General terms and conditions of supply and service of KWP INSIDE HR
All supplies and services of the Contractor to business persons shall be done solely on the basis of the following terms and conditions of business. The terms and conditions of business of the Customer shall not be valid even if the Contractor has not explicitly objected to them and performs the delivery or service. If the validity of the terms and conditions of business of the Customer have been explicitly agreed upon in individual cases, then any such approval shall only apply for that individual case and not for earlier or subsequent deliveries and services.
II. Quotation, conclusion of contract, written form
The quotations given by the Contractor are always non-binding and are always given subject to the credit checking of the Customer providing positive results. The contract with the Contractor shall only come into force after an order has been placed by the Customer and is subject to the credit checking providing positive results. Any details that are to be given before the order in the course of order processing, and in particular concerning data on performance or consumption or other individual items, are only binding as agreements concerning the composition of the deliveries or services provided by the Contractor if they had been made in writing by the Contractor when the order is confirmed or if they are also confirmed subsequently in writing as binding.
III. Remuneration and payment / service period / Change Request procedure
- All prices are to be understood as being quoted without Value Added Tax, which shall be added to the quoted price at the applicable rate that is current at the time of the provision of the service.
- Invoices are due for payment immediately on receipt. No discount is granted.
- If during the course of the project additional requirements arise with reference to the offered services, then an additional cost estimate is to be made by the Contractor and this will be billed to the Customer once it has been approved and implemented.
- With regard to the performance time, deadlines that have been agreed on are non-binding unless it has been explicitly agreed and in writing that they are binding. If the Contractor is waiting for the cooperation of the Customer or for information from the Customer or else is hindered in the performance of the contract by strikes, lockouts, official intervention or other circumstances for which the Contractor is not to blame, then the set times for delivery and performance shall be regarded as extended or postponed by the amount of time of the hindrance and also by a reasonable and appropriate resumption time after the end of the hindrance. The Contractor is to notify the Customer of this hindrance.
- While a project is running the Customer is entitled to propose in writing changes to the project, and in particular with regard to the agreed services, methods and deadlines. The Contractor shall inform the Customer within a week of receipt of the written recorded delivery request for a change as part of a Change Request as to whether or not the change is possible and what effects it would have on the relevant existing contract regarding the timing and scheduling and the additional costs that would be incurred as a result of the change in question (Change Quotation). The Customer can either accept this in writing within one week of receipt of the Change Quotation or else object to it in writing. If the Customer does not reply within this period of time then the Change Request will be taken as accepted after the expiry of this period of time and will become a constituent part of the contract. The Contractor shall notify the Customer at the beginning of this period of time about the envisaged importance of his behaviour. The contract will be executed under unchanged conditions until the Change Request has become a constituent part of the contract. The additional costs arising from the checking of the Change Request can also be billed for by the Contractor.
IV. Obligation of the Customer to cooperate
- The Contractor can only fulfil his contractual obligations if the Customer likewise complies with his obligation to cooperate. The Customer is required to comprehensively support and assist in the execution of the contract over the entire period that the contract is in force. In order to fulfil the performance obligations of the Contractor, the Customer shall provide at no cost the required prerequisites concerning the technical, operational and legal requirements for the execution of the services of the Contractor. A partial acceptance by the Customer is to be carried out according to the progress of the relevant project. In particular, the Customer shall guarantee in accordance with the needs of the Contractor the required access to hardware and software and his telecommunications system. This also applies outside the normal hours of business if the fulfilment of the contract requires it.
- The Customer shall suitable precautions of his own regarding the backing up of his data. The Contractor can thus always proceed on the basis that all the data that he will come into contact with has been backed up.
- Employees of the Contractor shall be given the required workplaces and working equipment at no charge at the relevant location of the Customer. This also applies outside the normal hours of business if the fulfilment of the contract requires it.
- The above-mentioned obligations are the main obligations of the Customer.
All rights to the work results, and in particular copyrights, the rights to inventions and technical industrial property rights, shall be exclusively given to the Contractor with respect to the Customer and also to the extent that the work results arose as a result of stipulations by the Customer or in cooperation with the Customer. If nothing has been agreed upon in writing to the contrary. the Customer has upon payment in full of the sub-amounts that are due for payment up to and including the time of acceptance a simple usage right for the work results for the purpose of handling his internal business transactions and those of those companies that he is associated with within the meaning of Article 15 of the German AktG [Company Law] to the same extent as that for KWP software. Use exclusively for test purposes is to be permitted before the acceptance to the required extent. The Customer is entitled to make the necessary backup copies of the work results. Each backup is to be labelled as such and marked with the copyright notice of the original data media.
VI. Transfer of risk
- The risk of accidental destruction or impairment of the item shall be transferred to the Customer as of the acceptance, and if an acceptance as such had not been agreed upon, then with the handover. The stipulations concerning delay in acceptance in accordance with Articles 293 ff. of the German BGB [Civil Code] shall remain unaffected. The Customer shall however have already taken beforehand suitable technical and organizational measures for the security of the project in accordance with the current state of the art of technology..
- If the service that had been wholly or partially provided is damaged or destroyed before acceptance - or if an acceptance as such had not been agreed upon, then upon handover - as a result of force majeure or due to any other circumstances for which the Contractor was not responsible for, then the Contractor has a claim to a corresponding part of the remuneration of the service that had been provided after deducting or offsetting any costs and expenses that he had saved.
- In the cases of all the services that accessible in an acceptance the Contractor can request a written declaration of acceptance from the Customer. The Customer shall accept the services directly according to the scope of this section VII. To do this, an acceptance certificate to be signed by both parties to this contract can be drawn up.
- If a factory contract has as its object multiple individual works that are usable independently of one another, then these individual works will be accepted separately.
- If sub-works/milestones have been defined in a factory contract then the Contractor can offer sub-works for acceptance. In the event of subsequent acceptances, only the functioning of the sub-work and the correct interaction of the previously accepted sub-works will be tested with the new sub-work.
- If the contract includes the drawing up of a concept, especially for the specification, amendment or upgrading of standard software, then the Contractor can request a separate acceptance for the concept.
- The Customer is required to check the results of the performance of the service within 14 days of being requested to do so by the Contractor and to declare in writing to the contact person either that an acceptance has been given or else that deficiencies have been found and shall give a more detailed description with details of the symptoms of the problem. The service shall be taken as accepted if he does not make a declaration within this period of time or makes use of the service without complaint. Insignificant defects are no justification for refusing to give an acceptance. The production use or production commissioning of (sub-) services by the Customer shall be regarded in all cases as an acceptance of the relevant service that being used in production.
The Customer is required to notify the Contractor directly of any defects that are found and to give a detailed description of the problems and any information that is useful to helping to correct the problem. To this end the Customer is required to examine all deliveries and services from the Contractor immediately after they have been supplied by the Contractor to the extent that this is normal according to proper business routines, and if a defect is found, to notify the Contractor of this immediately. If the Customer fails to make this notification, then the delivery or service shall be regarded as accepted unless it involves a defect that could not have been found in the course of the investigation. If such a defect turns up later, then it must notified immediately after it has been discovered. Otherwise the delivery or service shall be regarded as having been accepted even in consideration of this defect. Sending in this notification in good time shall be sufficient to preserve the rights of the Customer. If the Contractor has fraudulently concealed the defect then he cannot make use of the above clauses 2 to 5.
- The Contractor shall give a warranty through subsequent fulfilment in the form of a subsequent delivery or by making good, at his choice. If the subsequent fulfilment has finally and definitively failed after a maximum of three attempts, as the case may be, then the Customer has the right to reduce the remuneration, to withdraw from the contract or to carry out subsequent performance by technically versed third parties at the cost of the Contractor as long as these costs are not unreasonable.
Article X shall apply regarding compensatory damages.
- The Customer shall cooperate with the troubleshooting in accordance with section IV above.
- The Contractor is required to support the Customer in the troubleshooting. If the defect is not due to deliveries and services of the Contractor, then the latter shall bill the Customer for the relevant costs that were incurred.
- The right of the Customer to make claims under warranty shall expire in one year. This also applies to claims arising from withdrawal and reduction of payments. The beginning of the period of warranty shall be based upon the relevant legal regulations.
- The periods of warranty in accordance with the above para. 4 shall not apply in the event of claims due to injury to life or limb or health, in the event of the fraudulent concealment of the defect, in the event of malice aforethought or gross negligence on the part of the Contractor, or if legal defects arise within the meaning of Article 438 para. 1 No. 1 a of the German BGB [Civil Code] and in the cases of Article 438 I No. 2 of the German BGB [Civil Code] and Article 634 a I No. 2 of the German BGB [Civil Code].
- The Contractor has unlimited liability under this contract for infringements of his obligations
- in the event of malice aforethought, gross negligence and gross organisational culpability
- in the event of damages due to injury to a person and regardless of the type of culpability
- when accepting a guarantee
- In the event of an infringement of major contractual obligations and a major infringement of obligations the Contractor shall be liable outside of the cases stated in para. 1 to an amount that is to be limited to the types of damage that is typical for this contract and could be expected (financial losses that the Contractor could have predicted as possible consequences of the infringement of the contract when concluding the contract).
- In all other cases the liability of the Contractor is to be limited to an amount of a maximum of 50% of the equivalent value of the remuneration to be paid by the Customer.
- Any liability coming under the German Product Liability Law shall remain unaffected.
- Apart from claims under warranty, contractual and extracontractual claims for compensatory damages made against the Contractor shall expire after one year. This shall not apply in the case of claims due to an injury to life, limb or health, in the event of malice aforethought or gross negligence or for an instance of liability under the German Product Liability Law.
XI. Retention of ownership
- The objects of the contract that are supplied by the Contractor shall remain as the property of the Contractor up until payment in full of all claims arising from the business connection between the Contractor and the Customer. This retention of ownership shall also apply in the case of payment by notes or bills of exchange.
- The Customer is not entitled to sell or dispose of the items without the approval of the Contractor until payment has been made in full,; he likewise may not pledge the items as collateral or transfer them by way of security.
- In the event of the joining of the item being retained with other items that do not belong to the Contractor (installation) then the Contractor shall have a resulting joint ownership portion in the new item in relation to the contract value of the retained item at the value of the other items at the time of the joining. If the Customer purchases sole ownership to the new item, then the partners to this contract already agree that the Customer shall grant to the Contractor joint ownership of the new item in relation to the contract value of the retained item at the value of the other items. The Customer is required to make available at any time to the Contractor at his request the required documents to determine the joint ownership portion of the Contractor. It is hereby agreed that the items that are part of the joint property of the Contractor shall be kept in custody for the Contractor at no charge by the Customer.
- In the case of payments by cheque the right of retention and security interest of the Contractor shall remain unaffected and shall remain in place until the liability of the Contractor has been ended by the cashing of the cheque.
- In the events of actions by the Customer that are contrary to this contract, and in particular in the event of delayed payment of the liabilities arising out of this business connection and also if the Contractor suffers a financial collapse, stops his payments, initiates insolvency proceedings or requests his creditors to make an out of court settlement, then the Contractor can without affecting the other rights of the Contractor withdraw from the contract after setting a reasonable period of grace and demand the return of the item.
- The coverage limit is agreed to be set at 120%. The Contractor is required to release the sureties that are due to the Contractor as soon as the surrender value of the sureties exceeds the value of the secured liabilities by more than 20%. However, the right to retention of title by the Contractor to an item that was supplied under this contract shall remain in force until the claim for remuneration of the Contractor for the delivery of this item has been completely fulfilled.
XII. Offsetting, right of retention and assignment
- The offsetting of any liabilities or claims by the Customer is hereby excluded unless they are undisputed or have the force of law behind them.
- The exercising of a right to retention by the Customer that is not based on a right arising out of this contractual relationship is hereby excluded.
- The Customer cannot assign his liabilities or claims to third parties. The ruling under Article 354a of the German HGB [Commercial Code] shall not be affected.
XIII. Data protection and data security
- The Contractor shall comply with the applicable valid legal stipulations concerning data protection and shall obligate those persons working for him in connection with this contract to data secrecy in accordance with Article 5 of the German Bundesdatenschutzgesetz [Federal Data Protection Law] if they have not already been obligated correspondingly in general.
- The Contractor shall process and/or use the personal data of the Customer solely within the scope of the contractual agreement and the special individual instructions of the Customer. The Contractor shall not use the data that has been handed over for processing for any other purposes and shall not keep it for longer than specified by the Customer or for longer than the legally stipulated periods. Personal data will not be handed on to unauthorized third parties.
- The Contractor undertakes to take the technical and organizational measures that are required in compliance with Article 9 of the German Bundesdatenschutzgesetz [Federal Data Protection Law] and the annex to Article 9 of the German Bundesdatenschutzgesetz.
XIV. Place of fulfilment, court of law and applicable law
- The place of fulfilment for all commitments arising out of this contact and in particular relating to payment of the purchase price shall be D-74074 Heilbronn.
- If the Customer is a merchant, a juridical person or a legal entity under public law or does not have a general place of jurisdiction within Germany, then the sole place of jurisdiction to settle all disputes arising from and in connection with this contract shall be D-74074 Heilbronn. The Contractor is nonetheless entitled to take legal action at the place of the head office of the Customer.
- The law of the Federal Republic of Germany shall apply exclusively. The Convention on the International Sale of Goods shall not apply.
As of January 2015
KWP INSIDE HR GmbH
Telefon: +49 7131 7499-0
Telefax: +49 7131 7499-1050
Head office Heilbronn
Managing director: Kai Göttmann
Court of registration: Amtsgericht [regional court] Stuttgart, HRB 105018
HR. Simple. Secure.