Last modified: May 02, 2021
This Agreement can be updated from time to time. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://www.antegma.com/en/terms-and-conditions. The updated Agreement will be effective as of the time of posting.
Part A – General Provisions
Preamble
This Agreement provides the rules for the general cooperation between Customer and Provider.
Provider is: antegma GmbH, Emil-Riemensperger-Weg 20, 78112 St.Georgen, Germany, www.antegma.com.
§ 1 Integral Parts of the Agreement and Priority Clause
(1) The integral parts of the final Agreement are the „antegma Framework Agreement” as well as all individual agreements and annexes (hereinafter “Agreement”).
(2) General terms and conditions of business of the involved parties apart from this Agreement shall not become integral parts hereof.
§ 2 Definitions
“Contractual Software” means any software under this Agreement, including its adjustments. It also includes the respective object code and source code in all development, interim and final stages and the associated documentation, as well as all necessary materials such as analyses, requirements specifications and/or functional specifications, concepts and descriptions.
“Confidential Information” means information a prudent third party would consider as worth being protected or that is identified as confidential; it may also include information becoming known during an oral presentation or discussion. Confidential Information shall be used for the purpose of meeting the contractual duties only. The duty of confidentiality shall not apply to information of which the parties have lawful knowledge or that becomes known beyond the contractual duties without breach of any duty of confidentiality.
“Contractual Service” means all Contractual Services (e.g. Contractual Software, consulting, Support).
“Support” means Provider’s fee-based provision of services for troubleshooting, patches and the availability at the agreed Support hours in German and English language.
“System Environment” means the contractually agreed technical, local and functional-organisational environment in which the Contractual Software is made available in an operational condition.
§ 3 Duty to Cooperate
The parties agree to cooperate in a fair and close manner at any time.
§ 4 Offer, Acceptance
(1) Information on the telephone and written offers of Provider are non-binding. This shall also apply to information on Provider’s website or in general information papers.
(2) A contractual relationship shall be constituted only upon the signing of the respective agreement/order by both parties. Offers of the Provider are each an offer to the Customer for the issue of a binding offer; the acceptance of the offer and thus the formation of the contract will take effect only upon the Provider’s written confirmation of order.
§ 5 Remuneration, Prices
(1) Provider’s current price list – if any – as applicable from time to time shall apply, unless the remuneration for Contractual Services has been agreed upon individually.
(2) Necessary expenses of Provider (travelling costs, out-of-pocket expenses, supplies, shipment costs and telecommunication costs) shall be reimbursed in the amount actually incurred.
(3) All prices are net prices plus statutory value added tax as applicable from time to time.
(4) The term of payment shall be 30 days upon receipt of the invoice.
(5) Provider has the right to increase its remuneration by a maximum of 10% per calendar year.
(6) Notwithstanding the price increase provision above, Provider shall have the option to adjust prices to its cost price in a reasonable manner. This right to adjust prices shall apply particularly in case of proven increases of costs incurred for materials, production and wages, as well as the costs for third-party software, hardware or services.
(7) Provider shall notify price increases in written form not later than six weeks prior to their effective date. In case that the price adjustment should amount to more than 10% of the remuneration applicable so far, the Customer shall have a special right of termination, which it may exercise in writing with one month’s notice effective as of the end of the calendar month after the receipt of the price increase notification.
§ 6 Granting of Rights of Use to Contractual Services
1) All rights of use under copyright and other intellectual property rights or other rights existing before the issue of the respective order shall remain in the sole and exclusive possession of the respective holder as applicable from time to time. In connection with the performance of services, however, the rights necessary in each case to use the scope of services described in this Agreement shall be transferred to the other contracting party as non-exclusive right of use for the required period of time.
(2) Unless provided otherwise, the Provider shall also be entitled exclusively to all rights of use under copyright and other intellectual property rights or other rights to the Contractual Services of any type, whatsoever (including the right to apply for registration as patent, design patent or trademark), which are generated in performing Contractual Services.
(3) Provider shall grant to Customer the geographically unrestricted and – unless provided otherwise in the individual agreement – non-exclusive right to use the Contractual Services as of the time of their generation for Customer to use them as contractually agreed for the necessary period of time. Customer shall not have the right to transfer the right of use and/or to modify work results, except for the further transfer of permanently acquired software licences.
(4) Customer shall not have the right to file for registration of intellectual property rights to Contractual Services.
§ 7 Liability
(1) Provider’s liability for the culpable breach of material contractual duties shall be limited to the amount of the damage typical of the contract, i.e. such damage the occurrence of which each contracting party had to reckon with at the time of contract formation based on the circumstances known to it at that time. Based on the circumstances known to them at the time of contract formation, the contracting parties to the individual agreements shall determine the amount of the damage typical of the contract. If the contracting parties do not reach agreement on the damage typical of the contract, the damage typical of the contract shall be equivalent to 100% of the contract volume.
(2) Provider shall not be liable for the indirect consequential damages of Customer, including, but not limited to lacking economic success, damages due to interruptions of operation, and lost profit.
(3) For damages resulting from loss of data, Provider shall be liable pursuant to paragraph 1 above only in the amount of the typical recovery costs, i.e. not for damages that could have been avoided by way of Customer’s regular data backup described in § 7 (4).
(4) The aforementioned limitations of liability shall also apply mutatis mutandis to the personal liability of the employees and agents of Provider.
(5) Provider’s liability for injuries with lethal consequences or resulting in physical disability or damage to health caused by a negligent or intentional breach of duty by Provider, its legal representative or vicarious agent or for other damages caused by a grossly negligent or intentional breach of duty by Provider, its legal representative or vicarious agent, as well as for damages caused by the breach of copyrights or other third-party property rights and for claims based on the German Product Liability Act (Produkthaftungsgesetz) shall not be affected by the preceding limitations of liability.
(6) Any claims of Customer against Provider for damage compensation or refund of expenses beyond the foregoing shall be excluded even if based on competing claims founded in tort.
§ 8 Warranty
(1) Damage claims shall be inapplicable in case of an insignificant deviation from the agreed or required quality or just insignificant impairment of the fitness for use. Product descriptions shall not be deemed guarantees, unless upon separate written agreement.
(2) If Customer claims subsequent performance due to a defect, Provider has the right to opt for either subsequent improvement, replacement delivery or replacement service. If after the fruitless lapse of a first deadline Customer set two additional reasonable periods of grace for Provider again to no avail, Customer may – subject to the legal prerequisites – opt for either terminating the contract or reducing the price and claim damage compensation or refund of expenses. Subsequent performance may also be provided by way of delivery or installation of a new programme version or a workaround. If the defect does not affect the functionality or does so to a merely insignificant extent, Provider shall have the right – to the exclusion of other claims for defects – to remedy the defect by way of delivery of a new version or an update in the course of its version/update/upgrade scheduling.
(3) For Customer’s damage claims it is required that Customer complied with its duties to inspect and notify pursuant to sec. 377 HGB (German Commercial Code) in a proper and prompt manner and that Customer does not treat the Contractual Services improperly and does not use software in a defective or incompatible hardware or software environment or alter Contractual Services without authorisation.
(4) The period of limitation for defect claims is one year and starts upon the delivery of the Contractual Services to the Customer.
§ 9 IT Security
(1) In accordance with the standards applicable from time to time, the parties shall take adequate IT security precautions to protect the systems against any unauthorised third-party access. This particularly includes regular data backups.
(2) Customer is not entitled to request access to rooms, servers or other system components of Provider in principle. This shall not affect rights of access of Provider’s data protection officer upon written notification to inspect the compliance with the requirements pursuant to the applicable data protection provisions.
§ 10 Term, Termination of this Agreement
(1) Unless provided otherwise, the term of the Agreement shall commence upon the signing by both parties. The Agreement is made for an undetermined period.
(2) This Framework Agreement can be terminated in writing with three months’ notice effective by the end of the year, provided that all individual agreements between the parties have been finalised.
(3) This Agreement can be terminated by either party without notice only if there is good cause to do so. Good cause is given if the terminating party can no longer be reasonably expected to continue the Agreement taking into consideration all circumstances of the specific case and weighing the interests of the contracting parties. In such a case, Provider shall maintain the claim for the remuneration accrued until the termination. If the terminated individual agreement is a contract for work and services, Provider may claim the remuneration for its labour costs until the date when the termination for cause takes effect at the contractually agreed daily rates based on written evidence in form of written performance records.
(4) If Customer terminates an (individual) contract for works and services early without the existence of any good cause (so-called “free termination”), Provider may claim the remuneration for its labour costs until the date when the termination takes effect at the contractually agreed daily rates based on written evidence in form of written performance records. As to the services not yet provided at the time the termination takes effect, it is assumed that Provider is entitled to 30% of the agreed remuneration allocable to the part of the work performance not yet provided.
§ 11 Reservation of Title
Provider reserves the title and all rights – particularly copyrights – to all Contractual Services until the full payment by Customer.
§ 12 Miscellaneous
(1) The parties are aware of the fact that IT services may be subject to export and import restrictions. Notably, there may be duties to obtain approvals and/or the use of software or associated technologies may be subject to restrictions abroad. Provider shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union, and the Unites States of America, as well as all other relevant regulations. Provider’s performance of the Agreement is subject to the condition that there are no impediments to the performance due to national and international export and import law regulations as well as that there are no other opposing legal regulations.
(2) Customer is responsible for all customs duties and taxes imposed on the Contractual Services. This shall not apply to value added and income taxes Provider has to pay.
(3) Save as provided in sec. 354a HGB, Customer shall not be entitled to set off or assign any claims.
(4) Provider may assign its rights and duties to an affiliated company, provided that this does not adversely affect interests of Customer worth being protected. Provider is allowed to have third parties contribute Contractual Services, provided that this will not adversely affect Customer’s interests to an extent Customer cannot be reasonably expected to accept.
(5) Provider has the right to identify Customer’s enterprise for reference purposes in advertisements (classic or via Internet) and to display Customer’s logo in a reasonable manner too.
§ 13 Final Provisions
(1) The contracting parties agree on the written form (as defined in the German Civil Code) for modifications of or amendments to this Agreement, including any modification of this written form clause. There are no oral collateral agreements. Electronic documents in text form (as defined in the German Civil Code) do not comply with the written form requirement.
(2) This Agreement shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of U.N. Sales Law.
(3) Exclusive venue of court for all disputes under this Agreement shall be Munich and St. Georgen im Schwarzwald, Germany. Place of performance shall be Provider’s place of business.
(4) If any of the provisions of this Agreement should be invalid and/or if this Agreement should be incomplete, this shall not entail any changes of the validity of the Agreement in any other respect. The invalid and/or incomplete provision shall be deemed replaced by such a provision, which comes closest to the invalid provision or the missing provision in terms of its economic effect.
(5) With respect to the interpretation and construction of the Terms and Conditions, only the German version shall prevail.