General Terms and Conditions

This is a courtesy translation. Only the German version is legally binding.

General Terms and Conditions for IT Services and Products of ITADA Enterprise Solutions GmbH

1. Scope of the General Terms and Conditions

1.1. These are the General Terms and Conditions of ITADA Enterprise Solutions GmbH (hereinafter referred to as "ITADA") relating to the IT services and products offered by ITADA. Their subject matter is the regulation of the legal relationship between ITADA and the customer with regard to the IT services and products commissioned.
1.2. ITADA's offering is directed exclusively at customers who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) or legal entities, traders, self-employed persons or freelancers.
1.3. These General Terms and Conditions apply exclusively to the contractual relationship. Conflicting or additional terms and conditions of the customer shall not become part of the contract. They shall have no effect even if ITADA has not objected to them in an individual case.
1.4. These General Terms and Conditions are supplemented by the product description valid at the time. These documents are available at any time at www.ITADA.de, where the customer can download, save and print them.
1.5. Individual agreements between ITADA and the customer take precedence over these General Terms and Conditions to the extent of the respective individually agreed contractual term (cf. § 305b BGB) and are then supplemented by these General Terms and Conditions. ITADA's offer or order documents and invoice are deemed to be individual agreements that take precedence over these General Terms and Conditions. Individual agreements require text form in order to be effective.

2. Amendment of the General Terms and Conditions

2.1. ITADA is entitled to amend the General Terms and Conditions after conclusion of the contract, provided that this does not affect essential provisions of the contractual relationship and that this is necessary to adapt to developments that were not foreseeable at the time the contract was concluded and the disregard of which would more than insignificantly impair the balance of the contractual relationship. Essential provisions are, in particular, those concerning the nature and scope of the contractually agreed services, the term and termination. Furthermore, adjustments or additions may be made insofar as this is necessary to eliminate gaps in the provisions that have arisen after conclusion of the contract. This may be the case in particular if case law changes and one or more clauses of these General Terms and Conditions are affected.
2.2. Amendments to these General Terms and Conditions shall be notified to the customer in text form in good time before the planned date on which they are to take effect. The client has the right to object to the notified amendments. If the client does not object to the amendments in text form within a reasonable period for declaration, set by ITADA in the individual case, after receipt of the notice of amendment, the amendments shall take effect on the planned date and become part of the contract. The client shall be specifically informed of this consequence in the notice of amendment. If the client objects in good time, the previous terms shall remain valid. If the client objects to the amended General Terms and Conditions for ITADA, ITADA shall have a special right of termination with one month's notice. ITADA must exercise this right of termination in text form within 4 weeks of the customer's objection.

3. Changes to the IT Services and Products, and to the Price

3.1. ITADA is entitled to increase the agreed prices after conclusion of the contract to the extent that price increases are made by third parties from whom ITADA obtains upstream services necessary for the performance of the contract. The agreed prices shall also increase to the extent caused by an increase in value added tax or mandatory statutory charges.
3.2. Changes to ITADA or the functionalities contained therein and its price shall be notified to the customer in text form in good time before they take effect. The client has the right to object to the notified changes. If the client does not object to the changes in text form within four weeks of receipt of the notice of change, the changes shall take effect on the planned date and become part of the contract. The client shall be specifically informed of this consequence in the notice of change. If the client objects to the change to ITADA or its functionalities or its price, ITADA shall be entitled to terminate the contract with one month's notice. ITADA must exercise this right of termination within 4 weeks of the customer's objection.

4. Conclusion of Contract

4.1. All offers made by ITADA are, in principle, subject to change. An offer from ITADA is binding only if it is expressly designated as such in written or text form. Unless otherwise stated, the offer with the calculated prices and services is binding on ITADA for a period of four weeks.
4.2. On the basis of ITADA's non-binding offer, the customer places an order, binding on the customer, for the service offered by ITADA.
4.3. As a rule, order confirmations are not issued. However, if the order is concluded by telephone, orally or online, a letter of confirmation in text form from ITADA is required. All other oral agreements likewise require confirmation by ITADA in text form.
4.4. The contract is concluded implicitly upon performance of the service by ITADA or upon receipt of an order confirmation in text form.
4.5. By placing the order, the client warrants that it is an entrepreneur within the meaning of § 14 BGB, a legal entity, a trader, a self-employed person or a freelancer.
4.6. ITADA is entitled at any time, at its own discretion, to reject orders or to withdraw from the contract without the customer being entitled to any claims for damages as a result, if it transpires that the content or form of the service owed infringes amended statutory provisions.
4.7. ITADA furthermore has a right of withdrawal in the event of justified doubts as to the customer's creditworthiness.

5. Subject Matter of the Contract

5.1. The order documents, in particular the offer and any order confirmation issued by ITADA, as well as these General Terms and Conditions, form part of the contract. Individual agreements require text form in order to be effective.
5.2. The subject matter of the contract is the IT services and products of ITADA, as specified in more detail in the respective order documents.
5.3. The client specifies the task. On this basis, the performance of the task is planned jointly.
5.4. It is solely for ITADA to decide which employees are deployed for the specific performance of the task. Its own employees and freelancers as well as other companies may be deployed in fulfilling the order. Irrespective of this, ITADA reserves the right to replace employees at any time.
5.5. The employees deployed to perform the task are subject exclusively to ITADA's instructions, irrespective of whether the service is provided directly at the client's premises. The employees are not integrated into the client's organisation. The client may submit suggestions and tasks only to ITADA's project manager or account manager, but not directly to the individual employees.
5.6. The dates specified in the implementation and project plans are generally estimated times, unless the agreements made between the parties show that dates have been fixed as binding.
5.7. If ITADA is dependent on the cooperation of or information from the client and the service is delayed due to a lack of / late cooperation, or if the provision of the service is hindered as a result of force majeure, e.g. war, riot, natural disasters, or due to similar events such as strikes, lockouts, intervention by public authorities or other circumstances for which ITADA is not responsible, agreed deadlines shall be extended by a reasonable period.
5.8. In such a case, ITADA shall inform the client of the circumstances of the hindrance and, once they have ended, shall agree a new date for the provision of the service without undue delay.
5.9. During the term of the contract and the associated use of ITADA systems, the client may propose changes and adjustments at any time.
5.10. ITADA shall respond in writing to the customer's requests for changes and / or adjustments by means of a statement regarding their feasibility and by preparing a corresponding offer.
5.11. Upon acceptance of the offer by the client, a contract with content amended in accordance with the offer is concluded between the client and ITADA. The remuneration for this is based on ITADA's price list current at that time.
5.12. Until the amended contract has been concluded, all other work shall continue to be carried out under the existing contracts. The client is, however, entitled to demand the complete or partial suspension of any work. Any resulting delay in performance or in meeting deadlines shall, however, be borne by the client.

6. Acceptance

6.1. If an order placed by the client consists of several individual works that can be used independently of one another, the client must accept each individual work separately and promptly.
6.2. If commercially available products are used as a basis or tool for the realisation of an order, functional limitations and errors caused by these products do not constitute grounds for refusing acceptance.
6.3. The client's concepts and functional specifications require written acceptance by ITADA. ITADA's concepts and functional specifications must be accepted by the client before realisation. A written order based on the content of these documents constitutes acceptance free of defects and errors.
6.4. The client must examine the result within 10 working days and notify any defects or declare acceptance. The service is deemed to have been accepted if the client neither gives notice of defects nor declares acceptance within this period. Insignificant defects do not entitle the client to refuse acceptance.
6.5. Notices of defects attributable to commercially available products shall be reported by ITADA to the supplier for rectification, insofar as rectification is necessary for ITADA's provision of the service.

7. (Cooperation) Obligations of the Customer

7.1. The customer is aware that the provision of the services included in ITADA and their quality may depend decisively on the customer's cooperation. For this reason, the client is obliged to support ITADA to the best of its ability in providing the agreed services, to create the conditions within its operational and risk sphere that are necessary for the proper execution of the order and, furthermore, to fulfil the obligations imposed on it under this clause 8 in good time and in full.
7.2. These obligations include in particular, but not exclusively, the following:
7.2.1. Contract data
The client is obliged to provide all contract data requested upon conclusion of the contract completely and truthfully at the time the contract is concluded. In addition, the client must inform ITADA without undue delay in text form of all changes to the contract data and of all material circumstances required for the performance of the contract.
7.2.2. Legal matters
Before placing the order, the client must, on its own initiative, clarify all legal matters, in particular questions of professional law, competition law, trademark law, copyright law, personality rights, data protection law and the law relating to names.
7.2.3. Safeguarding of access data provided
The client is obliged to treat access data provided to it as strictly confidential and to protect them against disclosure to unauthorised persons to the extent necessary. It shall inform ITADA without undue delay as soon as it becomes aware that these access data have become known to unauthorised third parties. The client is not permitted to make the access data and/or the services based on the access available to third parties for use without prior agreement with ITADA.
7.2.4. Other cooperation obligations
For the use of the ITADA systems, the client must provide the appropriate working environment (workstations, network) in accordance with ITADA's specifications.

The client must cooperate free of charge in fulfilling the order, in particular in implementations and the execution of works, for example by providing employees, workrooms, hardware and software, data and telecommunications facilities. It shall grant ITADA access to hardware and software both directly and by means of remote data monitoring. It shall answer questions, examine results and test systems provided by ITADA without undue delay. Any errors or defects must be reported to ITADA without undue delay upon becoming aware of them. The client is obliged to use the services and systems provided by ITADA in accordance with the applicable statutory provisions, any official orders and the contractual agreements made with ITADA.
7.2.5. Legal consequences of a breach of (cooperation) obligations
Attention is drawn to the customer's indemnification obligation and liability in the event that claims are asserted against ITADA by third parties as a result of a breach of the (cooperation) obligations pursuant to clause 10 of these General Terms and Conditions for ITADA. In addition, ITADA shall not be in default with the fulfilment of its performance obligations insofar as a late or omitted fulfilment of an information, cooperation or other obligation of the customer is (partly) the cause of this. In the event of delays in the provision of individual contractual services due to omitted or late cooperation by the customer, ITADA's claim to remuneration and its due date shall remain unaffected.

8. Grant of Rights

8.1. ITADA is the sole owner and holder of the service, the software, and all graphics, logos, trademarks and names used by ITADA in connection with the products.
8.2. Furthermore, upon creation of the service, ITADA becomes the holder of all intangible property rights, in particular copyrights, in the results, e.g. in concepts, planning documents, specifications, developments, documentation, studies, inventions, user or maintenance manuals and other documentation.
8.3. The client is free to submit suggestions for improving the service to ITADA. In doing so, however, the customer confirms and acknowledges that all rights to the improvements and / or changes associated with these suggestions belong to ITADA and that ITADA is under no obligation to compensate the customer for these suggestions.
8.4. If the client acquires copyrights in the results through its cooperation, it transfers to ITADA the exclusive right, unrestricted in terms of territory, time and content, to edit, exploit, market and otherwise use these results in any conceivable manner.
8.5. If the results are eligible for protection, ITADA is entitled, at its free discretion and in its own name, to apply for the corresponding property rights in any countries, to maintain them or to abandon them at any time.

9. Rights of Use of the Customer

9.1. Upon full payment, the client shall be granted a simple right of use in the work results, limited in time to the term of the contract and limited in content to its own purposes within the planned scope, unless otherwise agreed
9.2. By granting the licence of use, ITADA grants the client a non-exclusive, non-transferable and revocable right, limited in time to the duration of the business relationship and limited in content, to use the products offered under the conditions and for the purposes described in the offer or contract.
9.3. Any other and / or further use or exploitation is excluded. In this context, ITADA warrants that it is the rights holder or licensee of all programs of third-party providers offered and that it has been granted the corresponding rights of use for all third-party products required for the service to the client.

10. Liability of the Customer and Indemnification

The client shall indemnify ITADA and ITADA's vicarious agents against all claims of third parties asserted against ITADA or ITADA's vicarious agents on the basis of a breach of any of the foregoing obligations in clause 8 and clause 9. This also includes compensation for the resulting damage, including the costs of an appropriate legal defence.

11. Warranty and Liability of ITADA

11.1. ITADA warrants that the software that is the subject of the contract will have the functions specified in the service description during the term of the contract. ITADA undertakes to carry out the work assumed with the utmost care and to the best of its ability. In this context, the client must notify ITADA immediately of program errors, necessary changes and other circumstances indicating the need for maintenance measures.
11.2. Errors reported by the client shall be rectified within an appropriate period. If rectification of the error proves impossible, ITADA shall offer a workaround.
11.3. In particular, ITADA gives no warranty for the uninterrupted availability of the service or for the quality of the services.
11.4. ITADA has no influence on the transport of data via the internet. ITADA therefore also gives no guarantee that messages sent will correctly reach the recipient.
11.5. In principle, no specific service result, let alone a specific success, is owed. If the provision of a specific service result has been expressly agreed and ITADA, for whatever reason, is unable to provide the service result owed at the agreed time, ITADA is entitled to provide the service result owed at a later date.
11.6. If the client refuses an examination of the defects notified, the assertion of further warranty claims by the client is excluded. If notified defects can no longer be reproduced after a joint examination, the notice of defects, and thus also the defect, shall be deemed to have been remedied.
11.7. The warranty is excluded for defects / damage that arise after handover to the client as a result of incorrect or careless handling by the client or its vicarious agents/representatives, their disregard of instructions from ITADA, or as a result of special external influences outside ITADA's area of responsibility.
11.8. If changes to programs or systems that have not been agreed are made by the client or by third parties, the warranty is likewise excluded for such changes and the consequences arising from them. ITADA does not warrant any characteristics.
11.9. In the event of wholly or partially defective performance for which ITADA or its partner is responsible, the client is entitled to subsequent improvement from ITADA. If the subsequent improvement has failed, the client has the right, at its option, to an appropriate reduction of the remuneration (price reduction) or to withdraw from the contract. Subsequent improvement is deemed to have failed after the second unsuccessful attempt. Further claims of the customer are excluded.
11.10. ITADA is liable in accordance with the statutory provisions for injury to life, body and health based on a culpable breach of duty by ITADA, ITADA's legal representatives, employees or vicarious agents, as well as for damage covered by liability under the German Product Liability Act (Produkthaftungsgesetz).
11.11. Unforeseeable events, such as force majeure, strikes, measures by public authorities, failures of transmission facilities or other disruptions for which ITADA is not responsible, release ITADA from its obligation to perform and from the warranty. In such a case, ITADA's liability is also excluded in full.
11.12. ITADA accepts no liability for materials, content and services of the customer (e.g. employees, workrooms, hardware and software, data and telecommunications facilities provided) that the client makes available to us for the performance of the contract or that it publishes or distributes through ITADA's components.
11.13. For other damage not covered by the preceding clauses, ITADA's liability, on whatever legal grounds, is excluded to the extent permitted by law, unless ITADA is guilty of intent or gross negligence. Furthermore, liability in the case of slight negligence is not excluded if ITADA is responsible for the breach of an obligation whose fulfilment makes the proper performance of the contract possible in the first place (a so-called cardinal obligation). In the latter case, liability is limited to the damage that is foreseeable and typical for the contract, but to no more than the sum of the annual order value.
11.14. All claims of the customer against ITADA become time-barred within one year from the statutory commencement of the limitation period. This does not apply to the limitation of claims based on an intentional or grossly negligent breach of duty.
11.15. Insofar as ITADA's liability is limited or excluded, this also applies to its service providers, legal representatives, employees or other vicarious agents.

12. Payment / Set-off / Retention

12.1. Remuneration is, in principle, based on ITADA's price list valid at the time, unless otherwise stipulated in the contract. Changes to the price list are reserved.
12.2. Except in the case of exemption from value added tax, all prices are exclusive of the statutory value added tax applicable at the time. ITADA is entitled to invoice partial services, provided that this is reasonable for the customer. Payments must be made within the payment term stated on the invoice / partial invoice. No cash discount is granted. From 30 days after the due date, ITADA may charge interest at the statutory default interest rate applicable at the time.
12.3. As a rule, services are invoiced by ITADA after they have been provided. Services are invoiced once a month. Exceptions require a separate agreement. ITADA may demand instalment payments if the duration of works and services exceeds 1 month. The amount of the instalment is based on the degree of completion.
12.4. Where services are invoiced on a time-and-materials basis, this is done on presentation of ITADA's customary activity records. Travel time, travel expenses and accommodation expenses are charged depending on the place of work of the ITADA employee.
12.5. ITADA shall pass on to the client, unchanged, any cost increases for licences and maintenance services provided and charged by third parties in the course of the performance of the services between ITADA and the client.
12.6. ITADA reserves the right to charge dunning fees for reminders issued (in non-commercial business transactions only from the 2nd reminder onwards). From 30 days after the due date at the latest, ITADA may charge interest at the statutory default interest rate applicable at the time.
12.7. In principle, order brokers, external service providers and other third parties are not authorised to accept payments on behalf of ITADA. Where ITADA notes collection or cash payment, payment in advance or cash payment must be made immediately when the order is placed. Payments made to ITADA's authorised representative will be recognised upon issue of a proper receipt.
12.8. Even during the term of the contract, ITADA is entitled, in the event of objectively justified doubts as to the customer's ability to pay, to make the further provision of services conditional on the settlement of outstanding invoice amounts.
12.9. The client is entitled to set-off and/or retention only if the counterclaims have been finally established by a court or are undisputed.
12.10. All hardware and software supplied by ITADA remains the property of ITADA until paid in full

13. Confidentiality and Data Protection

13.1. The contracting parties shall treat as confidential the trade and business secrets of the other contracting party that have become known to them in the course of the business relationship, including after the business relationship has ended.
13.2. The client may make the subject matter of the contract accessible to employees and third parties only insofar as this is necessary for exercising the right of use granted to it; otherwise, it shall keep all subject matter of the contract secret. It shall inform all persons to whom it grants access to the subject matter of the contract of ITADA's rights in the subject matter of the contract and of the obligation to maintain secrecy.
13.3. Personal data are processed only in compliance with the applicable data protection law, in particular the General Data Protection Regulation – GDPR (DSGVO) and the German Federal Data Protection Act (BDSG). The parties agree, where necessary, to conclude a data processing agreement in accordance with Art. 28 GDPR or a joint controllership agreement in accordance with Art. 26 GDPR.

14. Miscellaneous

14.1. The place of performance and place of jurisdiction for both parties is ITADA's registered office, unless the law mandatorily provides otherwise.
14.2. All legal relationships arising from the use of the services are governed by the law of the Federal Republic of Germany, excluding the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).

15. Address

ITADA Enterprise Solutions GmbH
Jahnallee 14
04109 Leipzig
Commercial register: Saxony, Amtsgericht Leipzig (Local Court of Leipzig), HRB 38081
VAT ID no.: DE336188303
Managing Director: Martin Trutt
Last updated: December 2020