General Terms and Conditions
As at 1 January 2024
This is a translation of the German original for the convenience of our English-speaking customers. In the event of any discrepancy, the German version (Allgemeine Vertragsbedingungen der beyondbots GmbH) prevails.
General Terms and Conditions of Contract of beyondbots GmbH — AV beyondbots
Version 1.0
1. Remuneration, payment, retention of title, dates
1.1 Unless agreed otherwise, remuneration is calculated on a time and materials basis at the provider’s prices generally applicable at the time the contract is concluded. Remuneration is always quoted net, plus value added tax at the statutory rate.
The provider may invoice monthly. Where services are remunerated on a time and materials basis, the provider documents the type and duration of the activities and submits this documentation together with the invoice.
1.2 As a matter of principle, all invoices are payable in full, without deduction, no later than 14 calendar days after receipt, free paying agent.
1.3 The customer may set off against defects or withhold payments only to the extent that it actually has payment claims arising from material defects or defects of title in the service. For other claims based on defects, the customer may withhold payments only to a proportionate extent in view of the defect. Clause 4.1 applies accordingly. The customer has no right of retention if its claim based on a defect is time-barred. In all other respects, the customer may only set off or exercise a right of retention with claims that are undisputed or have been established with final legal effect.
1.4 The provider retains title and the rights to be granted in the services until the remuneration owed has been paid in full; justified retentions on account of defects pursuant to clause 1.3 sentence 2 are taken into account. The provider further retains title until all of its claims arising from the business relationship with the customer have been satisfied.
For the duration of a payment default by the customer, the provider is entitled to prohibit the customer from making further use of the services. The provider may assert this right only for a reasonable period, as a rule for no more than 6 months. This does not constitute a withdrawal from the contract. Section 449 (2) of the German Civil Code (BGB) remains unaffected.
If the customer or its own purchaser returns the services, accepting the services does not constitute a withdrawal by the provider unless the provider has expressly declared such withdrawal. The same applies to the attachment of goods subject to retention of title, or of rights in such goods, by the provider.
The customer may neither pledge nor assign by way of security any items subject to retention of title or of rights. Only as a reseller is the customer permitted to resell in the ordinary course of business, on condition that the customer has effectively assigned to the provider its claims against its purchasers in connection with the resale and that the customer transfers title to its purchaser subject to payment. By concluding this contract, the customer assigns its future claims against its purchasers in connection with such sales to the provider by way of security, and the provider hereby accepts that assignment.
Insofar as the value of the provider’s security rights exceeds the amount of the secured claims by more than 20 %, the provider will release a corresponding portion of the security rights at the customer’s request.
1.5 Where rights of use in deliveries and services are permissibly transferred, the customer is obliged to impose on the recipient the restrictions agreed in the contract.
1.6 If the customer fails to settle a due claim in full or in part on the payment date agreed in the contract, the provider may revoke agreed payment terms for all claims. The provider is further entitled to render further services only against advance payment or against security in the form of a performance guarantee issued by a credit institution or credit insurer authorised within the European Union. The advance payment must cover the respective billing period or, in the case of one-off services, their remuneration.
1.7 If the customer is economically unable to meet its obligations towards the provider, the provider may terminate existing reciprocal contracts with the customer by withdrawal and continuing obligations by termination without notice, including where the customer files for insolvency. Section 321 BGB and section 112 of the German Insolvency Code (InsO) remain unaffected. The customer will inform the provider in writing at an early stage of any impending insolvency.
1.8 Fixed performance dates should be agreed exclusively and expressly in documented form. The agreement of a fixed performance date is subject to the proviso that the provider receives the services of its respective upstream suppliers on time and in accordance with the contract.
2. Cooperation, obligations to cooperate, confidentiality
2.1 The customer and the provider each appoint a responsible contact person. Unless agreed otherwise, communication between the customer and the provider takes place through these contact persons. The contact persons must bring about all decisions relating to the performance of the contract without undue delay. Decisions must be documented in a binding manner.
2.2 The customer is obliged to support the provider as far as necessary and to create, within its own sphere of operations, all conditions required for the proper execution of the order. In particular, it will make the necessary information available and, where possible, enable remote access to the customer’s system. Insofar as remote access is not possible for security or other reasons, the affected deadlines are extended appropriately; for further effects the contracting parties will agree an appropriate arrangement. The customer further ensures that qualified personnel is available to support the provider.
Insofar as the contract provides that services may be rendered on site at the customer’s premises, the customer will provide adequate workstations and work equipment free of charge at the provider’s request.
2.3 Unless agreed otherwise, the customer will ensure proper data backup and contingency planning for data and components (such as hardware and software) that is appropriate to their nature and importance.
2.4 The customer must report defects in writing without undue delay, in a comprehensible and detailed form, stating all information useful for identifying and analysing the defect. In particular, the customer must state the steps that led to the defect occurring, how it manifests itself and its effects. Unless agreed otherwise, the provider’s corresponding forms and procedures are to be used for this purpose.
2.5 The customer will, upon request, provide reasonable support to the provider in examining and asserting claims against other parties involved in connection with the provision of the services. This applies in particular to the provider’s recourse claims against upstream suppliers.
2.6 The contracting parties are obliged to maintain secrecy about trade secrets as well as about other information designated as confidential (for example in records, documents or data sets) that becomes known in connection with the performance of the contract, and neither to use such information beyond the purpose of the contract nor to disclose it without the written consent of the other contracting party.
The receiving contracting party is obliged to take appropriate confidentiality measures for trade secrets and for information designated as confidential. The contracting parties are not entitled to obtain trade secrets of the other contracting party by observing, examining, dismantling or testing the subject matter of the contract. The same applies to other information or items received during the performance of the contract.
Trade secrets and other information designated as confidential may only be passed on to persons who are not involved in the conclusion, performance or settlement of the contract with the written consent of the respective other contracting party.
Unless agreed otherwise, the obligation of confidentiality for other information designated as confidential ends five years after the respective information became known, but in the case of continuing obligations not before these have ended. Trade secrets must be kept secret without any time limit.
The contracting parties will also impose these obligations on their employees and on any third parties engaged.
2.7 The contracting parties are aware that electronic and unencrypted communication (for example by email) entails security risks. For this type of communication they will therefore not assert any claims based on the absence of encryption, except where encryption has been agreed beforehand.
3. Disruptions in the provision of services
3.1 If a cause for which the provider is not responsible, including a strike or lockout, affects compliance with a date (“disruption”), the dates are postponed by the duration of the disruption, including, where necessary, a reasonable restart period. Each contracting party must inform the other without undue delay of the cause of a disruption occurring in its sphere and of the duration of the postponement.
3.2 If the effort increases as a result of a disruption, the provider may also demand remuneration for the additional effort, unless the customer is not responsible for the disruption and its cause lies outside the customer’s area of responsibility.
3.3 If the customer is entitled to withdraw from the contract and/or to claim damages in lieu of performance because of services not rendered properly by the provider, or asserts such a right, the customer will, at the provider’s request, declare in writing within a reasonable period set for this purpose whether it asserts these rights or still wishes the services to be rendered. In the event of withdrawal, the customer must reimburse the provider for the value of the possibilities of use previously enjoyed; the same applies to deterioration resulting from intended use.
If the provider is in default with the provision of services, the customer’s claim for damages and reimbursement of expenses on account of the default is limited, for each completed week of default, to 0.5 % of the price for that part of the contractual service which cannot be used as a result of the default. Liability for default is limited to a total of no more than 5 % of the remuneration for all contractual services affected by the default; in the case of continuing obligations, based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the conclusion of the contract applies where such a percentage was agreed. This does not apply insofar as the default is based on gross negligence or intent on the part of the provider.
3.4 In the event of a delay in performance, the customer has a right of withdrawal within the statutory provisions only if the provider is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses in lieu of performance on account of the delay, it is entitled to demand, for each completed week of delay, 1 % of the price for that part of the contractual service which cannot be used as a result of the delay, but in total no more than 10 % of that price; in the case of continuing obligations, based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the conclusion of the contract applies where such a percentage was agreed.
4. Material defects and reimbursement of expenses
4.1 The provider warrants the contractually owed quality of the services. No claims based on material defects exist for a merely insignificant deviation of the provider’s services from the contractual quality.
Nor do claims based on defects exist in the case of excessive or improper use, natural wear and tear, or failure of components of the system environment. The same applies to software errors that are not reproducible or otherwise demonstrable by the customer. This also applies to damage caused by particular external influences that are not assumed under the contract. Claims based on defects likewise do not exist in the case of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and remedying of a material defect.
Clause 6 applies in addition to claims for damages and reimbursement of expenses.
4.2 The limitation period for claims based on material defects is one year from the statutory commencement of the limitation period. The statutory periods for recourse under section 478 BGB remain unaffected.
The same applies, insofar as the law prescribes longer periods pursuant to section 438 (1) no. 2 or section 634a (1) no. 2 BGB, in the case of an intentional or grossly negligent breach of duty by the provider, in the case of fraudulent concealment of a defect, in cases of injury to life, body or health, and for claims under the German Product Liability Act.
The provider’s handling of a customer’s notice of a material defect only suspends the limitation period insofar as the statutory requirements for this are met. It does not cause the limitation period to start anew.
Subsequent performance (replacement delivery or rectification) can only affect the limitation period of the defect that triggered the subsequent performance.
4.3 Recourse claims in contracts for digital products pursuant to section 327u BGB remain unaffected by clauses 4.1 and 4.2.
If a purchaser asserts a possible claim against the customer that may lead to a recourse claim, the customer will inform the provider without undue delay of the claim asserted and of the further information necessary and useful for assessing it. The customer will give the provider the opportunity to satisfy the claim asserted by the customer’s purchaser, except where this is unreasonable for the customer. The customer and the provider will coordinate and cooperate with the aim of satisfying a justified claim of the customer’s purchaser with as little effort and cost as possible.
4.4 The provider may demand remuneration for its effort insofar as
a) it takes action on the basis of a report without a defect being present, unless the customer could not have recognised with reasonable effort that no defect was present, or
b) a reported disruption is not reproducible or otherwise demonstrable by the customer as a defect, or
c) additional effort arises because the customer has not properly fulfilled its obligations (see also clauses 2.2, 2.3, 2.4 and 5.2).
5. Defects of title
5.1 The provider is liable for infringements of third-party rights by its service only insofar as the service is used in accordance with the contract and, in particular, unchanged in the operating environment agreed in the contract or otherwise intended.
The provider is liable for infringements of third-party rights only within the European Union and the European Economic Area and at the place where the service is used in accordance with the contract. Clause 4.1 sentence 1 applies accordingly.
5.2 If a third party asserts against the customer that a service of the provider infringes its rights, the customer notifies the provider without undue delay. The provider and, where applicable, its upstream suppliers are entitled, but not obliged, to defend against the asserted claims at their own cost insofar as this is permissible.
The customer is not entitled to acknowledge third-party claims before it has given the provider a reasonable opportunity to defend against the third-party rights by other means.
5.3 If a service of the provider infringes third-party rights, the provider will, at its own discretion and at its own cost,
a) obtain for the customer the right to use the service, or
b) modify the service so that it no longer infringes those rights, or
c) take the service back against reimbursement of the remuneration paid for it by the customer (less reasonable compensation for use), if the provider cannot achieve any other remedy with reasonable effort.
The customer’s interests are given appropriate consideration in this.
5.4 The customer’s claims based on defects of title become time-barred in accordance with clause 4.2. Clause 6 applies in addition to the customer’s claims for damages and reimbursement of expenses; clause 4.3 applies accordingly to additional effort on the part of the provider.
6. General liability of the provider
6.1 The provider is always liable to the customer
a) for damage caused intentionally or through gross negligence by the provider, its legal representatives or vicarious agents,
b) under the German Product Liability Act, and
c) for damage arising from injury to life, body or health for which the provider, its legal representatives or vicarious agents are responsible.
6.2 The provider is not liable in the case of slight negligence, except where it has breached a material contractual obligation whose fulfilment makes the proper performance of the contract possible in the first place, or whose breach jeopardises the achievement of the purpose of the contract, and on whose observance the customer may regularly rely. In the case of damage to property and financial loss, this liability is limited to the damage that is typical for this type of contract and foreseeable. This also applies to loss of profit and savings not realised. Liability for other remote consequential damage is excluded.
For an individual case of damage, liability is limited to the value of the contract, in the case of recurring remuneration to the amount of the remuneration per contract year, but not to less than € 50,000. Clause 4.2 applies accordingly to the limitation period. At the conclusion of the contract, the contracting parties may agree more extensive liability in writing, usually against separate remuneration. An individually agreed liability amount takes precedence. Liability under clause 6.1 remains unaffected by this paragraph.
In addition and with priority, the provider’s liability for slight negligence arising from the respective contract and its performance is limited overall, irrespective of the legal grounds, to damages and reimbursement of expenses up to the percentage of the remuneration agreed at the conclusion of the contract that is set out in that contract. Liability under clause 6.1 b) remains unaffected by this paragraph.
6.3 The provider is liable for damages on the basis of a guarantee declaration only if this was expressly assumed in the guarantee. In the case of slight negligence, this liability is subject to the limitations set out in clause 6.2.
6.4 Where data or components (such as hardware or software) have to be restored, the provider is liable only for the effort required for restoration in the case of proper data backup and contingency planning by the customer. In the case of slight negligence on the part of the provider, this liability only arises if the customer carried out data backup and contingency planning appropriate to the nature of the data and components before the incident. This does not apply insofar as this has been agreed as a service of the provider.
6.5 Clauses 6.1 to 6.4 apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against the provider. Clauses 3.3 and 3.4 remain unaffected.
7. Data protection
The customer will conclude with the provider the agreements required under data protection law for the handling of personal data.
8. Miscellaneous
8.1 The customer will observe the import and export regulations applicable to the deliveries or services on its own responsibility, in particular those of the USA. In the case of cross-border delivery or performance, the customer bears any customs duties, fees and other charges. The customer will handle statutory or official procedures in connection with cross-border deliveries or services on its own responsibility, unless expressly agreed otherwise.
8.2 German law applies. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
8.3 The provider renders its services on the basis of its General Terms and Conditions of Contract (AV). The customer’s general terms and conditions do not apply, even if the provider has not expressly objected to them.
The customer’s acceptance of the services is deemed to be acceptance of the provider’s AV and a waiver of the customer’s general terms and conditions.
Other terms are only binding if the provider has acknowledged them in writing; the provider’s general terms and conditions then apply in addition.
8.4 Amendments and additions to this contract should only be agreed in writing. Where written form has been agreed (for example for terminations or withdrawal), text form is not sufficient.
8.5 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 the provider. The provider may also sue the customer at the customer’s registered office.
Terms and conditions for the provision of services
Version 1.0
1. Subject matter of the contract
1.1 The provider renders the service in accordance with the conditions agreed in the contract and set out below, against the remuneration agreed in the contract. Responsibility for the project and for its success lies with the customer. The provider renders the service in accordance with the principles of proper professional practice.
1.2 The subject matter of the contract may consist of a one-off service, which may also be rendered in parts, or may be designed for an indefinite duration.
2. Performance of the service
2.1 Unless agreed otherwise, the place of performance is the registered office of the provider.
2.2 The provider renders the service through suitable employees. The customer has no claim to the service being rendered by particular employees of the provider.
2.3 Unless agreed otherwise, the provider determines the manner in which the service is rendered.
2.4 The customer has no authority to issue instructions to the provider’s employees involved in rendering the service.
2.5 Where the provider is required to present the results of the service in writing, only the written presentation is authoritative.
3. Obligations to cooperate
3.1 The customer ensures that the contact person it has appointed provides the provider with the documents, information and data necessary for rendering the service completely, correctly, in good time and free of charge, insofar as these are not owed by the provider. The customer also ensures that they are kept up to date. The provider may assume that these documents, information and data are complete and correct, except where it recognises or must recognise that they are incomplete or incorrect.
3.2 For this purpose, the customer must monitor the provision of the service by the provider.
4. Rights of use
4.1 In respect of the service results that the provider has produced under the contract and handed over to the customer, the provider grants the customer the non-exclusive and non-transferable right to use them on its own premises for its own internal purposes within the scope of use assumed in the contract, for an unlimited period, unless agreed otherwise.
4.2 In all other respects, all rights remain with the provider.
4.3 The provider may withdraw rights of use granted to the customer if the customer breaches restrictions on use or other provisions protecting against unauthorised use to a not insignificant extent. The provider must first set the customer a grace period to remedy the breach. In the event of repetition, and in the case of particular circumstances which, weighing the interests of both sides, justify immediate withdrawal, the provider may withdraw the rights without setting a grace period. The customer must confirm to the provider in writing that use has ceased after a withdrawal of the rights of use. The provider will grant the customer the rights of use again after the customer has explained and assured in writing that its use no longer infringes the provider’s rights in any way and that previous breaches and their consequences have been remedied.
5. Term
5.1 If the contract has been concluded for an indefinite period, it may be terminated with three months’ notice to the end of a calendar year. Such termination is possible for the first time at the end of the calendar year following the conclusion of the contract. An agreed minimum term remains unaffected by this right of termination. This applies in each case unless agreed otherwise.
5.2 The right to extraordinary termination for good cause remains unaffected.
5.3 Declarations of termination are only effective in writing.
5.4 Withdrawal from the contract is excluded.
6. Remuneration
6.1 Unless agreed otherwise, the provider may increase the remuneration at the earliest 12 months after the conclusion of the contract, provided the increased remuneration corresponds to the provider’s current list price. Further increases may take place at the earliest 12 months after a previous increase took effect. An increase becomes effective three months after it is announced.
The customer has a right of termination if the remuneration rates increase by more than five per cent. The customer may terminate within one month of receiving the announcement, with effect from the date on which such an increase takes effect.
6.2 Agreed records of effort are deemed approved unless the customer objects in detail and in writing within 21 days of receipt and the provider has pointed out this deemed approval in the record of effort.
6.3 Travel costs and expenses as well as other expenses of the provider are invoiced and reimbursed on the basis of the actual costs without surcharges, unless agreed otherwise.
Travel time counts as working time.
6.4 The provider may demand remuneration for its effort insofar as additional effort arises because the customer has not properly fulfilled its obligations (see clause 3).
7. Disruptions in performance
7.1 If the service is not rendered in accordance with the contract and the provider is responsible for this (disruption in performance), the provider is obliged to render the service, in whole or in part, in accordance with the contract within a reasonable period and without additional cost for the customer, unless this is only possible with disproportionate effort.
7.2 This obligation of the provider only exists if the customer gives notice of the disruption in performance in writing and without undue delay, at the latest within two weeks of becoming aware of it, unless agreed otherwise.
7.3 Clause 6 of the AV beyondbots applies to any claims for reimbursement of expenses and damages going beyond this.
8. Applicability of the AV beyondbots
The General Terms and Conditions of Contract of beyondbots GmbH (AV beyondbots) apply in addition.
beyondbots terms and conditions for the maintenance of standard software
Version 1.0
A Subject matter of the contract
A 1 Object of maintenance
The provider renders the agreed maintenance services only for the current version of the standard software agreed as the object of maintenance (“maintenance software”), against the agreed remuneration. If third-party software is expressly agreed in the contract as maintenance software, the restrictions described there apply to it.
The provider renders the following maintenance services, insofar as agreed:
A 2 Disruption management
2.1 Receipt of disruption reports
During its usual business hours, the provider will accept the customer’s disruption reports, assign an identifier to each of them, allocate them to the agreed disruption categories and, on the basis of that allocation, carry out the agreed measures for analysing and clearing disruptions. Clause 2.4 of the AV beyondbots applies accordingly to disruption reports. At the customer’s request, the provider confirms receipt of a disruption report and communicates the identifier assigned.
Disruption management does not include services connected with the use of maintenance software in operating environments that have not been approved, or with modifications of the maintenance software by the customer or third parties.
2.2 Allocation to disruption categories
Unless agreed otherwise, the provider will allocate disruption reports received, after an initial review, to one of the following categories:
a) Serious disruption — The disruption is based on an error in the maintenance software that makes use of the maintenance software impossible or permits it only with serious restrictions. The customer cannot reasonably work around this problem and is therefore unable to complete tasks that cannot be postponed.
b) Other disruption — The disruption is based on an error in the maintenance software that restricts the customer’s use of the maintenance software to more than an insignificant extent, without amounting to a serious disruption.
c) Other report — Disruption reports that do not fall into categories a) and b) are allocated to other reports. Other reports are handled by the provider only in accordance with the arrangements made for them.
2.3 Carrying out measures to remedy disruptions
In the case of reports of serious disruptions and other disruptions, the provider will, without undue delay and on the basis of the circumstances communicated by the customer, initiate appropriate measures in order first to locate the cause of the disruption. If, after an initial analysis, the reported disruption does not turn out to be an error in the maintenance software, the provider informs the customer of this without undue delay.
Otherwise, the provider will arrange appropriate measures for further analysis and for clearing the reported disruption or — in the case of third-party software — forward the disruption report together with its analysis results to the distributor or manufacturer of the maintenance software with a request for remedy.
The provider will make available to the customer, without undue delay, any measures available to it for working around or clearing an error in the maintenance software, for example instructions for action or corrections to the maintenance software. The customer will adopt such measures for working around or clearing disruptions without undue delay and will report to the provider, again without undue delay, any disruptions that remain after they have been applied.
A 3 Provision of new versions
3.1 Contractual services
The provider provides the customer with certain new releases of the maintenance software in order to keep it up to date and to prevent disruptions. These are updates to the maintenance software containing technical modifications, improvements and minor functional extensions, as well as patches containing corrections to the maintenance software or other measures for working around possible disruptions. These new releases of the maintenance software are referred to collectively as “new versions”.
The maintenance services do not include the provision of upgrades with substantial functional extensions or of new products, nor any obligation to develop the maintenance software further, unless expressly agreed otherwise.
3.2 Obligations and rights regarding new versions
The provider makes the new versions of the software available to the customer. The customer will examine new versions without undue delay and give notice of recognisable defects without undue delay; section 377 of the German Commercial Code (HGB) applies accordingly.
Disruptions and defects are handled in accordance with clause A 2. Clauses 2.4 and 4.1 of the AV beyondbots apply in addition. Where the provider has made a new version available to the customer, it also continues to maintain the previous version for a reasonable transitional period, which as a rule does not exceed three months.
If the customer is entitled to claims based on defects, it initially only has the right to subsequent performance within a reasonable period. At the provider’s discretion, subsequent performance consists either of rectification or of the delivery of replacement software. The customer’s interests are given appropriate consideration in this choice.
The customer will enable the provider to install and remove software as part of subsequent performance, except where this is unreasonable for the customer. Before taking its own measures to remedy a defect, the customer will consult the provider.
If the customer is entitled to reimbursement of expenses, this exists only to a reasonable extent, taking into account the value of the service concerned in a defect-free condition and the significance of the defect.
For new versions of third-party software, the warranty provisions of the transfer agreement between the customer and the provider for that third-party software take precedence, unless agreed otherwise. Section 475a BGB remains unaffected.
A 4 Point of contact (ticket system)
4.1 Contractual services
The provider sets up a point of contact for the customer (ticket system). This point of contact handles the customer’s enquiries relating to the technical requirements and conditions for using the maintenance software and to individual functional aspects. Clause A 2.1 applies.
The point of contact does not provide services connected with the use of maintenance software in operating environments that have not been approved, or with modifications of the maintenance software by the customer or third parties.
4.2 Acceptance and handling of enquiries
A prerequisite for accepting and handling enquiries is that the customer names to the provider personnel with appropriate professional and technical qualifications who are responsible internally at the customer for handling enquiries from users of the maintenance software. The customer is obliged to direct enquiries to the hotline only through this personnel named to the provider, using the forms provided by the provider. The point of contact accepts such enquiries via the ticket system during the provider’s usual business hours.
The point of contact will handle proper enquiries in the ordinary course of business and answer them where possible. In answering, the point of contact may refer to documentation and other training material for the maintenance software available to the customer. Insofar as an answer from the point of contact is not possible, or not possible promptly, the provider will — where this is expressly agreed — forward the enquiry for handling, in particular enquiries regarding maintenance software not produced by it.
More extensive services of the point of contact, such as other contact times and response periods as well as on-call duty or on-site assignments at the customer’s premises, must be expressly agreed in advance.
A 5 Additional services
Services going beyond clauses A 2 to A 4 are not owed under this contract; they require a separate agreement and are remunerated separately. This may concern, for example, additionally agreed on-site assignments at the customer’s premises, advice and support in the case of modified software, clarification of interfaces to third-party systems, and support with installation and configuration.
B General provisions
The following provisions apply equally to disruption management (A 2), the provision of new versions (A 3) and the hotline (A 4).
B 1 Term
1.1 Unless agreed otherwise, the maintenance contract begins with delivery under the transfer agreement for the standard software.
1.2 After any agreed minimum term has expired, the maintenance contract may be terminated in writing with two months’ notice to the end of a calendar year, but for the first time with effect from the end of the calendar year following the conclusion of the contract. In addition, the contract may be terminated by the provider and the customer without notice for good cause.
1.3 Declarations of termination are only effective in writing.
B 2 Remuneration
2.1 Flat-rate remuneration
The customer remunerates the maintenance services by way of a recurring flat rate. The maintenance remuneration is owed in advance for the billing period and is invoiced by the provider to the customer at the beginning of the billing period. As a rule, the billing period is the calendar year.
If the contract begins within a billing period, the remuneration is owed pro rata temporis and invoiced upon conclusion of the contract.
2.2 Remuneration of additional services
Additional services that are not covered by the flat-rate remuneration are remunerated in accordance with clause 1.1 of the AV beyondbots.
2.3 Adjustment of the remuneration
The provider reserves the right to increase the remuneration for the first time after 12 months and no more than once a year, with three months’ notice, in line with the development of the German “Index of labour costs in the production sector and the service sector”. The provider may pass on cost increases for third-party inputs going beyond this, except insofar as it has caused them. As soon as the annual remuneration increases by more than 5 %, the customer is entitled to terminate the contract extraordinarily with six weeks’ notice from receipt of the increase request, with effect from the date on which the increase takes effect. If the corresponding costs are reduced, the customer may likewise demand a corresponding reduction of the remuneration, for the first time after 12 months.
B 3 Right of use
The customer’s rights of use in new versions and other corrections to the maintenance software correspond to the rights of use in the previous version of the maintenance software. With regard to the rights of use, the rights in the new versions and other corrections replace the rights in the previous versions and other corrections after a reasonable transitional period, which as a rule does not exceed one month. The customer may archive one copy.
B 4 Obligations of the customer
4.1 The customer will inform the provider without undue delay of changes to the operating environment, also in order to enable the provider to render the maintenance service. The customer further ensures that the maintenance software is only used in an approved operating environment supported by the maintenance software. The provider owes no maintenance for software that is not used in such an operating environment.
4.2 Unless agreed otherwise, the customer will additionally store all documents, information and data handed over to the provider in such a way that they can be reconstructed if data media are damaged or lost.
B 5 Handover
Insofar as software is handed over under these terms and nothing else has been agreed, this takes place in the same way as the transfer of the maintenance software.
B 6 Data protection
6.1 Insofar as the provider can access personal data of the customer or from the customer’s sphere, it acts exclusively as a processor and will process and use such data only for the performance of the contract. The provider will observe the customer’s instructions for handling such data. The customer bears any adverse consequences of such instructions for the performance of the contract. The customer will agree with the provider the details of the provider’s handling of the customer’s data in accordance with data protection requirements.
6.2 The customer remains the controller, both generally in the commissioned relationship and within the meaning of data protection law. As between the provider and the customer the following applies: vis-à-vis the data subject, responsibility for the processing (including collection and use) of personal data lies with the customer, except insofar as the provider is responsible for any claims of the data subject arising from a breach of duty attributable to it. The customer will examine, handle and answer any enquiries, applications and claims of the data subject on its own responsibility. This also applies where the data subject asserts claims against the provider. The provider will support the customer within the scope of its obligations.
6.3 The provider warrants that the customer’s data is processed exclusively within the territory of the Federal Republic of Germany, in a member state of the European Union or in another state party to the Agreement on the European Economic Area, unless agreed otherwise.
B 7 Applicability of the AV beyondbots
The General Terms and Conditions of Contract of beyondbots GmbH (AV beyondbots) apply in addition.