.

The warranty period begins upon acceptance (Clause 2.3) and lasts 12 months. During this period, the Contractor will remedy justified defects by way of two attempts at subsequent performance, choosing at its discretion either rectification or replacement delivery. For defects of defect class 3, the Contractor may, at its discretion, provide a workaround and finally remedy the defect with the delivery of the next update.

The Client's right to rescind the contract or reduce the price is excluded during this period. If rectification fails repeatedly and further waiting is unreasonable for the Client, it may withdraw from the contract or reduce the remuneration. In addition, the Client may, within the scope of the statutory provisions, demand damages in lieu of performance or reimbursement of futile expenditure.

12.2

The warranty lapses for any program that the Client modifies or otherwise interferes with, unless the Client proves that this was not the cause of the defect.

12.3

The Contractor may demand reimbursement of its expenses if it has acted on the basis of a defect report and proves that it is not responsible for the defect.

12.4

No warranty claim exists for service deliverables. If, in connection with a service deliverable, the Client asserts substandard performance for which the Contractor is responsible, the Client must substantiate this in detail.

13. Liability

13.1

The Contractor is liable without limitation

• in cases of intent, gross negligence and gross organisational fault,
• for damages resulting from injury to a person, regardless of the type of fault,
• where a guarantee has been assumed.

13.2

In the event of a breach of material contractual obligations and significant breaches of duty, the Contractor's liability is limited to the amount of damage typical for the contract and foreseeable.

13.3

In all other cases, the Contractor's liability is limited to the contractually owed remuneration, but no more than

• EUR 3,000,000.00 for personal injury
• EUR 1,000,000.00 for property and financial loss

Limited accordingly.

13.4

Liability under the Product Liability Act remains unaffected.

14. Third-Party Rights

14.1

The Contractor will defend the Client against all claims arising from an infringement of an industrial property right or copyright by materials used in accordance with the contract, and will reimburse the Client for costs and damages imposed by a court or contained in a settlement previously approved by the Contractor, provided that the Client has notified the Contractor of such claims in writing without delay and has reserved to the Contractor all defensive measures and settlement negotiations. If such claims have been asserted or are to be expected, the Contractor may, at its own expense, modify or replace the materials. If this, or obtaining a right of use, is not possible with reasonable effort, the Client agrees to return the materials to the Contractor. In this case, the Contractor will reimburse the Client at most the amount paid to the Contractor for creating these materials.

14.2

The Contractor's liability is excluded if third-party claims are based on the fact that

1. components provided by the Client are incorporated into materials, or
2. the Contractor, in creating the materials, had to observe designs, specifications or instructions supplied by the Client or by third parties on the Client's behalf, or the materials are modified by the Client or used under conditions of use other than those specified, or
3. the materials are combined or used with other materials not supplied by the Contractor as part of the system, or the materials are combined or used with a product, data, facilities or business methods not supplied by the Contractor, or
4. the materials are distributed, operated or used in the interest of third parties outside the Client's company, or
5. the infringement of a proprietary right or copyright occurs only through materials not originating from the Contractor.

14.3

The Client indemnifies the Contractor and its subcontractors against any liability for third-party claims arising from an unauthorised handover for processing under Clause 14.2, unless the Contractor or its agents acted with intent or gross negligence.

15. Termination

15.1

For fixed-term or open-ended service or contract-work agreements directed towards the regular provision of services, the mutual notice period during the first 6 months of the term is one month to the end of the month. After a term of 6 months, the contractual relationship may be terminated by either party with two months' notice to the end of the month.

15.2

Contract-work agreements involving a one-off deliverable may be terminated at any time. In the event of early termination, settlement is made in accordance with Section 649 of the German Civil Code (BGB).

15.3

Following termination under Clauses 15.1 and 15.2, the Contractor will stop all work on the affected subject matter without delay, or in accordance with a schedule agreed with the Client. The Client pays the agreed price less the proportional price for that agreed scope of services which was saved as a result of the termination.

15.4

If the Client terminates for reasons attributable to the Contractor, it pays the price only for those parts of the services received that are usable to it.

15.5

Insofar as contractual conditions are by their nature not time-limited, they continue to apply after termination of the contractual relationship and in respect of any successors in title or assignees.

15.6

Any termination requires written form.

16. Business Partners

The Contractor has entered into agreements with certain partners (hereinafter referred to as business partners) for the marketing and support of their products and services. Insofar as a business partner brokers contract-work and service deliverables under these Terms and Conditions, these Terms and Conditions apply exclusively.

However, the Contractor is not responsible for the business activities of the business partner, nor for any commitments the business partner makes to the Client, nor for products and services that the business partner offers under its own contracts.

17. Data Protection

We, the company Hagen+Triebsch, hereby declare that, in software development, in our products and in the provision and operation of our software, we meet at least the rules and requirements of the federal data protection laws. In many areas, our measures go beyond the statutory provisions and recommendations.

This declaration also applies to all our employees and subcontractors engaged by us. This applies in particular to our service providers, who provide us with the technical infrastructure and guarantee that data is held on servers in Germany.

It does not apply to the users of our software.

Our current privacy policy, which in particular meets the extended requirements of the EU GDPR, forms part of these Terms and Conditions.

18. General Provisions

17.1

The transfer of rights and obligations under a contract requires the prior written consent of the Client and the Contractor only if it is not a transfer to an affiliated company or to a successor in title. Consent may only be refused for good cause.

17.2

Otherwise, a third party may, at most, assert rights under a contract in accordance with Clauses "14. Third-Party Rights" and "13. Liability".

17.3

The use of trademarks, trade names or other designations in advertising or in other publications requires the prior written consent of the rights holder.

17.4

The Client agrees that the Contractor and its affiliated companies may store and use its contact information, including names, telephone numbers and e-mail addresses, in all countries in which the Contractor and its affiliated companies conduct business. Such information may be processed and used within the scope of the existing business relationship and may be passed on to subcontractors and agents of the Contractor and its affiliated companies for the purposes of joint business activities, including communication with the Client.

17.5

Before the Client or the Contractor takes legal action for failure to fulfil a contractual condition, the party concerned must be given a reasonable opportunity to perform.

17.6

Amendments and additions require written form. This also applies to the waiver of this clause.

17.7

It is the Client's responsibility to comply with the import and export laws of the Federal Republic of Germany.

17.8

The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

17.9

The exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship is Hamburg.

17.10

Should any provision or part of the contract be or become wholly or partly invalid, the validity of the remaining provisions shall not be affected. A wholly or partly invalid and unenforceable provision shall be deemed amended to the extent, in terms of time and substance, that is permissible under the applicable law. In any event, the parties are obliged to agree on a substitute clause which, in a permissible and enforceable manner, closes the gap in the contract in keeping with its intent.