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General Terms and Conditions for the Provision of Servicesby ACTANO (“Terms of Service”)

These General Terms and Conditions for the Provision of Services by ACTANO (“Terms of Service”) shall apply to all services that ACTANO GmbH, Paul-Heyse-Strasse 26-28, 80336 Munich (the “Contractor”) provides to the customer (“Client”), except for maintenance services for ACTANO software (such maintenance services being the subject of separate ACTANO License Terms).**
  1. DEFINITIONS
    1. “ACTANO Software” is the ACTANO computer program in object code licensed by the Contractor to the Client under the ACTANO License Terms and the related License Offer, including the associated documentation in the agreed-upon language.
    2. “Offer” refers to the Contractor’s specific Offer indicating the more specific commercial agreements for the provision of the Contract Services (including but not limited to the scope and term of the Contract Services and the price) and establishing a contractual relationship regarding the provision of the agreed-upon Contract Services after acceptance by the Contractor. The corresponding commercial agreements may also be indicated in an order, PO, or the like in lieu of an Offer from the Contractor, provided that the Contractor duly accepts them via an authorized representative; in this case, the term “Offer” as used in these Terms of Service, refers to the corresponding document, and these Terms of Service are likewise deemed integrated
    3. “Client Materials” are all materials, results, software, items, documents, sketches, drawings, drafts, concepts, information, data, etc., that were in existence when the Agreement was signed or that were created, developed, or acquired during the term of the Agreement by the Client or by third parties working for the Client.
    4. “Contractor Materials” are all materials, records, results, software (in all forms, including but not limited to object code and source code), items, documents, sketches, drawings, drafts, concepts, information, data, etc., including their revised versions, that were in existence when the Agreement was signed or that were created, developed, or acquired during the term of the Agreement by the Contractor, its subcontractors, suppliers, and/or other third parties brought in by the Contractor. This includes but is not limited to the work product created in accordance with this Offer, such as custom developments or adaptations of ACTANO software.
    5. “Description of Services” is the specialized technical specification of the Contract Services in an Offer, which the Contractor provides in accordance with the Offer.
    6. “Intellectual Property Rights” are copyrights and related rights, database producer’s rights, patent rights (including rights to the patent and under the patent), utility patent rights, trademark rights, design patent rights, title rights, naming rights, business relationships, domain names, other rights that protect intellectual property under German or foreign law, and comparable rights.
    7. “Contract Services” are the services of the Contractor that the Contractor and the Client agree upon in an Offer. This can include but is not limited to training, consulting, testing support, development, or implementation services.
    8. “Confidential Information” refers to all information and documents of the respective other Party which is designated as confidential or should be regarded as such based on the circumstances, including but not limited to information regarding operational processes, business relationships and know-how. Confidential Information does not include information that (i) can be shown to have already been known to the recipient at the time of acceptance of these Terms of Service or to have subsequently become known to a third party other than through the violation of any confidentiality agreement, legal regulations, or official orders; or (ii) are generally known at the time of acceptance of these Terms of Service or become generally known subsequent thereto other than through a breach of these Terms of Service.
  2. SUBJECT OF THESE TERMS OF SERVICE; PRINCIPLES GOVERNING THE PROVISION OF SERVICES
    1. The Client can hire the Contractor to provide the Contract Services by properly confirming an Offer or by the proper placement of an order by the duly authorized representatives of each of the Parties. If the Parties validly agree to such an Offer, the Contractor shall provide the Contract Services agreed-upon therein under the terms and conditions set forth in the relevant Offer and these Terms of Service.
    2. The Offer shall contain a Description of Services or refer to a Description of Services, which contains the specific details of the relevant Contract Services and delineates the responsibilities of the Parties. If necessary, the Offer can include a project schedule with specific milestones for the relevant Contract Services. The Contract Services, and the Contractor’s responsibilities in this regard, are definitively established in these Terms of Service and the Offer (including but not limited to the relevant Description of Services). The Client can only request further services on the basis of an additional order with separate compensation.
    3. If there are inconsistencies between the provisions of these Terms of Service and the provisions of an Offer, the provisions of the Offer shall take precedence.
    4. To the extent that the Offer sets forth no specific requirements in this regard, the Contractor can provide the services on the Client’s site or remotely, at its own option.
    5. The Contractor shall be entitled to use subcontractors, but remains responsible to the Client for meeting its obligations under this Agreement.
    6. All “Contract Services” are “services” within the meaning of Sections 611 et seq. of the German Civil Code (BGB). To the extent that individual Contract Services are subject to mandatory statutory provisions governing contracts for work and services, Sections 5 and 8 of these Terms of Service shall apply.
  3. CHANGES IN SERVICES
    1. The Client can request a change in the Contract Services in writing at any time (“Change Request”). In such a Change Request, the Client must describe the desired change in detail. If the Parties agree to implement such a change (“Change”), the relevant Offer shall be appropriately adjusted, and the agreed-upon Change shall be appended to the Offer and numbered consecutively.
    2. After receipt of a Change Request, the Contractor shall inform the Client of the likely duration of a detailed review of the Change Request and any costs for the review. If the Client then requests a detailed review of the Change Request under the designated terms and conditions, the Contractor shall perform the review and provide the Client with an Offer to implement the Change Request (“Change Proposal”) within a reasonable period of time – to the extent that the Contractor does not deny the Change Request. The Contractor can deny a Change Request, inter alia, if it is not feasible from a technical or economic standpoint, is outside of the range of services provided by the Contractor, or might conflict with statutory provisions. The Change Proposal shall be binding for the period established therein.
    3. After receipt of the Change Proposal, the Client shall decide whether to accept the Change Proposal. If the Contractor does not receive notice of acceptance from the Client within the period set forth in Section 3.2, the Contractor shall no longer be bound by the Change Proposal and can deny the Change Request. The Contractor’s right to invoice the Client for the expenses incurred for the review of the Change Request (see Section 3.2) shall remain unaffected.
    4. The Contractor can request a Change by sending a Change Proposal to the Client. The Client shall carefully review any such Change Proposal initiated by the Contractor.
    5. A Change shall only take effect when both sides affix legally valid signatures to the Change Proposal. The Contractor shall provide the Contract Services in accordance with the contract provisions currently in force until the Change takes effect.
  4. COOPERATION BY THE CLIENT
    1. The Client shall provide all cooperation and supply all items necessary for the Contractor to properly provide its services. The provision of the Contract Services in accordance with the Agreement largely depends on this cooperation and the supply of the necessary items by the Client and can also require the exertion of appropriate influence by the Client on its agents and assistants, representatives, benefit recipients, other service providers or other third parties (except for the Contractor’s agents and assistants). In providing the Contract Services, the Contractor may rely on statements, instructions, approvals, sign-offs, notices of acceptance, and comparable declarations by the Client. Adherence to and/or implementation of such declarations by the Contractor shall be deemed to be in conformity with the Agreement, and the Contractor is not responsible for the resulting consequences.
    2. To the extent applicable to the respective Contract Service, the Client shall provide the following forms of cooperation and supply the following items, in particular:
      1. The Client shall provide the Contractor with all data and information that is necessary to provide the Contract Services in due time and in the agreed-upon format or otherwise in an appropriate format. To the extent necessary, the Client shall update this data and information. The Client is responsible for the completeness and accuracy of this data and information. The Contractor is not required to make a review.
      2. The Client shall grant the Contractor access to any relevant premises, buildings, infrastructure, system, and tools that are within the discretionary disposition of the Client, its agents and assistants or other third parties hired by the Client to the extent that such access is necessary for the proper provision of the Contract Services. The Offer can specify the terms of this cooperation and the duty to supply various items in greater detail and/or add other forms of cooperation and other duties to supply items or restrict the latter.
    3. The Contractor is not responsible for the consequences of failure to cooperate or supply items or failure to do so properly or on time. Any deadlines and time periods shall be postponed by the duration of the contract violation plus a reasonable period of time needed to properly continue the affected Contract Services. The Client shall reimburse the Contractor for the Contractor’s additional expenses resulting from such a contract violation by the Client. The Client’s payment obligations shall remain unaffected.
  5. ACCEPTANCE
    1. The Contract Services shall only be subject to acceptance by the Client if and to the extent that
      1. this is expressly agreed upon in these Terms of Service,
      2. acceptance is mandated by applicable law or
      3. the respective Contract Services are submitted to the Client for acceptance by the Contractor in its discretion. The acceptance procedure in this Section 5 shall apply to such Contract Services. The Offer may add further details to the acceptance procedure, such as acceptance criteria or procedures for acceptance tests.
    2. Unless a different deadline is provided in the Offer, the Client shall accept the Contract Services within ten (10) business days of their submission for acceptance (“Acceptance Period”) as long as the Contract Services are free of material defects. The Contract Services are “free of material defects” if they substantially fulfill the agreed-upon acceptance criteria. If no specific acceptance criteria have been agreed upon, the Contract Services are free of material defects if they are substantially of the quality described in the Description of Services. Insubstantial deviations from the acceptance criteria or the Description of Services are not material defects and do not prevent acceptance. However, the Contractor shall eliminate such defects within a reasonable period of time by correcting them or providing supplementary performance, at its option.
    3. If there are material defects, the Client shall inform the Contractor of them in writing within the Acceptance Period. If the Client fails to inform the Contractor of any defects preventing acceptance in the proper form by the expiration of the Acceptance Period, the respective Contract Services shall be deemed to have been accepted. The same shall apply if the Client reports defects preventing acceptance in due time and in the proper form and the Contractor resubmits the respective Contract Services to the Client with “defects eliminated” and the Client does not object within ten (10) business days (however, this sequence shall not occur until the expiration of the Acceptance Period at the earliest).
    4. The Parties can explicitly or implicitly agree to partial acceptance of individual segments of the Contract Services. In such case, defects in Contract Services that have been partially accepted cannot be asserted as defects in any Contract Services submitted for acceptance at a later date.
    5. The Client shall have no right of rescission for accepted Contract Services.
  6. PRICES AND PAYMENT TERMS
    1. The Client agrees to pay the compensation agreed upon in the respective Offer. The Parties can agree to fixed prices in the Offer or to compensation based on time and materials.
    2. All prices are exclusive of the legal value-added taxes, tariffs and other taxes or fees. These shall be paid by the Client.
    3. The Contractor shall invoice the compensation after the respective Contract Services have been provided unless the Offer contains a different payment schedule. If the Contractor provides the Contract Services on an ongoing basis (e.g. for two (2) or more consecutive months), billing shall take place at the start of the respective following month.
    4. Payment shall be due within thirty (30) days of receipt of the invoice.
    5. The Client shall not offset any counterclaim or assert any right of withholding based on the same unless the counterclaim is undisputed or has been determined valid by a court of law.
  7. INTELLECTUAL PROPERTY
    1. Client Materials
      1. All Intellectual Property Rights in the Client Materials shall remain with the Client or the respective rights holder.
      2. The Client hereby grants the Contractor a simple, non-transferable right to use the Client Materials and/or to allow them to be used by subcontractors for the term of the Agreement to the extent that this is necessary to provide the Contract Services to the Client.
    2. Contractor Materials
      1. All Intellectual Property Rights in the Contractor Materials shall remain with the Contractor or the respective rights holder.
      2. The Contractor grants the Client a simple (i.e. non-exclusive) and permanent right to use the Contractor Materials furnished to the Client in the course of providing the Contract Services and/or developed for the Client, to the extent that this is necessary for use of the Contract Services in conformity with the Agreement. For this purpose, the Client shall also be entitled to sublicense Contractor Materials to
        1. affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG), and
        2. data center operators, outsourcing providers, and other external service providers of the Client or to permit the latter to use the Contractor Materials solely on behalf of and for the purposes of the Client, and, in the case of affiliated companies, for their own purposes as well.
  8. WARRANTY AND INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES
    1. This Section 8 applies exclusively to Contract Services that must be considered “services under a contract for work and services” [werkvertragliche Leistungen] under mandatory law or an express contractual agreement.
    2. The Contractor warrants that the Contract Services are free of defects. If this requirement is not fulfilled, the Contractor1 shall have the right, at its option, to eliminate this defect by correcting it or by providing supplementary performance. The agreed quality of the Contract Services shall be indicated exhaustively in the Description of Services.
    3. The Client2 must report defects to the Contractor in writing immediately, but no later than within ten (10) days and describe the error symptoms in detail. The Contractor shall reimburse the Client for all additional expenditures resulting from any late report, unless the delay is not based on wrongful intent or negligence.
    4. The Contractor also warrants that the Contract Services are free of the Intellectual Property Rights of third parties that would impair the agreed use of the Contract Services.
    5. If any third party brings claims against the Client for infringement of Intellectual Property Rights, the Contractor may, at its option, eliminate these defects by (i) acquiring the necessary rights for the Client so that the Contract Services no longer infringe any rights of rights third parties or (ii) altering the Contract Services such that, with comparable use by the Client in accordance with the Description of Services, no Intellectual Property Rights of third parties are infringed.
    6. The Client shall, in accordance with the provisions of these Terms of Service, indemnify the Contractor for those third-party claims asserted during the warranty period and determined to be valid by a court of law as referred to in Section 8.5, provided that the Client
      1. informs the Contractor in writing immediately regarding any such claim;
      2. provides the Contractor with all reasonable support requested by the Contractor and
      3. grants the Contractor, as between the Parties, exclusive control and decision-making authority in terms of defending against and settling such claim, at the Contractor’s expense. In this respect, the Contractor shall indemnify the Client for any and all court costs and for attorney’s fees required in order for the Client to defend against the claims, in the amount of the statutory fees. No additional attorney’s expenses charged on a fee basis shall be covered by the Contractor except with its prior written consent. The duty of indemnification shall not apply if the Contractor is not at fault for the infringement of the intellectual property right in question.
    7. The Client only has the right to correct defects on its own or to have them corrected by any third party if the Contractor seriously and conclusively refuses to correct the defects or has failed to take appropriate measures to correct the defect even after a reasonable grace period has expired.
    8. Except in the cases set forth in Section 9.1, claims regarding any defect in the Contract Services, as referred to in this Section 8, shall expire within twelve (12) months.
    9. Section 8 exhaustively describes the extent of the Contractor’s warranty obligation.
  9. LIABILITY
    1. The Contractor shall be liable, without restriction,
      1. in case of wrongful intent or gross negligence,
      2. for any injury to life, limb, or health and
      3. as specified in the German Product Liability Act.
    2. Where ordinary negligence on the part of the Contractor results in the breach of a duty that is material to the achievement of the purpose of the Agreement and on whose fulfillment the Client may normally rely (a fundamental duty), the amount of the Contractor’s liability for claims for losses and for the reimbursement of expenses is limited to the loss or expenses, as the case may be, that is foreseeable and typical based on the type of transaction in question.
    3. The Parties agree that the typically foreseeable loss or expenses, as the case may be, and the associated liability shall not exceed the agreed-upon total compensation for the Contract Services under the Offer affected by the breach of duty.
    4. Any further liability on the part of the Contractor is excluded.
    5. Any liability for indirect losses, incidental losses, lost profits, losses resulting from downtimes or business interruptions, third-party claims or damage to image is excluded unless the prerequisites set forth in Section 9.1 have been satisfied.
    6. In the case of On-Premise Products, the Client shall secure the data properly. To this end, the Client shall make backup copies of all data and programs in machine-readable form at least once a day. In the event of a loss of data for which the Contractor is at fault, the Contractor’s liability is limited to those data-restoration costs that the Client could not have prevented by fulfilling the aforementioned duties or by taking other measures reasonable for the Client.
    7. Notwithstanding Section 8.8, compensation claims of the Client shall otherwise lapse within twelve (12) months—except in the cases set forth in Section 9.1.
  10. CONFIDENTIALITY
    1. The Parties agree to preserve the secrecy of all Confidential Information and to refrain from disclosing the same or otherwise making it available to any third party. This obligation shall remain in effect for a period of ten (10) years after the termination of the Agreement. Affiliates of the Contractor within the meaning of Sections 15 et seq. AktG and the subcontractors used by the Contractor for purposes of fulfilling the duties arising from this Agreement shall not be deemed third parties for the purposes of this provision.
    2. If Confidential Information must be disclosed based on statutory obligations or on a court or administrative order, the recipient so obligated shall, insofar as permissible and feasible, inform the other Party in advance and give it the opportunity to take action against the disclosure.
    3. The Contractor has the right to grant attorneys, certified public accountants and other advisors access to Confidential Information (i) insofar as this is necessary for purposes of preserving the legitimate interests of the Contractor and (ii) the advisors are either under a legal duty of professional secrecy or have previously assumed duties of confidentiality that, for all intents and purposes, are consistent with those set forth in this Agreement.
    4. The Contractor has the right to share Confidential Information to the extent necessary for purposes hereof with agents and assistants and/or technical service providers (e.g., data center operators), insofar as these parties are either under a legal duty of professional secrecy or have previously assumed duties of confidentiality that, for all intents and purposes, are consistent with those set forth in this Agreement.
  11. DATA PROTECTION
    1. Each of the Parties agrees to comply with all data protection laws and related requirements that are applicable in connection with fulfilling its contractual duties.
    2. To the extent that the Contractor cannot be prevented from gaining knowledge of certain personal data under the control of the Client by technical and organizational means when providing certain Contract Services, the Parties shall enter into a contract data processing agreement consistent with the sample presented by the Contractor.
  12. LEGAL REGULATIONS
    1. The Client is responsible for ensuring that its use of the Contract Services is compatible with all statutory and regulatory requirements applicable to the Client.
  13. TERM AND CANCELLATION
    1. These Terms of Service shall apply to all Contract Services provided by the Contractor in accordance with the respective Offer. To the extent that the Offer does not establish a different date, it shall take effect on the date on which the last of the Parties affixes a legally valid signature to the Offer. The Offer can be for an indefinite period of time or a fixed term (“Initial Term”).
    2. Unless otherwise agreed upon, if an Offer has a fixed term, the respective Offer shall be automatically extended for an additional twelve (12) months (“Extension Period”), if it is not terminated by one of the Parties by giving notice three (3) months before the expiration of the Initial Term or an Extension Period.
    3. The right of either Party to terminate the Offer for good cause shall remain unaffected. There shall be “good cause” justifying termination by the Contractor, in particular, if, under the respective Offer, the Client is in default
      1. with respect to payments that constitute a substantial portion of the overall compensation,
      2. and – if there is monthly billing – with respect to the payment of compensation or a substantial portion thereof for two consecutive months and/or
      3. – if there is monthly billing – is in default with respect to payments that correspond to two months’ payments during a period extending over more than two months, and the Client3 does not eliminate this default within thirty (30) days of a warning from the Contractor.
    4. Cancellations must be made in writing in order to be valid.
  14. CONCLUDING PROVISIONS
    1. The Client shall not assign any rights or duties arising from or in connection with an Offer and/or these Terms of Service to any third party except with the prior written consent of the Contractor. The Contractor may assign its rights and duties arising from or in connection with an Offer and/or these Terms of Service to affiliates within the meaning of Sections 15 et seq. AktG.
    2. Changes and additions to these Terms of Service must be made in writing. This also applies to any change or cancellation of this Clause. Electronic documents in text form do not fulfill the writing requirement. Changes and additions to an Offer may also be made in text form (e.g., e-mail).
    3. General terms and conditions of the Client shall not apply even if the Client makes reference to them in its orders or other documents.
    4. Every Offer and these Terms of Service are exclusively subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN CISG).
    5. The place of performance is the registered office of the Contractor. The exclusive venue for all disputes arising from or in connection with an Offer and/or these Terms of Service is the Regional Court of the district where the Contractor has its registered office.
    6. Generally, if any individual provision of these Terms of Service proves to be invalid, this shall not affect the validity of the remaining provisions hereof. The Contracting Parties shall use their best efforts to replace the invalid provision with a valid provision that is legally and economically as consistent as possible with the purpose of the Agreement.