auticon GmbH/Ltd. – Terms & Conditions
The present terms and conditions regulate the contractual relationship between the contractor, auticon and its clients with regard to auticon’s service provision. These terms and conditions apply to individual as well as framework contracts. They are made available on the contractor’s website under http://auticon.com/terms-conditions/ and come into effect upon the signing of a contract in the version that was online at the time of contract conclusion. Should contracts become renewed, extended or should orders be placed within framework contracts, the respectively current version of the contractor’s terms and conditions applies.
The content of the contractual relationship between the contractor and its client is based upon either a framework contract, the contractor’s proposal, a signed individual contract, and/or the contractor’s relevant remuneration structure. The implementation of services will be individually coordinated with each respective client. The hours of work will be documented.
Contracts are principally service contracts (Dienstverträge), based on the provision of services rather than specific output. auticon is not liable for the creation of specific output. Contracts may in some cases be contracts for work (Werkverträge) and imply the creation of a specific piece of work, if this is explicitly stated in the writing of the individual contractual regulation. In such case, the provision of labour is to be defined in writing in that individual contract. Whenever in doubt, contracts are considered service contracts. The contractual relationship between the service provider and its clients does not imply a transfer of the employee. As long as the contractor delivers services to the client, the contractor is in authority to instruct and guide its employees. Clients may only direct requests at the contractor’s project manager. The contractor’s services are not tied to individual consultants. The contractor reserves the right to replace a consultant with another given the replacement candidate also has the required expertise. This also applies to projects where one specific consultant has been put forward.
3. Formation and termination of contracts:
Contracts outlining particular services the contractor is to deliver are formed via a written proposal that is accepted by the client.
The contractor generally commits to that proposal for three weeks after its submission date, unless otherwise stated. Contract assignments may only be terminated in writing. A contract based on a verbal agreement is only considered valid if the service provider does subsequently deliver services. A verbal assignment is also possible if it merely implies the extension of an already existing written contract, or additional service assignments within the framework of an existing written contract.
Service contracts are valid for the time specified in the contract. Both parties are tied to the contractually specified timeframe. Duly termination of the contract is possible at any point by giving an at least two weeks’ notice period at the end of the month. In case of external circumstances requiring a contract termination without notice, the relevant German legislation applies.
Valid reasons for the service provider to terminate a contract without notice and beyond legal regulations include a payment delay on the part of the client to the amount of a monthly payment or more with at least one calendar week delay and/or the client’s refusal to contribute towards the project as outlined in the following section despite having been given a warning by the contractor. Acceptable reasons for the client to terminate a contract without notice include an insufficient service provision on the part of the contractor over a period of 2 weeks or more despite the client having given a warning, or a violation of confidentiality regulations despite the client having given a warning.
In any case, the termination of a contract has to occur in writing.
4. Client contribution:
Clients do contribute to the service provision. Clients provide the contractor with the information relevant to ensure the success of the project collaboration in time. Clients provide necessary systems, software and access rights in consultation with the contractor. As long as services are provided on the client’s site, the client is to create appropriate working conditions in time, free of charge and without prompting. As a general rule this includes the provision of a working space, hardware, hardware time, access to hard- or software and similar. Any particular aspects of the workplace conditions are to be discussed in advance.
Clients are to support the contractor to the required amount, particularly within the contractually agreed upon scope of service provision or on the contractor’s individual request.
In order to ensure a continuous service provision, the client is to allocate qualified personnel for the clarification of technical and administrative matters free of charge.
The contractor’s remuneration duly depends on the hours worked within the framework of the given hourly or daily rates. The client is obliged to countersign time sheets in regular fortnightly intervals. The client thereby confirms that the respective work has been carried out in the stated amount of hours. Exceptions based on individual agreements are possible in writing. Fees are contractually specified in the form of hourly or daily rates. In case of no contractually specified fees, the contractor’s generic price list valid at the time of contract conclusion applies. In addition to the general remuneration, any added expenses (e.g. travel and living expenses) prompted by the client or essential for the project progress are to be compensated by the client. Payment due dates are based on individual contractual regulations between both contract parties. If not further specified, fees as well as expenses are to be paid monthly and according to the progress of the service provision.
Payments are due in full 14 days following invoicing at the latest. Hereby the overall invoice determines the total billing. Should the service provider’s price list come into effect, the version valid at point of contract conclusion applies.
Is the contractual relationship based on a framework contract, the actual date of commissioning the project applies. Is the contract an extension of an existing contract, the start date of the extension applies. Payment claims become time barred in their entity beyond the statutory limitation period based on the date of the final invoice.
In case of a payment delay, interest amounting to 8% will be charged in addition to the basic rate. Any invoiced remuneration and additional costs are net prices. Moreover, the contractor claims compensation of sales tax to the extent that legally applies at the time of service provision.
The contractor charges additional fees should the client or the project conditions require working outside regular office hours. These amount to an additional 30% of the base rate Monday to Friday between 8pm and 6am and an additional 50% of the base rate on Saturdays, Sundays and national bank holidays.
The project contract outlines specific deadlines. Unless otherwise specified, these apply as non-binding performance targets and cannot be used to raise contractual claims. Should the client request specific binding deadlines, these must be recognisable as such in the contract. Compliance with these deadlines implies the client’s obligation to adhere to the contractor’s remuneration and contribution requests. Should the client not adhere to these or not do so in time, deadlines will be delayed by the time of contribution or payment delay. In the case of external circumstances beyond the client’s or contractor’s control, deadlines may be postponed accordingly. External circumstances beyond control may include industrial action, lockout, war, or death or chronic illness of the contractor’s employee that is assigned to the project.
7. Project handover:
A handover of services provided is generally not necessary. Should the client request a formal handover or should both parties have agreed on one in advance, an individual handover of the service provided is to be declared. The handover may only be rejected due to grave shortcomings. The handover may not be rejected due to minor shortcomings. Minor shortcomings are those that do not interfere with or limit the intended economic utilisation of the provided services to an unacceptable extent. Does the client take over the project despite obvious shortcomings, he thereby accepts the delivered services as contractually compliant. The handover is considered accepted and concluded when the client utilises the services delivered by the contractor without reprimanding for longer than two weeks following service provision. The handover is also considered concluded if the client does not respond to the contractor’s handover request for over two weeks’ time or if the client settles the final invoice without reservations and has been previously notified of its consequences.
8. Mutual confidentiality commitment/protection against competition:
The contractor and his employees are obliged to maintain confidentiality. The contractor as well as the client commit to a mutual confidentiality agreement, implying that all knowledge of confidential documents, information and trade secrets of the other party accessed within the project collaboration must not be disclosed. This particularly applies to any software provided by the client. The contractor is obliged to keep any handed over objects or information safely and prevent access from third parties. The contractor informs his employees of their obligation not to share any confidential information with third parties. The client may in given situations alert the contractor to any particular non-disclosure or data protection practices.
Both parties agree not to solicit employees of the other party without the consent of their employer. Should a current employee of either party proactively apply for a position at the other party, this has to be communicated to and approved by their current employer.
9. Liability/time barring:
The contractor ensures a careful service provision as per contractual agreement and within the framework of the client’s conditions. The service provider is liable before the client according to the applicable legislation. In the case of shortcomings in the service provision, the client has to communicate these to the contractor in writing along with all information pertinent to resolve the deficiencies.
The contractor is neither liable for deficiencies/the usability of the service provision being limited caused by improper use and/or intervention of the client, nor for shortcomings that have been partially or fully caused by the client’s system environment.
Likewise, the contractor is not liable if the client has altered the software unless the client can credibly verify that those changes did not have any impact on the development of the deficiency. Should the alteration of the software entail additional cost or labour time for the contractor, the client is to cover any additional expenditures.
The client is obliged to grant the contractor the option to amend any deficient project output. The client is to support the service provider in doing so as far as necessary based on his obligation to participate outlined in section 4.
The contractor will resolve any deficiencies within an appropriate time frame given the client has duly reprimanded these. A complete or partial handover will be scheduled if requested.
auticon is liable for any damages caused intentionally or by gross negligence. auticon is also liable for any fraudulent concealment of deficiencies, for the takeover of quality guarantees, claims based on the product liability legislation, as well as any damages to physique, body or health.
In the case of basic negligence the contractor is liable only for the violation of a cardinal obligation or another obligation substantial enough to endanger a successful conclusion of the project. In such case the contractor is only liable for any damage that was typical and foreseeable. This liability is limited to the outstanding remuneration.
The client is obliged to secure any provided data in advance. auticon is only liable for the recovery of data if the client has ensured regular backups with a view to pertinent risks. The client must also have ensured that the data of those backups may be reconstructed within reasonable efforts. A liability for the loss of data beyond the aforementioned scope is ruled out. Claims for compensation become time barred after a limitation period of 2 years unless a shorter period has been agreed upon and as long as claims are not based on detriment to life, body, health or freedom and are not arising from wilful misconduct.
10. Final regulations:
Changes and additions to the contract can only be requested in writing. This also applies to the regulation that any such requests have to be in writing. Individual contract clauses becoming invalid has no effect on other clauses that remain valid. Invalid regulations are to be replaced with appropriate clauses that come nearest to the originally desired economic effect of the regulation. The contractor’s terms and conditions apply exclusively. The client’s terms and conditions are rejected. The validity of the client’s existing terms and conditions is ruled out even if this is not specifically stated in the contract.
Berlin is the place of jurisdiction for any disputes resulting out of the contractual relationship. The legislation of the Federal Republic of Germany applies exclusively, ruling out any other legislations.
Berlin, August 2014