General Terms and Conditions of Parlant GmbH

1. Scope and Binding Period

1.1. These General Terms and Conditions of Purchase (hereinafter “GTC”) shall apply to business relationships of PARLANT GmbH, Weserstr. 55, 12045 Berlin (hereinafter „PARLANT”) with their customers. PARLANT is an IT service provider in the areas of:

• software development
• support in the form of system administration
• IT consulting.

1.2. The content of the contract shall always be governed by the offer documents prepared by PARLANT and accepted by the customer. In the event of contradictions between the offer documents and the GTC, the offer shall prevail.

1.3. The customer’s general terms and conditions shall only become part of the contract instead of or in addition to these GTC if PARLANT expressly confirms this to the customer in writing at the time of the conclusion of the contract. The customer is aware that the commencement of performance by PARLANT shall under no circumstances be construed as acceptance of any general terms and conditions of the customer.

1.4. PARLANT shall be bound by a binding offer for fourteen (14) days from the date of issue of the offer, unless another period is specified in the offer documents.

1.5. PARLANT shall reserve the right to amend these GTC at any time. The customer shall be informed of the amendments in writing four weeks before they come into force. The customer shall be notified of the new GTC as part of this information. The customer shall be entitled to object to the validity of the new GTC within four weeks after receipt of this notification. If the customer fails to object, the amended GTC shall become part of the contract after expiry of the four-week period. PARLANT shall expressly draw the customer’s attention to this period in the notification of amendment.

2. Services of PARLANT

2.1. PARLANT shall perform its services in accordance with the terms of the contract and in accordance with the recognized state of the art. PARLANT shall be obligated to comply with technical or other standards only to the extent that such standards are expressly listed in the offer documents. In that case, these standards shall apply in the version applicable at the time the offer is submitted. Performance dates or deadlines shall only be binding on PARLANT and cause default if they have been expressly designated as binding by PARLANT in writing.

2.2. PARLANT shall owe the disclosure of source code only to the extent expressly agreed in the contract documents.

2.3. PARLANT shall use carefully selected own employees or third parties as subcontractors with the respective required qualifications for the performance of the Services. PARLANT shall be entitled at any time to replace its own employees or third parties used for the performance of the Services by employees with comparable qualifications and experience. If these employees have been communicated to the customer by name, PARLANT shall inform the customer of the replacement.

2.4. The agreed remuneration shall only cover the scope of services documented in the offer documents. Additional services shall be charged separately on the basis of the agreed rates, unless they are essential and commercially insignificant auxiliary services. To the extent that the description of services in the offer documents contains unintended gaps or ambiguities, PARLANT shall be entitled to adjust the description of services accordingly at its reasonable discretion.

2.5. PARLANT shall not provide any legal advice and shall therefore not bear any responsibility for the compliance of the agreed work results with any laws.

3. Obligations of the Customer

3.1. The customer shall recognize their obligations to cooperate as a requirement for the provision of services by PARLANT and thus as their contractual obligation. In particular, the customer shall make decisions incumbent upon them regarding the performance of the contract and the content of the contract without undue delay and notify PARLANT thereof, and shall review any proposed changes by PARLANT without undue delay.

3.2. In order to ensure smooth execution of the contract, the customer shall appoint a contact person for PARLANT internally. This contact person shall be authorized to make all relevant decisions in a binding manner or to bring about binding decisions in a timely manner. In the event of a change, the customer shall be obliged to appoint a new contact person without undue delay. In the event of the absence of the contact person, a substitute shall be designated by e-mail.

3.3. The customer shall, without being requested to do so, inform PARLANT of any requirements and procedures that are typical and/or specific for the respective industry and company, unless such requirements and procedures are not relevant for the performance of the services. The customer shall provide PARLANT, free of charge and in a timely manner, with all means, information and documents necessary for the successful performance of the service and, if work is to be performed on the customer’s premises, with an appropriate infrastructure, including office space, IT and communication facilities. The customer shall, without being requested to do so, inform PARLANT of all circumstances that are significant for the effective performance of the service.

3.4. In the event that the customer fails to fulfill a duty or obligation, fails to do so properly or is late in doing so, and PARLANT is therefore unable to perform its services in accordance with the contract, agreed deadlines for performance shall be extended in accordance with the delay in addition to a reasonable period for resumption of the work. PARLANT shall additionally charge the customer for the additional expenses caused thereby, in particular for the extended provision of the personnel or material resources used, at the agreed rates. Any other further rights of PARLANT due to the customer’s failure to cooperate or insufficient cooperation shall remain unaffected.

4. Modifications of Services (Change Requests)

4.1. Both parties shall be entitled to propose changes to the content and scope of the agreed services at any time (hereinafter referred to as „Change Request”). Change Requests shall be submitted in writing to the other party.

4.2. If the customer submits a Change Request, it shall notify PARLANT thereof by e-mail. PARLANT shall notify the customer of the estimated effort required to review the Change Request and the duration thereof, as well as any additional remuneration that may be due for reviewing the Change Request. If the customer orders the review of the Change Request under the notified conditions, PARLANT shall communicate its estimation of the consequences (in terms of effort, duration and remuneration) in the event that the Change Request is carried out. Otherwise PARLANT shall not be obliged to review the Change Request. The review of a Change Request shall be remunerated by the customer on the basis of the agreed rates or, in the absence of an agreement, at standard market prices, even if PARLANT is not subsequently commissioned with the implementation of the Change Request.

4.3. PARLANT shall not refuse to execute a Change Request without substantial cause. Significant reasons shall be, for example, if in PARLANT’s opinion the success of the agreed service would be jeopardized as a result of the implementation or if PARLANT is not capable of implementing the requested change, e.g. due to a lack of know-how or personnel. The customer shall be entitled to reject PARLANT’s Change Requests without giving any cause. In the event that customer rejects Change Requests against PARLANT’s recommendation, customer shall assume responsibility for the consequences resulting from such rejection. This shall have no effect on PARLANT’s contractually agreed performance obligations.

4.4. Changes to the contract shall only become effective upon the signing of a written agreement containing the changes to the previous service agreement connected with the implementation of the Change Request. PARLANT shall continue the work on the basis of the existing contract until then.

5. Acceptance

5.1. Works of a material and immaterial nature to be performed by PARLANT (hereinafter „Works”) shall be subject to acceptance. Service results shall not be subject to acceptance. If it is not clear from the offer documents and the character of the services whether they are Works or services, PARLANT shall provide them as services. It may be described in the offer documents that defined partial results of work performances are accepted separately (real partial acceptance). Accepted partial results are the basis for the continuation of the work; they are not covered by any right to withdraw from the contract. In this respect, the object of a separate acceptance is merely the contractual interaction of these partial services with other results (integration).

5.2. PARLANT shall make the Works available to the customer for acceptance upon completion. Unless otherwise agreed, the customer shall declare acceptance of the Works within five (5) working days after their provision if the Works produced do not have any defects that prevent acceptance within the meaning of the following provisions.

5.3. In the event of Works involving software, the parties shall agree on the course and scope of the acceptance test at the beginning of the performance of the contract or, in the event of an iterative procedure, also during the performance of the contract. For the performance of the acceptance test, the customer shall provide test data as well as the test results expected by them in due time prior to the provision of the Works in the form specified by PARLANT in the Offer documents. PARLANT shall be entitled to participate in the acceptance test and to inspect the test results.

5.4. Defects preventing acceptance shall be class 1 and class 2 defects as defined below:

• Class 1 defects shall be deviations that result in the Works or a central part thereof not being usable by the customer (e.g.: frequent unavoidable system crashes).
• Class 2 defects shall be deviations that result in significant restrictions of use for important functions of the Work that cannot be circumvented for a reasonable period of time that is tolerable for the customer (e.g.: incorrect application results in terms of content; errors in reports).
• Class 3 defects shall be all other deviations.

5.5. The parties shall assign the deviations identified during the acceptance test to the defect classes by mutual agreement. The customer shall document the result of the acceptance test, including the defects that have occurred and their classification, in full in an acceptance report within the acceptance time limit. In the event that the customer has rightfully refused acceptance, PARLANT shall remedy the documented defects preventing acceptance. The necessary parts of the acceptance test shall then be repeated.

5.6. Works shall be deemed accepted as soon as the customer uses them productively or if, within 14 days after provision of the Works, the customer has not submitted a list of defects in which at least one defect preventing acceptance is listed. In the event that the customer requests design changes after provision of the Works or other project results that are not the subject of a notice of defects, PARLANT shall make an effort to take such requests into account at a later date. Section 4 shall apply in this case.

6. Prices and Terms of Payment

6.1. The prices stated in the offer documents are in euros, excluding the statutory VAT applicable at the time of performance of the service and without deductions.

6.2. In accordance with the contractual agreement, the prices stated shall be invoiced in advance, at the beginning of the agreed service period, or subsequently on a monthly basis or upon completion of the service provision according to actual expense.

6.3. If the remuneration is calculated on the basis of “person days” or similar, one such “day” shall correspond to up to eight hours worked by one employee on one calendar day.

6.4. If PARLANT incurs additional expenses due to gaps or ambiguities in the documents provided by the customer, such additional expenses may be invoiced at the agreed rates or, in the absence of an agreement, at the prices customary in the market. This shall also apply to additional expense resulting from contradictory or incorrect information provided by the customer.

6.5. Travel costs, allowances and other ancillary costs as well as out-of-pocket expenses incurred by PARLANT for the performance of the contractually owed service shall be invoiced additionally and according to expenditure. Unless otherwise agreed in individual cases, PARLANT shall invoice travel time at 50% of the agreed hourly rate or, in the absence of an agreement, at standard market rates.

6.6. Unless otherwise agreed, invoices shall be due for payment 14 days after receipt of the invoice and the granting of discounts is excluded. In case of doubt, invoices shall be deemed received three working days after the invoice date.

7. Copyrights and Rights of Use

7.1. PARLANT grants the customer a temporally and territorially unlimited, non-exclusive, non-transferable right of use for their internal corporate purposes for the Works and service results created for the customer (hereinafter collectively referred to as „Work Results”). This right of use is transferable or sublicensable to affiliated companies of the customer within the meaning of Section 15 of the German Stock Corporation Act (Aktiengesetz); transferability / sublicensability shall otherwise be excluded. PARLANT grants this right of use to the customer on condition of full payment and, in the case of Works, acceptance.

7.2. Until payment has been made in full and, in the case of Works, until acceptance of the Work Results, the customer shall have the right to test the Work Results as agreed. This right shall expire if the customer is in default of payment for more than 30 days. A separate reminder by PARLANT shall not be required for this purpose.

7.3. Clause 7.1 shall not apply to standard products which are part of the Work Result. Standard Products shall be separable products or solutions of PARLANT or of third parties that are subject to their own license terms. The customer’s rights to these Standard Products shall be determined exclusively in accordance with their license terms.

7.4. Notwithstanding Section 7.1, the customer shall be granted rights of use to work results that contain “open source software” or adaptations of this software in accordance with the relevant license conditions for this software (e.g. „GNU General Public License”). Both parties shall be obligated to observe these license terms. PARLANT shall not give any warranty with respect to such components. The license texts of the relevant open source licenses shall be provided to the customer with the development services.

7.5. The grant of rights under Section 7.1 shall not apply to any materials or solutions (hereinafter „PARLANT IP”), pre-existing at PARLANT, including any modifications and additions made thereto. PARLANT shall at all times retain all rights to PARLANT IP. The rights of use granted to the customer in respect of PARLANT IP incorporated in the Work Results shall be determined in accordance with the purpose of the contract as set out by both parties. The isolated use of PARLANT IP shall be excluded.

7.6. PARLANT shall, while complying with its confidentiality obligations, in any case and without limitation be entitled to make unrestricted use of the Work Results, including the know-how acquired in the course of the performance of the project, in particular the concepts, procedures, methods and interim results on which the Work Results are based.

7.7. To the extent that PARLANT’s performance produces Work Results that are patentable or utility modelable, PARLANT shall be entitled to file a corresponding application for property rights in its own name and for its own account. To the extent necessary, PARLANT shall grant the customer the right to use the property right together with the Work Results. No separate remuneration shall be payable for this property right license.

7.8. The customer shall grant PARLANT the non-exclusive right to use any intellectual property existing on its premises free of charge to the extent PARLANT deems this necessary for its own performance of the services.

8. Warranty for Defects in Quality and Defects in Title

8.1. PARLANT shall ensure that the contractually agreed services are performed with due care and in accordance with the standards customary in the industry, taking into account its special knowledge and experience. Works shall be free from material defects if they essentially have the agreed quality described in the contract at the time of the passing of risk. In this context, “Warranties” (esp. regarding characteristics and/or durability) are only those which are expressly designated as such in the contract.

8.2. Works that, after acceptance, do not meet the agreed requirements or the quality customary in the industry shall be objected to in writing by the customer. Only the contact person (clause 3.2) shall be authorized to give notice of defects. The customer’s statutory obligations to give notice of defects shall remain unaffected. Legally required notifications of defects must be made without delay in writing with a precise description of the problem.

8.3. Customer’s claims for material defects shall become time-barred within twelve months after acceptance, unless PARLANT has fraudulently concealed the material defect. The statutory limitation period for claims for damages by the customer due to material defects shall remain unaffected. The customer shall have no right of retention if its claims for defects are time-barred.

8.4. PARLANT shall be entitled to determine the type of subsequent performance at its sole discretion. The customer shall tolerate two attempts to remedy the defect. The establishment of the contractually stipulated use shall also be deemed to be a reasonable possibility of fault circumvention made available to the customer with regard to the development services („Workaround”), insofar as an insignificant fault remains after taking the workaround into account.

8.5. The customer shall support PARLANT in the analysis and elimination of the defects to the extent necessary and free of charge. This includes in particular the provision of documents and information to PARLANT free of charge to a reasonably acceptable extent. In the event that the notice of defect is unjustified, PARLANT shall be entitled to demand compensation from the customer for the expenses incurred by PARLANT. The support provided shall be remunerated by the customer at the prices agreed with PARLANT or, in the absence of an agreement, at the prices customary in the market.

8.6. PARLANT shall not be responsible for material defects in the event of only minor deviations from the agreed characteristics, in the event of only minor impairment of usability, or for material defects based on specified by the customer or approved by the customer faulty or incomplete performance descriptions and requirements (e.g. in the form of specifications), concepts or defective services provided by the customer or by third parties engaged by the customer. PARLANT shall also not be responsible to the extent that Works have been modified after their acceptance, unless the customer can prove that the defect is not a consequence of the modification. The customer’s claim for remedy of defects shall also be excluded if the defect is not reproducible or cannot be demonstrated from handwritten or machine-recorded output.

8.7. PARLANT shall warrant that the Work Results provided do not infringe any rights of third parties if used by the customer in accordance with the contract. This warranty is conditional upon the customer immediately notifying PARLANT in writing of any third party rights asserted against them and leaving the legal defense and settlement negotiations to PARLANT. The customer shall support PARLANT in this respect free of charge to a reasonably acceptable extent, in particular by providing PARLANT with any information required for this purpose. The customer’s statutory obligations to give notice of defects shall remain unaffected. Rights in this sense shall only be those to which the third party is entitled in the Federal Republic of Germany. The Sections 8.2 sentence 2 and 8.4 shall apply accordingly to defects of title. Self-remedy by the customer or by involving third parties shall be excluded. Section 9 shall apply to claims for damages by the customer.

8.8. The customer shall have no entitlement to claims based on defects of title if the development services have been modified by the customer or third parties after acceptance, unless the customer proves that the infringement of rights is not the result of the modifications. The customer shall also have no claims in the event of any infringement of rights resulting from a combination of PARLANT’s services with such services or products of third parties who are not subcontractors of PARLANT in this respect.

9. Liability

9.1. PARLANT shall be liable without limitation for damage caused by it, their legal representatives or vicarious agents through gross negligence or intent. Furthermore, PARLANT shall be liable without limitation for damages resulting from culpable injury to life, body or health.

9.2. Only in the event of a breach of fundamental contractual obligations, the breach of which jeopardizes the purpose of the contract and the fulfillment of which the other Party could particularly rely on (so-called cardinal obligations, “Kardinalpflichten”), shall PARLANT also be liable in cases of simple negligence. This liability shall be limited to compensation for damages that were typically foreseeable at the time of conclusion of the contract.

9.3. Apart from cases of unlimited liability pursuant to clause 9.1, liability for indirect damage shall be excluded.

9.4. The liability of the parties for damages under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

9.5. To the extent that PARLANT is not responsible for the backup of the customer’s data, liability in the event of data loss shall be limited to the recovery expenses that would have been required if the customer had dutifully backed up the data.

10. Confidentiality and Data Protection

10.1. The parties shall keep secret all information of the respective other Party which comes to their knowledge in the course of the cooperation and which is subject to confidentiality, i.e. shall protect such information from being disclosed to unauthorized persons with due diligence. Authorized persons in the sense of this provision are the Subcontractors used in accordance with the contract. The parties shall undertake to involve in the cooperation only such employees or third parties whom they have previously bound to confidentiality in a comparable form.

10.2. All information of a Party - irrespective of its form - which is identified in writing as requiring confidentiality or the confidentiality of which clearly results from its nature, in particular trade and business secrets, shall be deemed to require confidentiality. This also includes pre-existing IP.

10.3. Non-confidential information shall be information of which the receiving Party can prove that it either (i) is or was commonly accessible, (ii) was already in the possession of the Party without any obligation to maintain confidentiality, (iii) was developed independently and without the use of confidential information by another Party, or (iv) lawfully acquired the information from a third party who was not bound to maintain confidentiality.

10.4. The parties shall comply with the applicable regulations on the protection of personal data. If PARLANT processes personal data of the customer as a processor (Auftragsverarbeiter) (e.g. in the context of hosting, support or development with access to real data of the customer), the parties shall enter into a contract processing agreement (Auftragsverarbeitungsvereinbarung) in accordance with customary market standards.

11. Contract Term and Termination

11.1. The term of this agreement shall commence upon signature, unless otherwise stipulated.

11.2. Unless otherwise stipulated in the contract, the contract shall have a minimum term of twelve (12) months. The contract may be terminated by either party with three (3) months’ notice to the end of the term. If no notice of termination is given, the term shall be extended by twelve (12) further months each time.

11.3. Notwithstanding any rights to ordinary termination of services, the right of both parties to give written notice of termination for good cause shall remain unaffected. If the reason for termination consists of a breach of a contractual obligation, the terminating party shall, prior to termination, set a reasonable time period for the other Party to remedy the cause for termination. All circumstances which make further cooperation with the other Party infeasible, in particular also default in payment of substantial amounts or repeated or persistent grave deficiencies in cooperation, shall be deemed to be good cause for termination.

11.4. All notices of termination under this Agreement shall be in writing; text form shall not be permitted. Transmission of the termination letter by fax or (as a scan) by e-mail shall be permitted.

12. Other

12.1. The parties shall be entitled to use each other’s companies and trademarks publicly as a reference. In addition, the customer shall have the option to act as a reference customer for PARLANT on the basis of a separate agreement.

12.2. Offsetting (Aufrechnung) by the customer shall only be possible with an undisputed or legally established counterclaim.

12.3. If the written form is required according to these GTC, the text form shall be sufficient for compliance with the same, unless otherwise stipulated in the individual case.

12.4. The legal relationship between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

12.5. If any provision of this agreement is or becomes invalid or unenforceable in whole or in part, this shall not affect the other provisions. Any gap or omission resulting from the invalidity or unenforceability of a provision of this agreement shall be filled analogously by way of supplementary interpretation of the contract, taking into account the interests of the parties involved.

12.6. The German version shall be decisive for the interpretation of the contract.

12.7. The exclusive place of jurisdiction shall be Berlin.