General Terms And Conditions

General contractual obligations and training conditions of the ITSM Consulting GmbH.

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General contractual obligations of the ITSM Group

("ITSM Group" indicates henceforth the group of companies of the ITSM Consulting GmbH and all companies where the ITSM Consulting GmbH is a majority shareholder and will henceforth be generally and for each single entity of the group of companies identified as "Contractor")

§ 1 Subject Matter

(1) Individual orders are subject to the service contract law insofar as the application of the work and services contract law has not been explicitly agreed.

(2) The following conditions settle the conducting of the individual order signed with the customer. The contractual relationship is subject to the service contract law insofar as the application of the work and services contract law has not been explicitly agreed.

(3) Performance and quality descriptions of the contractor in the scope of individual orders do not fundamentally constitute guaranteed properties.

§ 2 Remuneration 

(1) The remuneration amount depends on the rates of the respective individual orders.

(2) If a fixed price is not agreed, the vicarious agents of the Contractor will record daily working times and activities in an activity report. The activity reports are sent to the Customer for checking, for each passed month. 

(3) The settlement and invoicing take place on a monthly base. Each payment is due without deduction two weeks after reception of the invoice. 

(4) If the Contractor provide owed services on request or with the consent of the Customer outside of its business premises, the Customer takes it upon himself to the additional payment of travelling expenses and costs in accordance with the following proviso:

  • Flight: Business Class (net costs)
  • Train: 1st class (net costs)
  • Car: Fiscal kilometre flat-rates at the main office of the Contractor: min. 0,40 €
  • Hotel: According to expenditure, max. 4 stars (net costs)
  • Public transportation, taxi and parking costs: According to expenditure (net costs)
  • Daily expenses: 30 € starting with 8 h
  •  Absence per day fee for travelling times: 80 % of the agreed fee/max. 10 h per day

(5) All prices are considered plus the respectively valid Value-Added Tax.

§ 3 Involvement Obligations of the Customer

(1) The Customer names a reference person, who will be available to the Contractor as contact person for all questions of the respective individual order and is the sole competent to make decisions.

(2) The Customer takes it upon himself to support the Contractor to the best of his ability in executing the respective individual order. 

(3) The collaboration duties in detail will be agreed in the respective individual order.

(4) Insofar nothing deviating is agreed in the individual order, the collaboration duties include especially:

• The transfer of the necessary order documentation at request at the beginning of the order

• The naming of competent employees for obtaining the information

• Making available the access possibilities to all technical amenities of the Customer, which are necessary for the execution of the respective individual order 

• The execution of backup measures, insofar as work results of the Contractor are stored or saved on the systems of the Customer

• If services are provided on the premises of the Customer, he is obligated to make suitable workplaces available during the usual working hours

(5) If the Customer is in default with performing the collaboration duties and the further providing of services is hampered by the neglecting of the collaboration duties, then the agreed terms will be deferred by the time of the delay. In this case, the Contractor is entitled to request a suitable compensation for the duration of the delay. The Compensation, however, is reduced proportionally, as the Contractor would have been demonstrably able to employ his staff, despite the existing hindrance, in this project or other projects, especially for such performed for the Customer.

(6) The Customer will notify the Contractor of the discontinuance of the hindrance 5 (five) working days before the continuation of the project becomes possible, if the latter has informed that the staff will be employed in different projects. 

§ 4 Performing of the Services

(1) The Contractor is entitled to allocate services to subcontractors.

(2) Excepting the Starting and Ending date of projects, or delimitable and economically independent services, all target dates are non-binding, unless they have been explicitly marked as binding. 

(3) The Contractor will inform the Customer about foreseeable delays, as soon as these become discernible for him. The Contractor will inform the Customer in a timely fashion regarding the exceeding of binding target dates.

(4) Bindingly agreed target dates are automatically deferred by the time periods in which the Contractor is hindered in providing the collaboration duties by circumstances beyond his control.

(5) The Contractor has to provide a documentation corresponding to the general requirements.

§ 5 Scope of Services/Change of the Scope of Services/Service Location

(1) The agreed Scope of Service is:

  • The Scope of Service described in the individual order
  • The Functionality described in the individual order
  • The interfaces described in the individual order
  • The Volume described in the individual order

(2) Agreed target dates are deferred, respectively deadlines are extended by the time period required for the performing of the changes regarding the agreed Scope of Service.

(3) The additional costs arising from the change is to be compensated by the Customer at the hourly fees in accordance with the individual order. If a fixed price is agreed and the performing of changes requires an additional cost, the Contractor will create a binding change offer at a modified fixed price before performing the changes. If the creation of the modified offer requires a not negligible cost, the creation is to be compensated separately.

(4) The place of execution for all services is the place of business of the respective Contractor.

§ 6 Rights of Use and of Property

For all the system created by the Contractor in the scope of this contract, as well as for all other work results, the following licence agreements apply:

a) The Contractor grants the Customer a non-exclusive, unrestricted and non-transferable usage right to the know-how arising from the providing of the service, the devised development methods, generally usable modules, as for instance program routines and drivers, the ideas, the concept, other foundations of the work results, as well as all other marketable property rights, if and insofar he is the owner of the exploitation rights of the previously named rights.

b) The Contractor is entitled to unrestrictedly employ the know-how arising from the providing of the service to any and all purposes. This especially applies to the purpose of consulting. The Customer will not sign contracts with third parties, which would hinder the application of this know-h 

§ 7 Liability

(1) Under reserve of the following provision, the Contractor will pay compensation only amounting to maximum € 1 Million per individual order.

(2) For indirect damages, like lost winnings, any liability is excluded.

(3) For deliberate or recklessly caused damages and injury of life, body or health, or insofar as the product liability law applies, the limitations above, under paragraph 1 and 2 do not apply.

(4) If the Customer desires a more extensive insurance against the event of damage, the parties will provide for it by means of individual agreements.

§ 8 Defects of Title/Guarantee Acceptance

(1) If the Contractor is commissioned to perform customisations or changes to the services or products of third parties, then defects of title caused by the services are not subjected to the responsibility of the Contractor. The costs and expenses arising from warding off such defects of title will not be attributed to the Contractor. 

(2) Insofar the Contractor makes changes to the Customer's tools, the Contractor does not assume liability for flaws already present in the tool.

(3) The Customer bears the burden of proof, that it is not an error already existing in the tool.

§ 9 Confidentiality, Data Protection

(1) The parties obligate themselves, to treat all the knowledge of trade secrets and confidential information of the other party obtained in the scope of this contractual relation and the respective individual orders confidentially, even beyond the duration of this contract. Both parties will obligate all persons employed in the scope of the performing of services pertaining to the contract within the respective individual orders to keeping the confidentiality and provide proof of it upon request.

(2) Information counts as confidential even if it is not explicitly marked as such, however the respective transmitting party has a discernible interest in its secrecy.

(3) The obligation to confidential treatment applies to the know-how obtained in relation with executing the contract by the contractor, not for general economical and technical know-how.

§ 10 Fiduciary Duty

(1) The parties oblige themselves to mutual loyalty. It is to be refrained from especially the active head-hunting of employees and subcontractors of the respective other contractual partner.

(2) In addition, they oblige themselves to employ in their own name or by means of third parties or otherwise engage no employee of the respective other contractual partner for the duration of the frame contract, as well within 12 months after the expiration of the frame contract, unless the respective other contractual partner agrees to it in written.

(3) For each case of infringement, the parties agree to a global contractual penalty amounting to 3 monthly remunerations of the head-hunted employee or subcontractor.

§ 11 Miscellaneous

(1) This frame contract and the individual contracts are subjected to the law of the place of business of the respective contractor.

(2) The court of jurisdiction is the place of business of the respective contractor.

(3) Amendments or changes to this frame contract require the written form. This also applies to the present clause.

(4) Should individual provisions of the present frame contract be or become fully or partially ineffective, then the rest of the frame contract remains effective. The same applies insofar this frame contract contains a legal gap. Instead of the fully or partially ineffective or missing provision, that, which the parties would have agreed to with rational appraisal of the full or partial ineffectiveness or the lack of a provision, had they been aware of the circumstance, takes effect.

Special dispositions for work performances: Fundamentally, all services of the Contractor are provided in the scope of service contracts. If contracts for work and labour are explicitly agreed upon in an individual order, then the following provisions will apply in a complementary manner.

§ 12 Acceptance

(1) Services provided by the Contractor in the scope of contracts for work and labour are to be immediately accepted by the Customer. After being notified of the completion by the Contractor, the Customer will test the finalised services if needed.

(2) The test phase will last a maximum of four weeks. It begins with the reception of the finalisation notification. If no or only negligible faults occur, the Customer is obligated to declare acceptance. 

(3) If in the opinion of the Customer errors exist, he has to notify of them in written, in comprehensible form, within a week after the end of the test phase. Otherwise, the service counts as provided in accordance with the contract.

(4) The acceptance takes place at the latest, if the Customer has used the delivered system to other than testing purposes.

(5) The Contractor is obligated to eliminate existing defects within an adequate time frame. After eliminating the defects, the system counts as accepted, insofar as no other defects exist and are communicated to the Contractor.

§ 13 Guarantee

(1) The Contractor guarantees the freedom of defects for its services within a guarantee period of six weeks. 

(2) The guarantee period starts with the acceptance.

(3) Should defects occur, the Customer will document them in an error log in comprehensible form and send the error log to the Contractor. The Contractor is obligated to begin the fault correction within the time periods specified in the individual contracts.

(4) If the fault is not corrected within an time period adequate for the fault correction of at least four weeks since the fault has been communicated, the Customer is entitled to request a discount of the compensation or rescission of the contract instead of the fault correction.

(5) The guarantee is forfeit for the entire system or for delimitable components, where the Customer has intervened or which he has modified, unless the Customer can prove that the intervention or the change is not responsible for the fault.

(6) If the Customer has notified the Contractor of a fault, without there actually being an error, the Contractor can request an appropriate compensation for his activity in the scope of the hourly fees agreed in the present contract.

 

General Training Conditions of the ITSM Group 

("ITSM Group" indicates henceforth the group of companies of the ITSM Consulting AG and all companies where the ITSM Consulting AG is a majority shareholder and will henceforth be generally and for each single entity of the group of companies identified as "Contractor") 

§ 0 Extension of the General Contractual Obligations of the ITSM Group

The "General Training Conditions of the ITSM Group" are extensions of the "General Contractual Obligations of the ITSM Group" and insofar as not otherwise explicitly provisioned, the "General Contractual Obligations of the ITSM Group" will apply

§ 1 Application

The application for a training has to be directed in written (via fax or web-form on our web site) to the Contractor. Should the application have occurred by phone, it has to be confirmed in written by the Customer within 5 days.

§ 2 Training Fees

The training fees are invoiced to the Customer 10 calendar days before the beginning of the training. Each payment is due without deductions two weeks after reception of the invoice.

§ 3 Appointments and Cancellations

(1) The binding appointment, as well as the place of the event for a training event of the Contractor result from the written order confirmation. The Contractor can move the place of the event with an advance notice term within the country. In this case, the customer is entitled to an extraordinary cancellation right.

(2) The Contractor reserves his right of calling off the execution of a training confirmed in written up to 14 (fourteen) days before the planned beginning of the training if the minimum number of 4 (four) training participants has not been reached. In exceptional cases, the training also be cancelled due to other important reasons immediately before the beginning. This is particularly the case if the referent goes suddenly ill or force majeure occurs.

(3) If the appointment is cancelled or the place of the event is moved by the Contractor and a termination from the customer takes place, where applicable, already paid training fees are fully reimbursed. Claims extending beyond, in particular the reimbursement for contingent travelling expenses, will not be accepted.

§ 4 Retirement of the Customer

(1) If the Customer rescinds a firmly booked training, then in the case of a written rescission until 4 (four) weeks before the training begins, no processing fee will be charged.

(2) In the case of a later rescission of the training, 75% (seventy-five percent) of the training price plus the legal Value-Added Tax will be charged.

(3) If the announced participant should be impeded to the booked training, the Customer can send a replacement participant at any time, free of charge.

§ 5 Liability Exclusion / Copyright

(1) The materials and documents utilised in the training have been created exclusively for training purposes, respectively for presentation purposes. The compilation of figures and texts takes place with utter care, however errors are not excluded.

(2) The Contractor does not assume any warranty for faulty information and its consequences. Such indemnity claims are excluded, insofar as they have not been caused by gross negligence or deliberately.

(3) The training documents are protected by copyright and destined exclusively for the personal use of the training participants.