General Terms and Conditions of Trade of the P&S GmbH
1. Validation of the P&S GmbH GTCTs
The general terms and conditions of trade are valid for all contracts, deliveries and services. Existing GTCTs of clients do clearly not become subject matter of contract even so that P&S GmbH does not specifically objects these existing client GTCTs. In case of the client refuses the following GTCTs of P&S GmbH, the client is obliged to indicate this in advance in written form.
2. Reservation of ownership
All delivered commodities remain until their complete payment of all account receivables, resulting out of the business relationship between the client and P&S GmbH in main- as well as auxiliary objects, property of the P&S GmbH. The client is obliged to properly insure (scilicet: larceny-, fire-, water protection as well as low voltage current insurance) all delivered commodities that where delivered within P&S GmbH reservation of ownership. Furthermore is the client willing to proof the insurance verification to P&S GmbH, if P&S GmbH is asking for this. In case of damage is the client’s insurance cover directed to the P&S GmbH. The client accepts that he is not authorized to regulate insurance claims for all delivered commodities that still belong to the property of the P&S GmbH, (all objects for which the reservation of ownership is present in principal). Regarding garnishment or impoundment of reserved P&S property, the client is obliged to immediately inform P&S in written form about all individual circumstances. Furthermore is the client indentured to instruct potential involved third parties about the existing P&S GmbH reservation of ownership in an appropriate manner.
Nevertheless, in case the client is disposing the of ownership reserved deliverables, with the previous acceptance of the P&S GmbH, the client of P&S GmbH accepts to relinquish all claims towards its consumers while contract arrangement with the P&S GmbH. The client is obliged to provide the P&S GmbH with all relevant information as well as necessary cooperation actions, in order to enforce the P&S GmbH to entitle their legitimate interests.
3. Limitation of Liability
Respectively to legal regulations is P&S GmbH liable for intention and culpable negligence. In the matter of ordinary negligence, P&S GmbH is liable only, if a substantial contractual commitment (cardinal duty) is violated or an instance of delay or impossibility is present. In case of a P&S GmbH liability, resulting from ordinary negligence, the accountability is limited to damages which are predictable or typical due to the misconduct. A liability concerning the absence of guaranteed characteristics, due to fraud, for personal damages, defects of title according to the product liability law and the Federal Data Protection Act, remain untouched. In the event of an occupation of P&S GmbH, resulting from ensured warranty or accountability, the client’s contributory fault has to be considered reasonable, particularly by insufficient error message reporting back to the P&S GmbH as well as inadequate backup of data.
Insufficient data backup is in particular then present if the client neglects frequently decent data backups that match state of the art techniques and methodologies to protect information against exterior actions especially from computer viruses or other types of manipulation that may lead to corruption of individual data records or in the worst case scenario to the endangerment of the entire database. This section does not apply in case that P&S is providing the software solution via Cloud-Service, as some of these duties will be handled by P&S (details see section 9).
4. Warranty
P&S GmbH guaranteed that the merchandised commodities are free from deficiencies which would lower the product’s value or the products capability to perform ordinary, or depending on individual contract terms required utilization because of malfunction. Both, P&S GmbH and the client do agree, that accentuated Hard- and Software functionality declarations and specifications mentioned within manuals or price sheets are not equate to specific warrant of Hard- and Software properties. The warranty period amounts to 12 month and begins at the day of consignment. If the client is a customer for the purpose of Civil Law Code the warranty period accounts for 24 month. The warranty does not include the disposal of deficiencies that are caused through conventional common attrition, exterior influences or operating errors. The warranty expires if the client or in his name third party entities are changing setup configurations on Hard-, Software or auxiliary equipment without acquiescence of the P&S GmbH, unless the client can completely verify that the justified claims and defects neither partially nor fully are caused throughout the enforced changes as well as the rectification of deficiencies is not aggravated.
In case of warranty utilization on the part of the client towards the P&S GmbH and it is exposed that no deficiency is existing or the alleged defect warrant claim is not lying within the area of warranty accountability of the P&S GmbH, the client’s responsibility toward P&S GmbH is characterized through reimbursement of all originated expenditures as far as the clients warrant claim can be considered as negligently or intentionally.
5. Additional regulations regarding Software warranty
The client’s responsibility lies within contemporary validation of the delivered software, regarding software completeness and obviously absence of defectiveness and its immediate written response if the software consignment check is not adequately. The P&S GmbH guarantees for a 12 month period after the point of delivery that the software will correspond in functionality and content to the contractual agreed program description and program usage. Is the client a customer for the purpose of Civil Law Code the warranty period accounts for 24 month. Is a software deficiency occurring, so is the client encouraged, to draw up a written deficiency notification which describes as precisely as possible what kind of deficiency is existing (e.g. screenshot of system error message), to provide the P&S GmbH with sufficient error information to reproduce the reported software deficiency as well as its elimination of potential user handling errors (e.g. brief indication of carried out working steps). No warranty can be carried over that the provided software is fully compatible to other, already at the client’s business, existing software applications and their invariably unproblematic interaction between each other. The exceeding delivery of software manuals, explanations and personal trainings, besides the commonly valid extend of software documentation (program description / how-to material) as well as the within the software implemented online help functionality is only owed, if these deliveries where contractually stipulated (in written form) between the contracting parties. In case of such an agreement, requirements concerning content, language and extend of a conventional software manual / documentation are inapplicable and the delivery of a quick reference guide will be sufficient, unless, both contracting parties did agree on additional software specification deliberations.
6. Confidentiality
P&S GmbH and its clients do commit correspondingly to each other to conceal all business- and corporate secrets that may emerge from the mutually collaboration with each other for unlimited time. Furthermore have all business insides be kept under wraps and not be shared with any third party entity or uses in a self-serving interest. All documents, drawings as well as other information which are exchanged between the contracting parties must be used only within the previously mutually agreed purpose of contract.
7. Protection of privacy
The P&S GmbH retains the right to elevate, to process and to use, inventory data, accounting data and application data of the client, as far as necessary in order to fulfill the contractual terms of agreement. For all other purposes (e.g. consulting, advertisement, market research), P&S GmbH is not authorized to process or use the clients inventory data, as well as sharing data with third parties.
8. Clause of evidence and onus of proof
Electronical data information that is kept / stored within the P&S GmbH databases or registries is qualified as reliable evidence to verify the exchange of data transmissions, existing contracts and accomplished payments between the parties. Does the client is appealing within its conclusion of contractual framework to an abuse of its identity, so is he instantaneously obliged towards the P&S GmbH to exhibit all hereto available actualities and evidence. In case of a violation of this obligation and the existence of sufficient evidence for the client’s actions without visible actions of third parties, bears the burden of prove within the client responsibility, to witness the abuse of his identity.
9. Regulation of service contracts and service levels (SLAs)
9.1 Commercial components of service
Software maintenance and deployment of software updates will take place complimentary. Implementation of server access will take place complimentary. First level support regarding software handling / trouble shooting as well as error analysis via remote maintenance will take place free of charge. The above mentioned service deliverables do not tend upon software, that was developed and implemented by the client or third parties or software / programs that was originally delivered by the P&S GmbH and was changed subsequently by the client or third parties of the client. The P&S GmbH adduces within their ordinary business hours, in the absence of extra compensation, the following services:
- All arrangements that are considered as necessary to observance the operational conditions of programs and their functionalities.
- Call center first level support and consulting regarding analysis and rectification of software disturbances and errors.
- Elimination of software disturbances which are clearly analyzable by the P&S GmbH and that are consequently reproducible within the latest, unmodified program version. Please note that the software disturbance rectification can consist of a bypass- or transitional software solution, depending on the software problem situation and severity.
Deployment of software updates and their implementation within cloud software solutions In case of software maintenance / service operations does the client provides P&S GmbH as far as possible with all helpful information that are feasible to solve the existing software issue. Furthermore grants the client P&S GmbH enough time and opportunities to take actions for necessary service operations. All software malfunction information is reported via mail to the E-Mail address: service@ipus.de. The incident reaction / processing time generally start’s with the receipt / acceptance of customer incident messages that are performed via the above mentioned path. Should incident messages not be reported to / arrive the P&S GmbH via the delineated described path, so can possible delays may occur. Assured incident reaction / processing times can only be guaranteed if incident messages are dispatched via the specified communication ways of the P&S GmbH. The incident reaction / processing times are categorized as follows:
- 48h of processing time for general incident messages / requests
- 12h of processing time for light software disturbances ( software service is accessible but only limited available)
- 8h of processing time for urgent software disturbances (software service is not accessible at all)
9.2 Technical service components
- Server monitoring and E-Mail notification
- Web-Interface reset service
- Twenty-four-seven datacenter stand-by-service
- Redundant data accessibility
- Deployment of Network availability of at least 99%
- Up to a maximum of 2GB of main memory
- Up to 2TB of data exchange / data traffic inclusively
- Daily data backups, including a 30 days data history
- Up to a maximum of 5GB of disk space memory inclusively
9.3 Exclusion of services
The following services have to be compensated separately by the client (conditions below):
- Occupation of P&S GmbH services beyond normal business hours
- Elimination / rectification of software functionality disturbances or damages that is referable to client interventions, user handling errors, not appropriate system usage or others which can be considered as exterior software influences and therefore not being deputized by the P&S GmbH.
- Installation / implementation of software enhancements or applications
- Realization of specific customer desired system enhancements and settings (individual client software customizing)
- System relocation / transfer
- Up to a maximum of 10GB of disk space memory inclusively
- Delivery of system equipment, utilities and expendable parts
9.4 Contract charges according to sales proposal or additional contract agreements
Collected contract charges do represent fixed service rates that are to pay by the client in monthly consistent progress payments, accordingly to the agreed contractual arrangements. All contractual listed amounts are considered as net amounts, exclusive of VAT (value-added tax). The settlement of payable contract charges for following quarters takes place quarterly (insofar not differently negotiated) via E-Mail (pdf-document) notification and dispatching. The accumulation of contested claim or not legally recognized / recourse counterclaims is excluded alike the purchasers right of retention, concerning this matter.:
9.5 Contract duration
All service contracts with Cloud allocation subject to a minimum contract duration of twenty-four (24) month if not differently stipulated. The service contract can be cancelled within a period of three (3) month to the end of each quarter and is automatically renewed for an additional period of twelve (12) month, unless either party notifies the other party within the above-mentioned cancellation period
9.6 Additional charges and standard rates
The above listed “service level components / regulations” (SLAs), do not include any services regarding personal software consulting or training. Please note: Passage 9.3 Exclusion of services. All below listed conditions are considered as net amounts, exclusive of VAT (value-added tax):
- On site working hour 84,00€
- Remote system maintenance 25,00€ per each stared 15 minutes
- Travelling costs 0,58€/km plus travel time 58€/hour or fixed rate
- Air travels and remote work exteriorly Germany will be invoiced accordingly to current law expense regulations as well as travel expenses (against presentation of travel invoice copies)
10. Miscellaneous
Should single clauses of this general terms and conditions of trade get partially or even fully void, so do remain all other clauses still valid. In fact are void clauses substituted by according clauses which represent the intentionally objective most likely. Subsidiary agreements are not appointed. Amendments of a contract only develop efficiency if they are confirmed / acknowledged in written form. The client can resign its business relation rights with the P&S GmbH only with the written agreement of the P&S GmbH. A compensation of the accomplished purchasing price postulation is the client only with accredited or legally ascertained counterclaims possible. Place of jurisdiction is, as far as legally feasible, the place of business of the P&S GmbH in Gera.. It is understood that exclusively German legislation is applied.
Gera, December 2016