Angaben gemäß § 5 TMG:
BPO Consult GmbH
Niedersachsenweg 31
27299 Langwedel
Geschäftsführer: Sönke Wahlers
KONTAKT:
Telefon: +49 04232 380 200 0
E-Mail: Info@BPO-Consult.de
Eintragung im Handelsregister
Registergericht: Amtsgericht Walsrode
Registernummer: HRB 206641
Umsatzsteuer-ID: : DE312007956
homepage
General terms and conditions of BPO Consult GmbH for the provision, implementation and support of standard software and hardware
(Note: All personal names in this document apply to all genders.)
Content:
A) Provision of standard software (software license)
B) Software maintenance contracts
C) Hardware sales contracts
D) Hardware maintenance contracts
E) Contracts for general IT services
F) Common conditions for all the above types of contracts
--------------
A) Provision of standard software (software license)
1. Subject of the contract/right of use
1.1.
If the customer purchases standard software programs (hereinafter software or program) from BPO Consult GmbH (hereinafter referred to as BPO) on the basis of a sales contract, the terms of use and licensing of the respective software manufacturer or supplier (provider) apply exclusively, which BPO submits to the customer upon conclusion of the contract and attaches to the respective delivery. In this respect, the user contract is only concluded with the respective provider.
1.2.
If it is software developed by BPO or BPO is a supplier of the software licensor, the customer receives the simple, time-unlimited, limited in content and space and transferable right to use the software, including the associated documentation, subject to the following conditions.
1.3.
If the parties have agreed on a test period, the right of use referred to in Section A. 1.2 is limited to 3 months due to software protection mechanisms. After expiry of the test period and payment of the agreed remuneration, the customer receives a perpetual right of use.
1.4.
The features of the software are listed in the respective sales contract or in the attached program description. The price and payment terms for the software are also set out in the respective purchase contract. In addition, the BPO price lists valid at the time the contract is concluded apply, plus any additional costs such as customs, packaging, delivery and transport costs.
1.5.
Use within the meaning of these general terms and conditions is any permanent or temporary reproduction (copying) in whole or in part by loading, displaying, expiring, transmitting or saving the software for the purpose of executing and processing the data contained therein.
1.6.
If the use of BPO software requires licenses from other software manufacturers, for example operating systems, databases or access rights to third-party systems, the customer must ensure appropriate procurement and arrange for licensing. BPO assumes no costs or liability for this.
2. Reproduction rights and access protection
2.1.
The customer may reproduce the delivered software insofar as the reproduction is necessary to use the program. The necessary duplications include in particular installing the program from the original data carrier onto the mass storage device of the hardware used and loading it into the main memory.
2.2.
In addition, the customer may make a reproduction for backup purposes. However, in principle, only a single backup copy may be made and stored. This backup copy must be marked as that of the provided program.
2.3.
If, for reasons of data security or to ensure rapid reactivation of the computer system following a total failure, it is essential to regularly back up the entire database, including the software used, the customer may make backup copies in the absolutely necessary number. The data carriers concerned must be marked accordingly. The backup copies may only be used for archiving purposes only.
2.4.
The customer may not make any further copies, including the output of the program code to a printer and the photocopying of the entire manual or significant parts of it. Any additional manuals required by employees can be obtained from BPO. In the event that the source code has been provided to the customer, the customer is prohibited from making it available to third parties in any form, unless BPO gives its prior written consent.
3. Limiting the scope of use/network deployment
3.1.
The customer may use the software on any hardware owned exclusively by the customer. If the customer changes hardware, he must delete the programs from the previously used hardware. If the software is operated in an external data center, the customer will impose a corresponding obligation on the operator of the data center.
3.2.
The customer is entitled to use the software within a closed company network. Expanding use outside this network and/or by third parties requires a separate agreement with BPO.
3.3.
In client operation on an SAP system reported to SAP Deutschland AG & Co. KG or an SAP subsidiary or group company (identified by an SAP installation number = client), the customer is entitled to use the software in a local network operation at an installation location. An extension of use, e.g. to several clients, requires a separate agreement with BPO.
3.4.
Simultaneous storage, storage or use on more than one hardware or network system within the meaning of the preceding paragraphs is prohibited.
3.5.
BPO is entitled to check the proper use of the contract software, in particular as to whether the customer is using the programs qualitatively and quantitatively within the framework of the licenses purchased by him/her. The customer will provide BPO with information about this, i.e. carry out the audit himself. If necessary, the customer will also provide BPO with further access to relevant documents and documents and enable the review of the hardware and software environment used by the BPO or an auditing firm jointly selected by both parties. If the check shows that the number of licenses purchased has been exceeded by more than 3% or any other use that is not in accordance with the contract, the customer bears the costs of the verification, otherwise the costs are borne by BPO. With regard to an excess or fall short of the contractually agreed use of the contract software as a result of the audit, the parties will agree on a contractual adjustment valid for the future following the audit.
4. Decompilation and program change
4.1.
It is prohibited to edit or change the source code without the prior written consent of BPO. The back-translation of the provided program code into other forms of code (decompilation) and other types of development of the various stages of production of the software (reverse engineering), including any other program change, are prohibited.
4.2.
The customer is entitled to connect the software with other intended computer programs (in particular SAP systems) using the interfaces provided for this purpose.
4.3.
The removal of copy protection or similar protection mechanisms (in particular technical license limits) is prohibited. Only if this protection mechanism interferes with or prevents uninterrupted use of the program and BPO has not carried out this within a reasonable period of time despite a corresponding request to correct the fault, the customer may remove the copy protection or protection mechanism. The customer bears the burden of proof that the protective mechanism interferes with or prevents uninterrupted usability.
4.4.
Copyright notices, serial numbers and other features used to identify the program must not be removed or changed under any circumstances. The same applies to suppressing the display of corresponding features on the screen.
5. Transfer and sublease
5.1.
The customer may transfer the software, including the user manual and other accompanying material, to third parties on a permanent basis, provided that the acquiring third party agrees to continue to apply the agreed terms of use, in particular the present general terms and conditions, both to him and to BPO. In the event of transfer, the customer must hand over all software copies to the new user, including any existing backup copies, or destroy the copies not provided. As a result of the transfer, the old customer's right to use the software expires.
5.2.
The customer may provide the software, including the user manual and other accompanying material, to third parties on a temporary basis, unless this is done by renting for commercial purposes or leasing. Section A. 5.1 applies accordingly.
5.3.
The customer may not transfer the software to third parties if there is reasonable suspicion that the third party will violate the terms and conditions, in particular make unauthorized copies. This also applies to customer employees.
5.4.
The right to transfer the software within the meaning of Section A. 5.1 and A. 5.2 is granted subject to the proviso that BPO does not incur any follow-up costs of any kind (e.g. due to system-specific adjustments). Furthermore, BPO is not liable for circumstances arising from the acquirer's existence of a different system environment (i.e. not agreed between customer and BPO).
6. Duty of care
The customer will store the original data carriers delivered in a location secure against unauthorised access by third parties and will insist on compliance with these terms and conditions and copyright regulations.
7. Information requirements
7.1.
If a program is provided to third parties, the customer is obliged to provide BPO with the name and full address of the third party in writing.
7.2.
If the programs provided are special software adapted to the customer's hardware, operating systems, databases or other applications, the customer is also obliged to notify BPO in writing of a change in the contractual system platform.
7.3.
Regardless of the value of the software provided, the customer is obliged to notify BPO in writing of the removal of copy protection or a similar protection mechanism from the program code. The customer must describe the disruption in program usage necessary for such a permitted program change as precisely as possible. The description requirement includes a detailed description of the fault symptoms that have occurred, the presumed cause of the fault and, in particular, a detailed description of the program changes made.
8. Guarantee
8.1.
The parties agree that it is not possible to develop software in such a way that it is error-free for all conditions of use. BPO provides an up-to-date program description for each software it offers, which specifies the intended use and operating conditions of the program.
8.2.
For each software version provided, BPO guarantees the suitability for use in accordance with the contractually agreed features. In the event of significant deviations in the performance characteristics, BPO is entitled to make improvements and, provided that this does not involve unreasonable effort, is also obliged. If BPO is unable within a reasonable period of time to correct the deviations from the contractual performance characteristics or to circumvent them in such a way that the customer is able to use the program in accordance with the contract, the customer may demand a reduction in the agreed remuneration. The obligation to repair the software expires 12 months after delivery of the software or 12 months after the end of an agreed test period.
8.3.
The warranty does not cover defects caused by operating conditions deviating from the operating conditions provided for the program and specified in the service description.
9. Further conditions
In addition, the common conditions set out in Section F apply.
B) Software maintenance contracts
1. Subject matter of the contract
1.1.
The subject of software maintenance contracts is the maintenance of standard software (hereinafter software or program) delivered via BPO in accordance with the conditions set out in the respective contract (hereinafter software maintenance contract) to maintain the operational readiness of the software by the customer without excluding any interruption of operational readiness.
1.2.
Maintenance does not include deployment advice and no special change service to specifically adapt the software to the needs of the customer.
1.3.
The prerequisite for maintenance services is that the license conditions/terms of use of software not originating or delivered by BPO to which the customer is subject do not contain any restrictions on the provision of this maintenance service, in particular processing rights by third parties. In the event of violations, the customer indemnifies BPO from claims by third parties.
2. Maintenance services, response and service times
2.1.
If maintenance services are to be provided by BPO as part of a software maintenance contract, this includes the following services:
2.1.1.
The provision of the latest or approved program version (through service releases; updates) for the software specified in the software maintenance contract. The transfer does not include the installation or setup of the software. Unless it can be carried out by the customer himself, this must be contracted separately from BPO.
2.1.2.
The update of software documentation.
2.1.3.
The elimination of defects both within the program code and within the documentation.
2.1.4.
Both written and telephone advice to the customer in case of problems with regard to any significant faults.
2.1.5.
The telephone consultation service (hotline) is available to customers on weekdays except Saturday between 9:00 a.m. and 5:00 p.m.
2.1.6.
Fault reports are processed within the framework of the following response times and categories of malfunctions:
Category 1
Malfunctions that do not enable or completely prevent operation. In this case, BPO reacts as quickly as possible, but in any case within 4 hours.
Category 2
Malfunctions that significantly impair operation (basic functions are not functional). In this case, BPO reacts as quickly as possible, but in any case within 10 hours.
Category 3
Malfunctions that only minimally or do not affect operation at all. In this case, BPO reacts as quickly as possible, but in any case within 20 hours.
The response time is defined as the time that elapses between a qualified error message in accordance with Section B. 5.2 and the start of qualified processing of the fault by BPO. The above hours are only calculated within the above-mentioned availability of the hotline (weekdays except Saturday between 9:00 and 17:00). In addition, BPO also offers the option to report a fault for 24 hours via the e-mail address "support@bpo-consult.de”. However, the fault report via the e-mail address will only be processed during the above-mentioned availability times of the telephone hotline, i.e. between 9:00 and 17:00 on weekdays except Saturday; the response times only run within these availability times.
2.2.
BPO's contracted care services do not include the following:
2.2.1.
Care services outside the above-mentioned on-call times and on-site care services.
2.2.2.
Maintenance services that are required by using the software on another hardware system or under another operating system.
2.2.3.
Maintenance services following an unauthorised intervention by the customer in the software program codes.
2.2.4.
Maintenance services relating to the cooperation of the contractual software with other computer programs that are not the subject of the software maintenance contract.
2.2.5.
Support and advice in the business process environment.
3. Compensation
3.1.
The remuneration for maintaining the software is based on the respective software maintenance contract and is invoiced in advance for one calendar year in each case. The invoice amount is due for payment in advance no later than the first working day of each calculation period. The pro rata remuneration for a care period that is before the start of the first full calculation period is billed pro rata until the end of the year and is due for payment 14 days after invoicing.
3.2.
After expiry of the initial contract period, the remuneration for software maintenance is automatically adjusted at the beginning of each calendar year, in accordance with the maintenance increase announced up to three months before the end of the year.
4. Termination
Unless otherwise agreed in an individual contract, a software maintenance contract is concluded for an indefinite period of time and can be terminated in writing with a notice period of 4 months to the end of the calendar year.
5. Customer's obligations to cooperate
5.1.
The customer is obliged to upload service releases and updates delivered by BPO to his system immediately after delivery by competent employees trained for the product, in order to produce and maintain the latest version of the software.
5.2.
The customer must specify (qualify) his error messages and/or questions to the best of his ability. To do this, he must rely on competent employees trained for the respective product. In particular, a qualified report includes a detailed statement/description of the malfunction. This in turn includes detailed information on the software product, module and release used, a qualitative error description, the urgency and effects of a malfunction, and information about any changes in the system environment. At BPO's request, the customer is also obliged to provide BPO with all necessary data, log files, logs and other information needed to process the case.
5.3.
In order to report, describe, limit and identify faults in the most efficient way, BPO primarily recommends using the e-mail address "support@bpo-consult.de”.
5.4.
During required test runs, the customer is present in person or provides competent employees trained for the product who are authorized to judge and decide on deficiencies, functional enhancements, functional reductions and changes to the program structure. If necessary, other work with the computer system must be stopped during maintenance work.
5.5.
On request, the customer allows BPO to access its systems and programs via remote data transfer (remote access). The customer provides the connection required for this on the part of the customer at his own expense in consultation with BPO.
5.6.
The customer ensures that competent employees trained in operating the system and software are available during the contract period. The customer ensures that BPO has unhindered access to the systems and software. The customer will provide all necessary technical equipment, including energy supply, telephone connections and transmission lines, at his expense, and keep them operational at his expense for the duration of the services.
5.7.
BPO is released from its obligation to maintain the software as long as the customer fails to comply with the above obligations to cooperate.
5.8.
BPO is entitled to use subcontractors to fulfill its obligations under software maintenance contracts.
6. Guarantee
6.1.
BPO ensures that maintenance services comply with the agreed services in accordance with the software maintenance contract. Any mismatch between the software maintenance results must be documented by the customer in a specific description of the defect in accordance with Section B. 5.2. If BPO is unable to eliminate significant deviations from the agreed service within a reasonable period of time, the customer must set BPO a reasonable period of grace. If BPO also fails to eliminate the deviations from the contractual performance characteristics through improvements within the grace period or to circumvent them in such a way that the customer is able to use the program in accordance with the contract, the customer can terminate the software maintenance contract without notice. The above applies mutatis mutandis in the event that there is a proven error in software delivered by BPO.
6.2.
The warranty expires 12 months after acceptance of the performance results or, in the absence of formal acceptance, 12 months after the relevant service result has been put into operation or 12 months after termination of the contract. It does not cover errors or other defects that are based on a deviation from the contractually agreed operating conditions. The warranty is void if the customer changes the care results himself or has third parties change them.
7. Further conditions
In addition, the common conditions set out in Section F apply.
C) Hardware sales contracts
1. Subject matter of the contract
1.1
The subject matter of hardware purchase agreements is the purchase of computer hardware including the associated documentation (hereinafter “hardware”), consisting of the devices, elements and additional equipment listed in the respective purchase contract, including the properties, features and other terms and conditions specified there, and any delivery date.
1.2
The customer is responsible for the selection of hardware (including the performance results to be achieved through its use). BPO expressly does not guarantee success in this respect.
2. Prices and methods of payment
The price and payment terms for the hardware are set out in the respective purchase contract. In addition, the BPO price lists valid at the time the contract is concluded apply, plus any additional costs such as customs, packaging, delivery and transport costs.
3. Delivery, inspection and complaint obligation
3.1.
The exact delivery terms and dates are based on the respective purchase contract.
3.2.
The customer will examine all delivered hardware, including manuals and other documentation, within 8 working days of delivery, in particular with regard to the completeness of data carriers and manuals and the functionality of basic program functions. Defects that are identified or can be identified must be reported to BPO in writing within a further 8 working days using detailed defect documentation. The complaint must include a detailed description of the defects to the best of our ability.
3.3.
Defects that cannot be identified as part of the proper investigation described must be reported within 8 working days of discovery and compliance with the complaint requirements set out in the previous paragraph.
3.4.
In the event of a breach of the inspection and notification obligation, the hardware is considered approved in view of the relevant defect.
3.5.
At the customer's request, BPO is prepared to professionally dispose of old hardware or packaging material for the products it delivers. Details are based on the respective purchase contract and legal requirements.
4. BPO Consult GmbH's right of withdrawal
4.1.
BPO has the right to withdraw from a contract if the subject matter of the performance obligation is hardware or performance results from other companies (upstream suppliers), which BPO itself must purchase there, and the sub-supplier refuses to provide services only after conclusion of the contract or makes it dependent on significantly changed or new requirements or consideration that BPO could not expect when concluding the respective contract with the customer. In these cases, BPO must immediately declare the withdrawal and immediately refund any consideration paid by the customer.
4.2.
In addition, under the conditions of Sections 323 et seq. of the German Civil Code, BPO may withdraw from a purchase contract and reclaim provided products, in particular if the seller remains in default of more than 10% of the purchase price even after a period set after the due date has elapsed.
5. Installation of hardware
5.1.
If and insofar as BPO has contractually agreed to install the hardware, any installation location must be specified by the customer in the purchase contract. The customer must specify the installation and connection requirements in more detail in a documentation to be provided before the contract is concluded.
5.2.
Up to the agreed delivery dates, the customer creates the spatial, technical and other installation and connection requirements that enable BPO to make the hardware operational.
5.3.
The customer will inform and advise BPO in good time about any subsequent changes or additions. In principle, BPO is not responsible for connecting the delivered hardware to other devices or programs as part of the installation and bringing it into operation. After completion of the installation work, BPO will immediately inform the customer that it is ready for operation.
6. Operating system software
If operating systems are also part of the purchase contract with the delivery of the hardware, these are only intended for the operation of the hardware in accordance with the contract. The rules on software transfer in accordance with Section A. 1.2 of these general terms and conditions do not apply in this respect. BPO only provides the customer with the rights that the operating system manufacturer and/or supplier grants with the delivery of the hardware. In this respect, the required user contract is concluded exclusively with the respective operating system manufacturer and/or hardware supplier. In any case, further use requires the consent of the manufacturer and/or supplier of the respective operating system.
7. Warranty for defects
7.1.
BPO guarantees that the hardware is of the quality described in the purchase contract. Insofar as the nature of the hardware has not been agreed in detail, BPO guarantees that it is suitable for the use required under the contract or, if a specific use is required under the contract, for normal use and has a quality that is usual for hardware of the same type and can be expected by the customer; an insignificant reduction in value or suitability remains disregarded. BPO does not provide any further guarantees.
7.2.
The warranty period for new hardware is 12 months and starts on the date of delivery of the hardware. Used hardware is always sold without warranty. BPO provides a 6-month warranty for tested and reworked second-hand goods.
7.3.
The customer must report any defects occurring during the warranty period to BPO in all recognizable details, as far as possible, in particular in reproducible form. In doing so, the customer follows BPO's instructions for problem analysis and troubleshooting as far as is reasonable.
7.4.
BPO will start work to rectify the defect within a reasonable period of time. Defects that are duly reported before the warranty period expires will be remedied by BPO at its own expense. If BPO is not responsible for a reported defect, BPO may demand reimbursement of its expenses after time in accordance with the currently valid price list. However, if the customer has moved purchased products to a location other than his place of business after delivery, he must bear the additional expenses resulting from subsequent performance if the delivery of the products does not correspond to their intended use.
7.5.
The warranty does not include the elimination of faults caused by normal wear, external influences or operating errors. It does not apply if the customer himself changes devices, elements or additional equipment without the consent of BPO or has them changed by third parties, unless the customer proves that the remaining defects were not caused in whole or in part by such changes and that the rectification of the defect is not made difficult by the changes. If the reported defect proves to be the result of a handling, operating or input error, caused by use in breach of contract with an unapproved operating system or in combination with other non-BPO programs, or if control measures have not been followed, BPO is exempt from warranty. This applies mutatis mutandis to cases in which BPO's repair work has been hampered, impeded or expanded more than insignificantly due to the circumstances listed above.
7.6.
As part of its warranty obligation, BPO may repair or replace faulty devices, elements, additional equipment or parts. To the extent necessary for this, the customer will remove programs (including its application programs), data, data carriers, changes and attachments before the exchange. The customer gives BPO the necessary time and opportunity to carry out the post-processing work. A claim for subsequent performance is excluded if a repair for BPO would involve a disproportionate effort. Parts replaced as part of subsequent performance become the property of BPO, provided that the retention of title to the hardware itself is still effective.
7.7.
As far as this is possible and appropriate with regard to the effects of the defect, BPO will provide an interim solution to circumvent the defect until the defect is finally remedied; the interim solution may also consist of providing a comparable backup system.
7.8.
If the subsequent performance fails or is unreasonable, the customer can cancel the contract (withdrawal) or reduce the purchase price (reduction).
8. Further conditions
In addition, the common conditions set out in Section F apply.
D) Hardware maintenance contracts
1. Subject matter of the contract
1.1.
The subject of hardware maintenance contracts is the hardware specified in the respective individual contract. Maintenance includes troubleshooting the hardware at the customer's request (repair). Maintenance serves to keep the hardware operational, but does not include a guarantee that the hardware will always work without interruption.
1.2.
BPO's maintenance obligations relate to the installation location specified in the service contract. If the customer later wants to install all or part of the hardware at other locations, he will inform BPO of this in writing in advance. BPO will only refuse your consent to carry out maintenance at other installation sites in the Federal Republic of Germany for good cause. BPO may require that specialists nominated by it be involved in the transport and installation work associated with a change of installation site. All direct and follow-up costs of BPO associated with the change of installation location are borne by the customer.
2. Scope of services
2.1.
During the service hours specified in Section D.3, BPO will repair the hardware at the customer's request.
2.1.1.
For this purpose, BPO maintains a central telephone number during normal service hours and an e-mail address (support@bpo-consult.de), which enable it to respond to customer inquiries within four hours at the latest in order to provide the customer with diagnostic support and advice based on their fault report.
2.1.2.
If the fault cannot be resolved immediately through telephone support, BPO will start repair work within the response time specified in the service contract, during service hours, at the installation site and continue until operational readiness is restored.
2.1.3.
The response times for on-site services are:
24 hours in the event of a total failure (it is no longer possible to work on the affected hardware = 100%)
48 hours in the event of severe faults (working on the affected hardware is only possible under significant operating restrictions= at least 75%)
120 hours in the event of minor faults and minor damage (work is possible with operating restrictions = 0 to 75%)
2.1.4.
The obligations to carry out repair work cease to the extent that operational readiness can no longer be restored or can only be restored with unreasonable effort. The expenditure is considered unreasonable if the sum of the personnel and/or material costs incurred by BPO would exceed 100% of the value of the actual hardware item to be serviced.
2.2.
For maintenance work, BPO employs qualified personnel who are familiar with the characteristics of the systems of the type used by the customer. It provides maintenance material, tools, documentation, diagnostic equipment and other aids to the extent required at its own expense.
2.3.
In the case of repair work that falls within the service period, BPO bears all costs associated with the dispatch, deployment and accommodation of its personnel and all costs associated with the repair or replacement of parts, insofar as the faults have occurred as part of the proper use of the hardware.
2.4.
Parts delivered in exchange are new or as good as new and in perfect, functional condition. The replaced parts remain the property of BPO, unless the customer buys the replacement parts. The customer assures that third-party rights do not stand in the way of this exchange and transfer of ownership.
2.5.
Maintenance services do not include:
2.5.1.
Repair work outside the service hours specified in Section D.3.
2.5.2.
Measures to eliminate faults that are based on operating errors, other improper handling, technical intervention by the customer or third parties, or external influences for which BPO is not responsible.
2.5.3.
Costs of replacement parts that are subject to particular wear and tear and data carriers. Wearing parts are usually defined as such by the respective hardware manufacturer.
2.5.4.
Maintenance of accessories, modifications, attachments or other equipment not included in the service contract.
2.5.5.
Electrical work outside of hardware.
2.6.
At the customer's request, BPO will provide additional services of the type mentioned in the previous paragraph within a reasonable period of time, provided that sufficient maintenance personnel are available at the appropriate time and the customer has no unreasonable maintenance requirements. All personnel, travel, accommodation and material costs incurred as part of such additional services are calculated in accordance with the price list in accordance with the then generally applicable BPO rates, regardless of the remuneration set out in the service contract.
2.7.
BPO records the type and duration of maintenance work in service reports, which must be countersigned by the customer, and stores this data in a database for later use.
2.8.
Within the scope of several technical repair options, BPO is entitled to choose the most economically advantageous route in each case. If, on the other hand, the customer wants a technical solution that is more expensive than the one chosen by BPO, he must bear the resulting additional costs.
2.9.
BPO is not obliged to rectify a fault under these general terms and conditions if the customer has made changes or extensions to the devices without the consent of BPO or if the equipment has been manipulated by personnel not authorized by BPO, unless the customer proves that the fault is not due to such circumstances.
2.10.
BPO is entitled to commission subcontractors to carry out the maintenance work and to use them in whole or in part.
3. Service hours
Maintenance service is provided on weekdays, except Saturdays, between 09:00 and 17:00. Any additional service hours must be agreed separately in the service contract. The service time agreed in the service contract may be changed by both parties by giving written notice of 6 weeks to the end of the quarter.
4. Compensation
4.1.
The remuneration for hardware maintenance is based on the respective service contract and is invoiced 12 months in advance. The invoice amount is due for payment in advance no later than the first working day of each calculation period. The pro rata fee for a maintenance period that is before the start of the first full calculation period is billed on a pro rata basis and is due for payment 14 days after invoicing.
4.2.
After expiry of the initial contract period, the remuneration for hardware maintenance at the beginning of each calendar year is automatically adjusted in accordance with the price development of the Destatis nominal wage index for the provision of information technology services (J62). In this respect, the four previous quarters of the index published on December 1 (0:00) of the previous year are decisive for the change. Should the increase or decrease in the maintenance fee in accordance with the index exceed 5%, the maximum adjustment is +5% or -5%.
5. Customer's obligations to cooperate
5.1.
When using the hardware and when reporting and limiting faults, the customer complies with the operating instructions and any other information provided by BPO. Within reasonable limits, the customer takes the necessary measures to make it easier to identify the errors and their causes and to abbreviate repetitive runs.
5.2.
The customer gives BPO the necessary time and opportunity to carry out maintenance work. In particular, BPO receives free access to the hardware as well as the necessary space to store equipment, tools, spare parts, etc. The customer keeps all technical equipment required to carry out the maintenance (including telephone connections and remote data connection) operational and makes this available to BPO maintenance personnel free of charge.
5.3.
At BPO's request, the customer will appoint a representative as a competent point of contact to support maintenance personnel at the installation site who is familiar with the hardware, its programs and work processes.
5.4.
Before exchanging parts or devices, the customer will immediately remove and save programs, data, data carriers, changes and installations at the request of BPO.
5.5.
BPO is exempted from its maintenance obligation as long as the customer does not comply with the above obligations to cooperate.
6. Guarantee
6.1.
BPO ensures that maintenance services comply with the agreed services in accordance with the service contract. Any lack of consistency in maintenance results must be documented by the customer in a description of the defect that is as specific as possible. If BPO is unable to eliminate significant deviations from the agreed service within a reasonable period of time, the customer must set BPO a reasonable period of grace. If BPO also fails to eliminate the deviations from the contractual performance characteristics through improvements within the grace period or to circumvent them in such a way that the customer is able to use the hardware in accordance with the contract, the customer can terminate the service contract without notice.
6.2.
The warranty expires 12 months after acceptance of the performance results or, in the absence of formal acceptance, 12 months after commissioning of the relevant service result but no later than 12 months after termination of the contract. It does not cover errors or other defects that are based on a deviation from the contractually agreed operating conditions. The warranty is void if the customer changes the maintenance results himself or has third parties change them.
7. Termination
Unless otherwise agreed individually, a maintenance contract with BPO is concluded for an indefinite period of time and can be terminated in writing with a notice period of 4 months to the end of the calendar year.
8. Further conditions
In addition, the common conditions set out in Section F apply.
E) Contracts for general IT services
1. Subject matter of the contract
General IT services provided by BPO are regulated in a BPO service contract between the parties, including these general terms and conditions.
1.2.
BPO provides consulting and other services to the best of its knowledge, in accordance with the standards set for the respective software and with the aim of enabling the customer to work with their hardware and software in accordance with the scope of services agreed in each individual contract, but without providing a guarantee of the success of the services. The customer is always responsible for the project and success.
1.3.
BPO is entitled to commission subcontractors to provide IT services and to use them in whole or in part.
2. Cooperation between the contracting parties
2.1.
The customer will submit requests regarding the service to be provided exclusively to the responsible contact person named by BPO in the contract and will not give instructions to the other persons employed by BPO.
2.2.
If a person appointed by BPO to fulfill the contract is replaced by another person at the customer's request and training is required, this will be borne by the customer. When making a selection, BPO will adequately take into account the interests of the customer.
2.3.
The customer may demand the replacement of a person appointed by BPO to fulfill the contract on the grounds that the person has repeatedly and seriously breached contractual obligations. The costs arising from this exchange are borne by BPO.
3. Rights to embodied service results
3.1.
BPO grants the customer the simple, perpetual and transferable right to use the embodied service results provided under the service contract, insofar as this results from the purpose and scope of use of the contract. These rights include the agreed interim results, training materials and tools.
3.2.
Deviations from these terms of use require agreement in the respective service contract.
4. Customer cooperation
4.1.
The customer will support BPO in providing the contractual services to an appropriate extent. In particular, he will provide her with the necessary information and documents in full and timely. Additional cooperation services require a separate agreement in the contract.
4.2.
The customer is responsible for backing up data before and during the execution of services.
5. Compensation
5.1.
Payment based on expenses agreed in the contract is the remuneration for the time spent on the contractual services, unless otherwise agreed. Material costs are paid separately. Waiting times attributable to the customer through BPO are remunerated in the same way as working hours. BPO creates subsequent invoices on a monthly basis, unless otherwise agreed. Payment based on expenses is due upon receipt of an auditable invoice and the proof of performance signed by BPO and approved by the customer by countersigning, unless another form of proof of performance has been agreed. For activities that take place outside the customer's premises, the basis for remuneration is the respective records of the BPO project employee and the resulting reports from BPO's service recording system, which are attached to the invoice.
5.2.
The respective performance records from BPO are also considered approved if and insofar as the customer does not raise objections within 14 calendar days of receipt. If an upper limit is set in accordance with expenses agreed upon, BPO is obliged to provide its services in full even when this limit is reached.
5.3.
A fixed price agreed in the contract is the fee for all contractual services that is due after the service has been provided in full. The precondition for the due date is the receipt of a verifiable invoice.
5.4.
Travel times, travel expenses and additional costs are reimbursed in accordance with the applicable BPO price list.
6. Modification of service
6.1.
After conclusion of the contract, the customer may request changes to the scope of services within the scope of BPO's performance, unless this is unacceptable for BPO. The amendment procedure must be agreed individually in writing between the parties.
6.2.
BPO must review the customer's request for change and inform him within 10 working days whether the change request is unreasonable or impracticable for them. If the request for change is reasonable and feasible, BPO will at the same time state whether a comprehensive review is required or not.
6.3.
If a comprehensive review of the amendment is required, BPO must at the same time submit a corresponding audit offer with information on the remuneration. The customer will either issue or reject the inspection order within 10 working days. If a comprehensive review of the request for change is not required, BPO must either submit an implementation offer, specifying the performance period, planned dates and effects on remuneration, or agree to implement the requested changes.
6.4.
The customer will accept or reject BPO's implementation offer within the binding period. Agreed changes to services must be documented in a binding manner by making appropriate adjustments to the contract.
6.5.
The customer and BPO may agree that the services affected by the change request will be interrupted until the contractual arrangements have been amended as necessary.
6.6.
If the necessary adjustment of the contractual agreements is not made within the binding period of the implementation offer, the work will continue on the basis of the existing contract. The performance periods are extended by the number of working days on which work was interrupted as a result of the request for change or the review of the request for change. BPO may demand the agreed compensation for expenses or an appropriate increase in the agreed fixed price for the duration of the interruption, unless BPO has used or maliciously refrained from employing its employees affected by the interruption.
7. Qualitative performance disorder, obligation to give notice of defects
7.1.
If a service is not provided in accordance with the contract or is faulty and BPO is responsible for this, BPO is obliged to provide the service in accordance with the contract within a reasonable period of time at no additional cost to the customer. The prerequisite is a complaint from the customer, which must be made immediately, at the latest within 2 weeks of receipt. If, for reasons for which BPO is responsible, the provision of the service in accordance with the contract fails in significant parts even within a reasonable period of grace to be set expressly by the customer, the customer is entitled to terminate the contract without notice.
7.2.
The right to extraordinary termination for good cause remains unaffected.
7.3.
BPO is always entitled to compensation for services provided under the contract up to the effective date of the termination. The remuneration is only waived for services for which the customer demonstrates within 4 weeks of the declaration of termination that they are of no interest to him.
7.4.
Further claims by the customer due to quality performance problems are excluded. This exclusion does not apply in cases of intent or gross negligence or injury to life, limb or health.
8. Further conditions
In addition, the common conditions set out in Section F apply.
F) Common conditions for all the above types of contracts
1. Validity of the conditions
All contracts, deliveries and services are concluded exclusively in accordance with these general terms and conditions (GTC). Different terms and conditions of the customer only apply if they have been expressly accepted in writing by BPO. Confidentiality on the part of BPO is not considered recognition, even after receipt of such conditions. These general terms and conditions apply unless otherwise agreed in the respective individual contract.
2. Conclusion of contract
Information provided by BPO in brochures, advertisements, etc. is non-binding. Offers from BPO are non-binding and freely revocable. If the customer places an order on the basis of an offer from BPO, the customer is bound to it for 6 weeks. A binding contract is only concluded upon written acceptance of the order by BPO.
3. Prices and terms of payment
All prices and fees agreed with BPO are net prices, which are increased by the respective statutory value added tax. Unless otherwise specified in the respective contract or the above conditions, deliveries and services are due for payment immediately and without deduction upon invoicing. BPO does not accept bills of exchange.
4. Retention of title
4.1.
Until full payment of the purchase price by the customer, all products delivered by BPO remain the full property of BPO; in the case of payment by check, until they are credited to a BPO account.
4.2.
The retention of title also applies in the event of installation and/or further processing and/or processing of the delivered products by the customer (extended retention of title) subject to the following conditions:
4.2.1.
The processing or transformation of the delivered products by the customer is always carried out for BPO without binding BPO on its part. If a product is processed with other objects not belonging to BPO, BPO acquires joint ownership of the new item in proportion to the value of the delivered product (final invoice amount, including VAT) to the other processed items at the time of processing. The new item created as a result of processing is otherwise the same as for products delivered subject to reservation.
4.2.2.
If delivered products are inseparably mixed with other items not belonging to BPO, BPO acquires joint ownership of the new item in proportion of the value of the product (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is regarded as the main thing, it is considered agreed that the customer transfers joint ownership to BPO on a pro rata basis. The customer stores the resulting sole or joint ownership for BPO at his own expense.
4.3.
If the customer is responsible for payment arrears and in the event of a significant breach of due diligence or custody obligations, the assertion of the retention of title by BPO is not considered a withdrawal from the contract, unless BPO expressly notifies the customer of this.
4.4.
If BPO asserts the retention of title, the customer's right to continue using the software expires. All program copies made by the customer must be handed over to BPO or deleted.
5. Delivery dates, consequences of delays
5.1.
Delivery dates specified in contracts are always non-binding. After a non-binding delivery period of 4 weeks has been exceeded, the customer can request BPO to deliver within a reasonable period of time. This reminder may be used to justify a delay in delivery.
5.2.
If BPO defaults in fulfilling a main performance obligation, the customer can only withdraw from the contract or claim compensation for non-performance if he has set a period in writing for performance or subsequent performance that has expired without effect.
6. Liability for responsible breach of duty
6.1.
BPO is not liable for breaches of duty for which it is not responsible.
6.2.
BPO is fully liable for damage resulting from injury to life, limb or health based on a negligent breach of duty by BPO or an intentional or negligent breach of duty by a legal representative or vicarious agent of BPO.
6.3.
In the case of other liability claims, BPO is only liable without limitation in the absence of a guaranteed quality or obligation to perform as well as for intent and gross negligence on the part of its legal representatives and executives. BPO was only liable for the fault of other vicarious agents to the extent of liability for slight negligence in accordance with section F6.4 of these liability clauses.
6.4.
BPO is only liable for slight negligence if an obligation is breached whose compliance is of particular importance for achieving the purpose of the contract (cardinal obligation). In the event of a breach of a cardinal obligation, liability is limited in total to the agreed purchase price, the estimated project fees at the time of conclusion of the contract or the maintenance fees paid by the customer in the 12 months preceding the damage event, as well as to such damages, the occurrence of which typically had to be expected as part of the conclusion of the contract. The same restrictions also apply to indirect or sequential damage that was unforeseeable for BPO. If the claim event is covered by liability insurance from BPO, the obligation to pay compensation is also limited to insurance benefits.
6.5.
Liability for data loss is limited to the typical recovery costs that would have occurred if data backups were made regularly and in accordance with risk.
6.6.
The above regulations also apply mutatis mutandis to employees, representatives or vicarious agents employed by BPO.
6.7.
Liability under the Product Liability Act remains unaffected (Section 14 Product Liability Act).
7. Offsetting
Offsetting against claims by BPO arising from contracts is only permitted with undisputed or legally established claims by the customer.
8. Third party property rights
8.1.
If a third party makes claims against the customer due to the infringement of property rights through the use of the delivered products or the provision of service results and their use is affected or prohibited as a result, BPO is liable as follows:
8.2.
At its discretion and at its expense, BPO will either change or replace the delivered products and/or services in such a way that they do not infringe the property right, but essentially comply with the agreed service and functional features in a manner reasonable for the customer or release the customer from licensing fees vis-à-vis the property right holder or third parties. If BPO fails to do so under reasonable conditions, BPO must take back the products in return for reimbursement of the remuneration paid minus an amount taking into account the time of use. In this case, the customer is obliged to return the products.
8.3.
The prerequisites for BPO's liability under the previous paragraph are that the customer immediately notifies BPO of third-party claims, does not recognize the alleged infringement of property rights and either surrender any dispute, including any out-of-court arrangements, to BPO or only conducts it in agreement with BPO. Any necessary court and attorney fees incurred by the customer as a result of legal defense shall be borne by BPO.
8.4.
If the customer discontinues use for damage reduction or other important reasons, he is obliged to inform the third party that the cessation of use does not imply an acknowledgment of the alleged infringement of intellectual property rights.
8.5.
Insofar as the customer is responsible for the infringement of property rights, claims against BPO are excluded.
8.6.
Further claims by the customer due to an infringement of third-party property rights are excluded. This exclusion does not apply in cases of intent, gross negligence and injury to life, limb or health.
8.7.
The customer will support BPO with information and in other forms in defending or settling a claim in a settlement within the scope of its capabilities.
9. Confidentiality and data protection
9.1.
The contracting parties are obliged to keep the information and documents received from each other when concluding and executing the contracts, which are not obvious (confidential information), strictly confidential and to take all necessary measures to prevent access and use by third parties. This applies in particular to all information about the internal concerns of the other contracting party. Confidential information may also include information that becomes known during an oral presentation or discussion and has been described as confidential during this time. Confidential information may only be used for the purpose of providing the contractual services. These obligations also apply beyond the termination of the contract.
9.2.
The obligation of confidentiality does not apply to information that is already legally known to the respective contracting party or becomes known outside of this contract without breach of a confidentiality obligation.
9.3.
Employees of the contracting parties, unless they are already required to do so on the basis of their employment contract, are obliged to maintain secrecy insofar as they come into contact with information and documents subject to confidentiality. The same applies to vicarious agents of the contracting parties. In addition, the transfer of information to third parties requires the prior written consent of the other contracting party.
9.4.
A contracting party will immediately destroy the other's confidential documents, business internals and trade secrets received after the end of the contract, at the option of the other contracting party, and immediately confirm them in writing at the request of the other contracting party or return them to the other contracting party without withholding copies of them in any form.
9.5.
These conditions inform the customer that their data will be stored and processed electronically by BPO for the purpose of fulfilling the contract. By accepting these general terms and conditions, the customer agrees to this.
9.6.
The contracting parties commit themselves to observing and complying with the legal provisions on data protection as part of their business operations. The contracting parties will impose corresponding obligations on their employees and the rest of the people who come into contact with the products.
10. Export regulations
If the customer intends to export or otherwise export products delivered by BPO, he will comply with the export regulations of Germany and the respective import regulations of the exporting country (e.g. USA).
11. Final provisions
11.1.
BPO is entitled to amend these general terms and conditions during the contract period with a notice period of three months to the end of the year. The current terms and conditions are ü retrievb
11.2.
In all legal relationships between BPO and the customer, the laws of the Federal Republic of Germany apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. Only the present German version of the general terms and conditions of contract is legally valid and binding. A language translation is only used to inform the customer.
11.3.
The place of jurisdiction is Walsrode.
Version valid from 01.10.2024
Do you have a question or would you like to make an appointment? We'd love to hear from you and will get back to you as soon as possible!
.png)
