General Terms and Conditions
§ 1 Scope
itdesign GmbH (“itdesign” or “We”) provide our services as set out in the Support and Bonus Contract between itdesign and Global Blue Holdings AB (“Client”) effective as of 1 October 2012on basis of these General Terms and Conditions and the terms and conditions set out in such Support and Bonus Contract.
Deviating terms of Client do not become part of the Support and Bonus Contract unless otherwise agreed in writing and signed by a duly authorised representative of itdesign and the Client.
§ 2 Scope of service, subject of contract, subsequent changes
1. The scope of the contractually owed services is set out in the Support and Bonus Contract (“Services”).
2. If the provision of standard software or hardware is agreed in the Support and Bonus Contract, it will be delivered according to the product specification of the relevant manufacturer.
3. Changes to the scope of the Services requested by the Client after conclusion of the Support and Bonus Contract shall be agreed in writing between us and the Client.
If no agreement can be reached regarding the requested changes, the existing Support and Bonus Contract and General Terms and Conditions will remain valid.
The Client does not have a right to order changes unilaterally.
§ 3 Licenses, documentation, IPR
1. By the purchase of standard software, the Client is granted a license for the standard software on the terms of the respective manufacturer. 2. Each party or its licensors will each retain all rights, title and interests (including all related Intellectual Property Rights) in and to all pre-existing Works developed or acquired by a party prior to the effective date of the Support and Bonus Contract (which in the case of the Client includes the software “CA Clarity PPM”) or subsequently independently developed by such party outside the scope of the Support and Bonus Contract or otherwise than for the purposes of the Support and Bonus Contract.
3. Insofar as no different intended use is agreed, we shall grant the Client and the Client Affiliates the non-exclusive, non-transferable, territorially unrestricted, perpetual, irrevocable and non-cancellable license to use any software created by us under the Support and Bonus Contract for the purposes of the Client’s or the Client Affiliates’ business activities (hereinafter “Individual Software”) in the object code upon the complete payment of the agreed amount due through and including the acceptance date.
The source code, unless it is agreed otherwise, is not subject of the transfer of right.
4. itdesign agrees that all rights, title and interests (including Intellectual Property Rights) in and to documents, designs, materials, user input, know-how, workflow information, methodologies and business models of and provided by Client to itdesign (“GB IP”) shall belong to and vest in Client or its designee. The Supplier hereby assigns (including by way of assignment of future rights) all rights, title and interests (including Intellectual Property Rights) in and to the GB IP to Client. itdesign undertakes to do any and all acts and execute any and all documents in such manner and at such location as may be required by Client to protect, perfect or enforce any of the rights granted or promised to Client by this Clause 3(4).
§ 4 Delivery period, default, Termination
1. We shall not be held accountable for delays or failure to comply with our obligations under the Support and Bonus Contract and/or these General Terms and Conditions during such period and to the extent that such delay or failure is prevented by reason of circumstances beyond our control such as war, warlike hostilities, volcanic eruptions, flood, industrial disputes, terrorist attacks, acts of god, strike or loss of or failures in the area of communications networks of other providers (“Force Majeure Events”) provided we have not caused these events.
You authorise us to postpone or interrupt our relevant obligations for the duration of the Force Majeure Event. However, if performance of a contractual obligation is prevented by a Force Majeure for a period of three months or more, Client shall be entitled to terminate the Support and Bonus Contract and these General Terms and Conditions forthwith. Client shall pay invoices of itdesign for services delivered until the force majeure event.
2. If we are in default of the Services for reasons within our responsibility, upon expiry of a reasonable grace period (as agreed between itdesign and Client), the Client may demand compensation for the damages incurred by it in addition to compensation up to the value of the partial performance which cannot be placed into operations as a result of the delayed completion/implementation of the Services.
3. The Client may only terminate the Support and Bonus Contract to the extent provided by law to the extent we are responsible for a delay in performance.
4. Notwithstanding anything in the Support and Bonus Contract or these General Terms and Conditions, the Support and Bonus Contract and these General Terms and Conditions may be terminated:
(i) by Client forthwith on giving notice in writing to itdesign if itdesign commits any material breach of any term of the Support and Bonus Contract or these General Terms and Conditions, and in the case of a breach capable of being remedied, shall have failed within thirty (30) days after the receipt of a request in writing from Client to do so; or
(ii) by either party forthwith should the other party during the term of this Agreement stop its payments, enter into liquidation, make a composition or arrangement with its creditors, have a receiver or manager appointed for its assets, undertaking or part thereof, be declared bankrupt, otherwise become insolvent or if an order is made or a resolution is passed for the winding-up or judicial management of such Party, shall cease or threaten to cease to carry on business.
On termination or expiry of this Agreement for any reason whatsoever, itdesign shall immediately return to the Client all copies of any information and data supplied by Client for the purposes of the Support and Bonus Contract (including materials containing Confidential Information of Client and shall if requested by Client, certify to Client that no copies thereof have been retained.
Any expiry or termination of the Support and Bonus Contract and/or these General Terms and Conditions shall not affect any rights or liabilities of any party nor shall it affect the coming into force of or continuation of any provision in the Support and Bonus Contract and/or these General Terms and Conditions which is expressly or by implication intended to come into force on or after such expiration or termination.
§ 5 Acceptance, defect classes
1. Our Services are subject to acceptance, insofar as it is agreed in the Support and Bonus Contract. Partial acceptances may be agreed for separable partial services.
2. Unless it agreed otherwise, defects of any software or customisations or enhancements provided by us are divided into the following three classes:
2.1 Class 1 defects
A defect preventing Client’s operations is present if the intended/economically appropriate use of the Individual Software is not possible to the effect that project continuation or acceptance of the pilot application is not or not properly assured for the production operations. This is the case if a central function is not executed or only in such faulty way that the intended effect cannot also be achieved by any other method proposed by us.
2.2 Class 2 Defects
A defect impeding Client’s operations is present if the intended/economically appropriate use of the object of performance of the Services is restricted or impeded, however if it is not affected to the extent that project continuation or acceptance of the pilot application is not assured or the test procedures cannot be implemented in spite of it.
2.3 Class 3 defects
Minor defects are present if the intended/economically appropriate use of the object of performance of the Services is not or only insignificantly restricted. Minor defects also include errors due to which texts are presented in the wrong format or errors in the input functions where the intended effect can also be achieved in another way.
We determine the classification of any defects occurring with appropriate consideration of the Client’s opinion.
3. We will inform the Client in writing or in text form of the completion and readiness for acceptance of our service.
Unless it is agreed otherwise, the Client has the right to subject our services to a function test within 14 workdays after the receipt of the completion notification (hereinafter “Function Test Period”).
4. If defects of Class 1 are found, the Client may terminate the function test.
The Client shall inform us of defects discovered during the function test after completion or termination of the function test, and shall provide us an appropriate period for to remedy defects in the event of such a termination.
After defects have been remedied, we will again inform the Client in writing or text form of the completion and readiness for acceptance of our service.
The Client has the right to a renewed function test; the time frame agreed for this purpose according to § 5 no. 3 will start anew.
5. The Client shall declare the acceptance of our services within the Function Test Period, if these services merely have defects of defect classes 2 or 3.
These defects shall be recorded in the acceptance declaration and be remedied by us in the scope of our liability for material defects according to § 6.
6. Acceptance shall be conducted in a formal manner and in a manner agreed between the parties; the acceptance protocol shall be signed by both parties to the contract.
However, acceptance may not be refused unreasonably by the Client. It is therefore equivalent of acceptance if the Client does not accept our services within an appropriate period set by us and agreed by Client, although the Client is obligated to do so.
Insofar as defects are recorded in the acceptance protocol, the acceptance date shall be deemed to be the first day on which the last and merely insignificant defect was remedied.
§ 6 Liability for defects
1. The limitation period for defect claims is generally 12 months.
The period starts upon the delivery of the contract objects or upon their acceptance in the case of creation or adaptation of software.
The same limitation periods apply for defects to partly accepted services or (partial) deliveries, starting as of the date of the partial acceptance or partial delivery.
2. Claims for defects do not apply to new hardware or software added at the Client’s site after the close of Contract and which has been procured or created by the Client for the fulfilment of its performance in the scope of cooperation or to contract objects, which are modified, repaired or subjected to attempted subsequent fulfilment by the Client or a third party without our consent.
This shall not apply if the Client proves that these measures were not the cause of the defect.
3. We will remedy defects of which we are provided notice within the limitation period by way of repair or new delivery at our option.
We shall firstly always be given the opportunity to cure within an appropriate period agreed between itdesign and Client.
If a software defect is involved, for standard software we may provide a program version which remedies the defect prior to transfer or a work-around solution in case of Individual Software to the extent that this is reasonable for the Client.
A new software version shall be accepted by the Client, unless this leads to adaptation or adjustment problems that are inappropriate for its requirements and business operations or incompatible with Client’s systems or software which are to be used with the Individual Software.
4. If the attempt at cure is unsuccessful, the Client may, regardless of any damage compensation claims in the context of § 7 of these General Terms and Conditions, withdraw fully or partly from this contract or reduce the remuneration.
Failure of cure shall only be assumed if we are not successful even after a second attempt at cure, despite an appropriate grace period having been set to remedy the defect, and in the case of the Individual Software if we were not successful to rework it in such a way that a use essentially in accordance with the contract is possible for the Client.
5. Furthermore § 7 of these General Terms and Conditions is applicable to damage compensation claims.
§ 7 Liability
1. We have unlimited liability respectively for damages which cannot be excluded or restricted by applicable law:
- from the injury to life, body or health or death caused by an intentional or negligent breach of duty or in other way by an intentional or negligent act by us or one of our legal representatives or agents.
- due to the absence or loss of an assured feature or non-fulfilment of a guarantee;
- which are caused by fraud, an intentional or grossly negligent breach of duty or in other way by fraud, an intentional or grossly negligent act by us or one of our legal representatives or agents.
2. In the case of compensation for foreseeable damage that is typical for the Support and Bonus Contract, our liability is limited to such damage as was caused by a breach or violation of material contractual duties by us or one of our legal representatives or agents.
Material contractual duties are such the fulfilment of which make the proper implementation of the contract possible at all and on the fulfilment of which the Client is entitled to rely.
3. Our liability for loss of data (if applicable) caused by negligence shall only extend to the damage that would have also arisen had there been proper and regular data backup by the Client as is appropriate considering the significance of the data; this limitation shall not apply if the data backup was impeded or impossible for reasons within our responsibility.
4. The aforestated provisions shall also apply analogously to our liability with regard to the compensation of futile expenditures.
5. Our liability under the Product Liability Act shall remain unaffected by these General Terms and Conditions.
Itdesign hereby warrants that
(iii) the Services and Client’s use of the Services do not infringe any Intellectual Property Rights of any third party;
(iv) it shall comply with all laws applicable to or necessary for the performance of its obligations under the Support and Bonus Agreement;
(v) it shall provide the Services in accordance with the service levels set out in the Support and Bonus Contract and these General Terms and Conditions, diligence and in a workmanlike and professional manner and at all times be consistent with best industry and professional standards and practices used in operations involving the performance of services similar to the Services;
(vi) all materials supplied in connection with the Services shall be fit for the purposes for which it is intended to be used.
§ 8 Reservation of title and rights and Personnel
1. We reserve the title and rights to be granted until the complete payment of the owed remuneration.
2. We shall as of the effective date of the Support and Bonus Contract and throughout the term of the Support and Bonus Contract and these General Terms and Conditions, assign and maintain sufficient number of employees and personnel to provide the Services and fulfil all other obligations under the Support and Bonus Contract and/or these General Terms and Conditions. We shall ensure that all employee and personnel used or deployed to provide the Services shall possess suitable and sufficient competence, expertise and qualifications and are trained in providing the respective part(s) of the Services or other obligations under the Support and Bonus Contract and/or these General Terms and Conditions which they are engaged or deployed by us to perform or fulfil.
Itdesign will appoint a suitably experienced and competent individual to act as the project manager (“Project Manager”) for the fulfilment of its obligations under the Support and Bonus Contract and these General Terms and Conditions. The Project Manager has day-to-day authority for undertaking to ensure customer satisfaction and is a single point of contact for Client in all matters relating to the Services, unless Client receives prior written notice to the contrary.
We shall have the right, power, authority and duty to supervise and direct the activities of our employees and personnel and compensate them for work performed pursuant to the Support and Bonus Contract and these General Terms and Conditions. Nothing in the Support and Bonus Contract and/or these General Terms and Conditions is to be construed to constitute or deem our employees and personnal as the employees or agent of Client.
§ 9 Secrecy, data protection
1. Notwithstanding anything to the contrary in the Support and Bonus Contract, the non-disclosure agreement entered into between itdesign and Client on August 20th 2012 (“NDA“)shall form an integral part of the Support and Bonus Contract and these General Terms and Conditions and apply to the fullest extent in respect of any Confidential Information (as defined in the NDA) disclosed between the Parties under or in connection with this Agreement and the “Purpose” under such NDA shall be extended such that each Party may use any Confidential Information of the disclosing Party for the purpose of performing and/or fulfilling its obligations under the Support and Bonus Contract and these General Terms and Conditions
2. The Client is hereby informed that we collect, process and use personal data, in particular the Client’s address, its name, the names of the persons responsible for the contract, exclusively for the Services resulting from the Support and Bonus Contract as well as from any other services ordered by the Client and we shall comply with the European Data Protection Directive 95/46/EC and any implementing legislation or other data protection laws which applies to the processing of such data;. For the purposes of this clause 9(2), the terms “process” and “personal data” shall have the meanings given to them in the European Data Protection Directive 95/46/EC (as amended from time to time or new directive replacing such directive).
§ 10 General provisions, place of jurisdiction, applicable law
1. All notices given or made pursuant to the Support and Bonus Contract or these General Terms and Conditions shall be in writing in the English language and shall be delivered by hand, ordinary mail or courier to the other party at the address set out on the cover page of the Support and Bonus Contract. Notices delivered by hand or courier shall be deemed received at the time of delivery. Notices, which have been sent by ordinary mail, shall be deemed received on the fifth (5th) working day of the recipient following posting.
2. The Support and Bonus Contract, these General Terms and Conditions and the NDA constitute the entire agreement between itdesign and the Client relating to the subject matter herof. All agreements, side agreements and assurances as well as subsequent changes to the Support and Bonus Contract and these General Terms and Conditions shall be in writing and signed by a duly authorised representative of each Party.
This also applies to any agreement that is to change this requirement of the written form.
No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Party against whom the waiver or consent is asserted.
3. any dispute arising under or in connection with the Support and Bonus Contract and/or these Terms and Conditions including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Tübingen in accordance with the LCIA Rules for the time being in force which Rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of three (3) arbitrator(s). The language of the arbitration shall be English. The provisions of this Clause 10(3) and Clause 10(4) shall continue in force, notwithstanding the termination of the Support and Bonus Contract and/or these General Terms and Conditions, for any reason.
4. The laws of the Federal Republic of Germany govern this agreement subject to the exclusion of provisions which refer to another systems of laws and subject to the exclusion of the United Nations Convention on the International Sales of Goods (CISG).
5. Should individual provisions of this contract or these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected thereby. In such a case, the parties shall agree on a provision that is the best equivalent of and comes as close as possible to the meaning and purpose of the invalid provision.
6. itdesign shall not assign or transfer any right or obligation under the Support and Bonus Contract and these General Terms and Conditions without Client’s prior written consent.
7. Nothing in the Support and Bonus Contract and these General Terms and Conditions shall constitute or shall be deemed to constitute a partnership or shall be deemed to constitute any party as the agent of the other party for any purpose whatsoever.
§ 11 Definitions
For the purposes of these General Terms and Conditions:
“Client Affiliates” means any legal entity, directly or indirectly, owned and/or controlled by Client and any legal entity, directly or indirectly owned and/or controlled by Global Blue Holding B.V., which is the ultimate holding company of the Global Blue group of companies
“Intellectual Property Rights” means patents, trademarks, service marks, trade or business names, domain names, registered designs, layout design rights, registered designs, semiconductor topography rights, database rights, copyrights, rights in computer software, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation and other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or unregistered, and all rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriate or violation of any of the foregoing rights.