1.1 These GTC apply to all consulting and software implementation services of avasis GmbH as well as to the delivery of third-party software.
1.2 The delivery and use of third-party software are subject to separate general terms and conditions and license provisions issued by the respective software manufacturer, if agreed upon, which may contain provisions deviating from and taking precedence over these GTC, in particular with regard to warranty and usage rights as well as liability.
1.3 General terms and conditions of the customer shall not form the basis of the contract.
2 Consulting and IT services
2.1 avasis GmbH provides in particular services with respect to third-party software such as process consulting and data transfer, installation, setup, customer-specific adaptations, training and support services (non-exhaustive list).
2.2 All prices and services of avasis GmbH are indicative and non-binding. A binding contractual relationship will only be established with the contents and prices pursuant to the written order confirmation sent by avasis GmbH.
2.3 If the scope of services of avasis GmbH changes due to technical and/or legal changes, avasis GmbH reserves the right to adjust services and prices.
2.4 Dates and deadlines are always approximate values and not binding commitments. If avasis GmbH is waiting for the customer to cooperate or provide information, or is prevented from rendering its services due to force majeure, official orders, or other circumstances beyond its control, execution deadlines shall be extended accordingly.
2.5 Support services, data corrections, data changes, data migrations and other IT services are not performance-related.
2.6. avasis GmbH is entitled to have the contractually agreed services rendered in whole or in part by third parties.
3 Duties and collaboration of the customer
3.1 The customer is obligated to provide avasis GmbH with the necessary network and system access and, if applicable, appropriate premises for the performance of the contractual services free of charge.
3.2 The customer shall name one or more contact persons to avasis GmbH, who shall provide the information required for the performance of the contract free of charge, who shall be available for questions and further information, and who shall be authorized to make or immediately bring about necessary decisions autonomously.
4 Premature termination of the contract
4.1 If the contractual relationship is terminated prematurely for reasons that are not within the responsibility of avasis GmbH, avasis GmbH shall be entitled to demand cancellation fees from the customer without proof in the amount of 20% of the contractually agreed net remuneration plus the statutory VAT for the contractually agreed but not yet performed work services. The claims for remuneration for services already rendered shall remain unaffected.
4.2 The provision in clause 4.1 shall also apply in particular in the event of termination by the customer pursuant to § 649 of the German Civil Code (BGB).
5 Copyright and rights of use
5.1 avasis GmbH reserves the copyright to all work and service results created by it. The copyright extends in particular to all illustrations, drawings, diagrams, calculations, and other documents prepared by avasis GmbH.
5.2 The customer shall receive an unlimited right of use for all work and performance results prepared by avasis GmbH within the scope of the respective individual order. However, the right of use shall be limited exclusively to the use for the customer’s own purposes.
5.3 Any form of making it publicly available, transferring it to third parties, or any other form of exploitation of the copyrighted works of avasis GmbH listed under item 5.1 as well as the rights of use existing therein is expressly prohibited and requires the express prior consent of avasis GmbH.
5.4 The customer’s rights of use and exploitation for software products after commissioning or use of the same shall be exclusively and conclusively regulated by the
separate software license agreement with the manufacturer.
6 Support services
6.1 If provision of support services has been agreed between the customer and avasis GmbH, the customer is required to consult the relevant documentation first before making a support request.
6.2 Support services will only be provided after the start of productive operation.
6.3 The customer has the option to submit an error message, query, or request for improvement via avasis’ own ticket system. In addition, avasis GmbH offers hotline/telephone support in German and English during office hours between 08:00 AM – 11:45 AM and between 01:30 PM – 05:00 PM.
7 Sale of software products
7.1 The ordered software products can only be shipped to one address in Germany.
7.2 Delivery of the goods is at the expense and risk of the customer, even if partial deliveries are made.
7.3 avasis GmbH is entitled to charge a processing fee if a data carrier or product-accompanying documents (CD-ROM, diskette, manual, etc.) are requested again and if goods are exchanged/returned.
7.4 The customer is responsible for proper installation, commissioning and maintenance of the software delivered by avasis GmbH; provisions in software license agreements apply additionally.
8 Retention of title
8.1 The delivered goods remain the property of avasis GmbH until all claims arising from the contractual relationship have been paid in full.
8.2 If the customer is in default of payment of the purchase price, avasis GmbH shall be entitled to take back the delivered goods after a prior reminder and the customer shall be obligated to return the goods.
9 Duty to inspect and give notice of defects
9.1 The customer has a duty to inspect and give notice of defects with respect to delivered software or software parts pursuant to § 377 of the German Commercial Code (HGB).
9.2 Any notification of defects must be made in writing and include a detailed description of the defect.
10.1 Individual software shall be deemed accepted if the customer has not sent a written notification of defects to avasis GmbH within a period of 14 days after installation or delivery of the programs and program parts.
10.2 For installation services, the customer must test the installed software without delay. If the software functions as outlined in the contract without any major defects, it is deemed to have been accepted by the customer.
11.1 avasis GmbH does not make any promises of compatibility, in particular due to the complexity and wide range of possible applications of software products. The customer is responsible for checking the compatibility of software products before purchasing them.
11.2 The warranty and liability provisions for software products after commissioning or use are exclusively and conclusively regulated by the applicable software license agreement.
11.3 If defects occur in the IT services provided by avasis GmbH, the customer must immediately, but no later than 2 weeks after the customer has become aware of the defect, notify avasis GmbH in writing and with a specific description of the defects.
11.4 avasis GmbH is obligated to remedy duly notified defects within a reasonable period of time.
11.5 The customer is obligated to assist avasis GmbH in remedying the defect to the extent necessary. In particular, avasis GmbH must be provided with all data and information necessary for the elimination of defects. Furthermore, avasis GmbH shall be granted access/access to the IT environment and the affected programs or program parts, if the situation requires it.
11.6 If the removal of defects fails or if further attempts to remove the defect are no longer reasonable for the customer, the customer may demand an appropriate reduction of the remuneration.
11.7 Warranty rights are excluded as soon as the customer modifies or interferes with the work performed by avasis GmbH, unless the customer proves that such modification or interference is not the cause of the defect.
11.8 The customer is not entitled to assign his claims against avasis GmbH or to transfer rights and/or obligations from contracts concluded with avasis GmbH to third parties in whole or in part without the consent of avasis GmbH. This also applies in particular to warranty claims.
12. Remuneration and terms of payment (consulting and IT services)
12.1 Services will be invoiced to the customer on a monthly basis, reflecting the time spent at the hourly or daily rates agreed in the respective individual order/order confirmation. Unless otherwise agreed in writing in the individual order, the prices are exclusive of all applicable taxes and duties and exclusive of travel costs and allowable expenses.
12.2 Travel costs and allowable expenses are not included in the agreed hourly rates. The following rates apply:
• travel time: €90.00/h
▪ Driving expenses, car: €0.45/Km
▪ Railway travel expenses: Ticket price for 1st class
▪ Flight expenses: Ticket price for Economy (Europe)
Ticket price for Business (Intercontinental)
All other expenses (restaurant, hotel, cab, etc.) will be invoiced based on receipts.
12.3 For expressly ordered work outside normal working hours (Monday to Friday from 8 AM to 6 PM) avasis GmbH may charge a surcharge of 50%, on Sundays and public holidays 100%.
12.4 Payments are due 20 days after invoicing and without any deduction. If this payment deadline is not observed, the customer will be in default without further reminders.
12.5 In case of default, the customer will owe interest at the statutory default interest rate applicable at the time.
13. Remuneration and terms of payment (sale of software products)
13.1 All prices published by avasis GmbH are list prices that are subject to change without notice. They are in Euro, exclusive of VAT, unpacked and carriage forward ex warehouse Radolfzell. Transport and packaging costs will be charged separately.
13.2. Software licenses are invoiced upon delivery. Prices of third party suppliers are subject to change.
13.3. avasis GmbH shall not be bound by the list prices quoted at the time of the order unless expressly agreed otherwise in writing. Instead, the list prices valid at the time of dispatch of the goods shall apply.
13.4 Payment shall be due 20 days after invoicing and without any deduction. If this payment deadline is not met, the customer shall be considered in default without further reminder.
13.5 In the event of default, the customer shall owe interest in arrears at the current statutory rate.
13.6 avasis GmbH reserves the right to provide deliveries and services only after advance payment by the customer. avasis GmbH further reserves the right, without prior notice, to only supply customers after credit card payment or cash on delivery or to impose a delivery block.
14 Prohibition of set-off and assignment
14.1 The customer is not entitled to assign claims arising from this contract to third parties. § 354a of the German Commercial Code (HGB) remains unaffected.
14.2 Furthermore, the customer is not entitled to set off any claims arising from other contracts or legal relationships with avasis GmbH, unless these other claims have been accepted by avasis GmbH in writing in terms of reason and amount or have been legally established.
15.1 The liability of avasis GmbH including its vicarious agents and assistants is limited to damages caused intentionally and by gross negligence as well as to compensation for direct damages. Any liability of avasis GmbH for indirect damages, in particular loss of profit and other consequential damages, is excluded.
15.2 The aforementioned limitation of liability does not apply to damages resulting from injury to life, body, or health or in case of violation of essential contractual obligations, i.e. obligations whose fulfillment make the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely (so-called material contractual obligations). However, in case of a slightly negligent violation of essential contractual obligations, the liability of avasis GmbH is limited to damages that were typically foreseeable at the time of conclusion of the contract.
15.3 Liability of avasis GmbH is generally excluded for damages that the customer could have prevented from occurring through reasonable measures – especially software/data backup and sufficient product training and compatibility clarifications prior to purchase.
15.4 If a contracting party is prevented from fully or partially fulfilling its obligations under this contract due to force majeure, war, industrial action, or other circumstances beyond its control or which cannot be averted with reasonable technical and/or economic effort, these obligations shall be suspended until these circumstances and their consequences have been eliminated. Any liability is excluded for these cases.
16 Confidentiality and Data Protection
16.1 The contracting parties shall maintain confidentiality over all business and trade secrets of the other contracting party which have become known to them in the course of the business relationship, even after termination of the business relationship.
16.2 avasis GmbH assures to observe the provisions of the German Federal Data Protection Act and the relevant legal standards when collecting, processing and using personal data.
16.3 All personal data within the meaning of the Federal Data Protection Act, which avasis GmbH receives in connection with the conclusion and execution of a contract, will be treated strictly confidential and will only be used for contractually agreed purposes and for purposes necessary for the execution of the contract.
16.4 Customer data, which becomes accessible to avasis GmbH due to a support order, a data correction, or a client adaptation, will be treated confidentially and will only be made accessible to the employees entrusted with the order.
16.5 avasis GmbH will inform all employees who come into contact with customer data in connection with the execution of the contract in writing about the obligation to treat such data as confidential.
16.6 After the performance of the service, delivered data carriers will be returned to the customer or destroyed immediately by avasis GmbH.
17 Place of jurisdiction and applicable law
17.1 All provisions of this contractual relationship and all regulations in connection with this contractual relationship shall be governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
17.2 To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be Radolfzell.
18 Final provisions
18.1 If individual or multiple provisions of the contract are or become invalid in whole or in part, the validity of the remaining provisions or of the agreement as a whole shall not be affected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that corresponds as closely as possible to the meaning and purpose of the removed provision in the context of the remaining provisions of the contract. The same applies to potential regulation gaps in the contract.
18.2 Subsequent changes and/or additions to the contract including the contract documents, which are an integral part of the contract, must be made in writing to be effective. This shall also apply to the amendment or cancellation of this written form clause.
18.3 Verbal side agreements are not valid.
These GTC take effect on August 1, 2015.