1. SCOPE OF APPLICATION
1.1The following General Contractual Terms and Conditions of Pentos shall apply to all services Pentos AG (“Pentos”) performs for an entrepreneur (“Customer”), unless they are modified or excluded with the explicit written consent of Pentos. The following General Contractual Terms and Conditions shall be supplemented by Pentos’ “Contractual Terms and Conditions for Creating Software” if software is created and by Pentos’ “Contractual Terms and Conditions for Services” if services are performed. If provisions in these General Contractual Terms and Conditions conflict with provisions in the Contractual Terms and Conditions for Creating Software and/or the Contractual Terms and Conditions for Services, the provisions in these General Contractual Terms and Conditions shall have precedence.
1.2 Differing general terms and conditions of the customer or a third party shall apply only if Pentos has given its explicit written consent thereto. If Pentos refers to correspondence that contains or refers to the general terms and conditions of the customer or a third party, that shall not constitute explicit consent that those general terms and conditions are to apply. These General Contractual Terms and Conditions shall also apply to all future services or offers for the customer, even if they are not agreed separately.
2. REMUNERATION, PAYMENT, PROTECTION OF SERVICES, DEADLINES
2.1 Unless otherwise agreed, the remuneration shall be based on time and material at the prices of Pentos that were generally applicable at the time the agreement was concluded. In principle, any remuneration shall denote a net price, on top of which value-added tax or sales tax at the statutory rate is payable. Pentos can charge the remuneration on a monthly basis. If services are paid by time and material, Pentos shall document the nature and duration of the activities and enclose this documentation with the invoice.
2.2 Services above and beyond the agreed scope of services or the subject matter of the agreement shall be paid separately by the customer. The applicable rates of Pentos shall be charged for them. The above shall also apply to services performed because the customer has provided incorrect or incomplete details or due to unverifiable complaints about defects, incorrect use of a system or a breach of duties by the customer.
2.3 All invoices shall be payable free the place of payment, without deduction and within 14 calendar days after they have been received.
2.4 If rights to use deliveries and services are transferred permissibly, the customer shall be obliged to impose the contractually agreed restrictions for them on their recipient.
2.5 If the customer does not settle a due claim in full or in part by the contractual payment deadline, Pentos can revoke any agreed periods of payment for all claims. Pentos shall also be authorized to provide further services only against cash in advance or against security in the form of a performance bond from a bank or credit insurer that is allowed to operate in the European Union. The advance payment shall cover the respective accounting period or – in the case of one-off services – the remuneration for them.
2.6 If the customer is economically incapable of meeting its obligations toward Pentos, Pentos can, without notice, end existing reciprocal agreements with the customer by rescinding them and end continuous obligations by terminating them, including if the customer files for insolvency. Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) shall remain unaffected. The customer shall give Pentos early written notification if it faces the threat of insolvency.
2.7 Times stated for deliveries and the performance of services by Pentos shall not be binding, unless Pentos had stated in writing that they are binding. Pentos may provide partial deliveries/services, provided the parts supplied can be used by the customer expediently.
2.8 Times for deliveries and the performance of services shall be extended by the period of time in which the customer is in default in payment under the agreement and by the period of time in which Pentos is impeded in providing the delivery or service by circumstances for which Pentos is not responsible, as well as by a reasonable start-up period when the reason for the impediment is over. These circumstances shall also include force majeure and labor disputes. The deadlines shall also be extended by the period of time in which the customer does not fulfill a duty of cooperation in breach of contract, for example does not provide information, does not grant access, does not provide a deliverable or does not provide employees.
2.9 Reminders issued and deadlines set by the customer shall not be valid unless given in writing. Any period of grace must be reasonable. A period of less than two weeks is reasonable only in cases of special urgency.
2.10 The customer can only offset or exercise a right of retention in relation to claims that are not disputed or have been legally established with final and binding effect.
3. COLLABORATION, DUTIES OF COOPERATION, CONFIDENTIALITY
3.1 The customer and Pentos shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and Pentos shall be conducted through these contact persons. The contact persons shall take or obtain all decisions relating to implementation of the agreement immediately. The decisions shall be documented in binding form.
3.2 The customer shall be obliged to support Pentos as far as necessary and to create all the prerequisites necessary to ensure proper execution of the order in its sphere of operations. As part of that, the customer shall in particular provide any information required and, where possible, shall enable remote access to its system. If remote access is not possible for security or other reasons, the affected deadlines/periods shall be extended appropriately; the parties shall agree a reasonable arrangement on further impacts. The customer shall also ensure that expert personnel is available to support Pentos. If it is specified in the agreement that services can be performed at the customer’s premises, the customer shall provide adequate workplaces and work aids free of charge at Pentos’ request.
3.3 The customer shall immediately inspect the supplied objects for any damage in transit or other visible defects, gather any evidence thereof, and assign any rights of recourse and surrender the relevant documents to Pentos. The customer shall report defects in writing immediately, in a comprehensible and detailed form, stating all information that may help identify and analyze the defect. In particular, it shall state the work steps that led to the defect’s occurrence, how the defect manifests itself and the impacts of the defect. Unless otherwise agreed, Pentos’ forms and procedures for that shall be used. Other obligations of the customer to inspect the supplied objects or report defects in them shall remain unaffected.
3.4 The parties shall be obliged to maintain secrecy on business and trade secrets, and other information designated as confidential, of which they gain knowledge in connection with implementation of the agreement. Such information may be disclosed to persons who are not involved in concluding, implementing and handling the agreement only with the written consent of the other party. Unless otherwise agreed, this obligation shall end five years after the information becomes known, but – in the case of continuous obligations – not before the latter end. The parties shall also impose these obligations on their employees and any third parties that are used.
3.5The parties are aware that electronic and unencrypted communication (e.g. by e-mail) entails security risks. In relation to this type of communication, they shall therefore not assert any claims that are based on the lack of encryption, unless encryption has been agreed beforehand.
4.1 Software provided by Pentos shall essentially comply with the product description. There shall be no right to claim for defects in the case of only insignificant deviations from the agreed or required quality and only insignificant impairment to usability. Product descriptions shall not constitute a guarantee unless agreed separately in writing. If updates, upgrades or new versions are supplied, the claims for defects shall be confined to the new features of the supplied updates, upgrades or new versions compared to the previous version.
4.2 If the customer demands subsequent remedy of a defect, Pentos shall have the right to choose between repairing an object or service or supplying a replacement object or service. If an initial deadline set by the customer for Pentos for subsequent remedy elapses without result and the customer has set a further reasonable period of grace and it has also elapsed without result or if a reasonable number of attempts to repair object or service or supply a replacement object or service have been unsuccessful, the customer can – at its choice and subject to the statutory requirements – rescind the agreement or reduce the remuneration and demand damages or reimbursement of expenses. Subsequent remedy can also take the form of handover or installation of a new program version or a workaround. If the defect does not impair functionality or impairs it only to an insignificant extent, Pentos shall be authorized – to the exclusion of further claims for defects – to remedy the defect by supplying a new version or an update as part of its version, update and upgrade planning.
4.3 If the defect is due to the product of a supplier being faulty and the supplier does not act as a vicarious agent of Pentos, but instead Pentos merely passes on a third-party product to the customer, the customer’s claims for defects shall initially be confined to being assigned the claims for defects of Pentos against its supplier. This shall not apply if the defect is due to Pentos being responsible for incorrect handling of the supplier’s product. If the customer cannot enforce its claims for defects against the supplier out of court, secondary liability on the part of Pentos for claims for defects shall remain unaffected.
4.4 Modifications or extensions to the services or supplied objects by the customer itself or by a third party shall mean that the customer’s claims for defects shall lapse, unless the customer proves that the modification or extension is not the cause of the defect. Pentos shall also not be liable for defects that are attributable to incorrect operation and operating conditions or the use of unsuitable operating resources by the customer.
4.5 Pentos can refuse subsequent remedy until the customer has paid Pentos the agreed remuneration minus an amount that corresponds to the economic significance of the defect.
5. LEGAL IMPERFECTIONS IN TITLE
5.1 The software supplied or provided by Pentos shall be unencumbered by third-party rights that prevent it being used in accordance with the agreement. These shall not include customary reservations of ownership.
5.2 If third parties have such rights and claim them, Pentos shall do all in its power to defend the software against the claimed third-party rights at its own expense. The customer shall notify Pentos in writing as soon as such third-party rights are claimed and give Pentos all authorizations and powers necessary to defend the software against the claimed third-party rights.
5.3 In the event of legal imperfections in title, Pentos shall
(a) be authorized, at its choice,
(i) to remove by lawful measures the third-party rights that impede use of the software in accordance with the agreement, or
(ii) remove the claim for such rights, or
(iii) modify or replace the software in such a way that it no longer infringes third-party rights, if and insofar as the software’s owed functionality is not significantly impaired thereby, and
(b) undertake to reimburse the customer for necessary legal costs that can be reimbursed.
5.4 If the indemnification in accordance with Section 5.3 does not succeed within a reasonable period of grace set by the customer, the customer can – at its choice and subject to the statutory requirements – rescind the agreement or reduce the remuneration and demand damages.
5.5 Section 4.5 shall apply accordingly.
6.1 Pentos shall pay damages or reimburse futile expenses, on whatever legal grounds (e.g. due to contractual or similar obligations, defects, legal imperfections in title, breach of duty and tortious acts), only to the following extent:
a) Liability in the event of willful intent and under a guarantee shall be unlimited.
b) In the event of gross negligence, Pentos shall be liable to pay for typical damage that was foreseeable when the agreement was concluded.
c) If a cardinal contractual obligation (an obligation whose proper fulfillment constitutes a condition sine qua non for implementation of the agreement, on the fulfillment of which the party may regularly rely or whose violation jeopardizes achievement of the agreement’s purpose) is violated, Pentos shall be liable to pay for typical damage that was foreseeable when the agreement was concluded.
6.2 Pentos reserves the right to plea comparative negligence. The customer shall be obliged in particular to back up data and defend against malware by applying state-of-the-art methods.
6.3 The statutory regulations shall apply without limitations in the event of injury to life, body and health and to claims under the German Product Liability Law (Produkthaftungsgesetz).
7. LIMITATION OF ACTIONS
7.1 The period of limitation shall be
a) one year as of delivery of the software in the case of defects for claims to repayment of the purchase price resulting from rescission of the agreement or reduction of the purchase price, but for properly reported defects no less than three months as of when the effective declaration of rescission of the agreement or reduction of the purchase price is issued;
b) one year for all other claims due to defects;
c) two years for claims due to legal imperfections in title, if the legal imperfection in title does not lie in the right of a third party that entitles the third party to demand that the objects supplied by Pentos be surrendered or use of them discontinued;
d) two years in the case of claims for damages or reimbursement of futile expenditure that are not due to defects or legal imperfections in title; the period of limitation shall commence at the time the customer has gained knowledge of the circumstances justifying the claim or ought to have known them without gross negligence on its part.
7.2 Action shall be time-barred at the latest on the expiry of the maximum periods specified in Section 199 of the German Civil Code (BGB). However, the statutory regulations on limitation of actions shall always apply to damages or reimbursement of expenditure due to willful intent, gross negligence, a guarantee, intent to deceive and the cases specified in Section 6.3.
8. START AND END OF THE CUSTOMER’S RIGHTS
8.1 Ownership and the rights to use the supplied objects shall not pass to the customer until the remuneration specified in the agreement has been paid in full.
8.2 If rights of use do not arise or if they end, Pentos can demand that the customer return the provided objects or provide written assurance that they have been destroyed, as well as that the customer delete or destroy all copies of the objects and provide written assurance that this has been done.
9. DATA PROTECTION
The customer shall conclude the agreements required to enable possible access to personal data with Pentos and in doing so shall observe the special requirements for commissioned data processing (Section 11 of the German Federal Data Protection Act (BDSG)).
10.1 The customer shall comply with the import and export regulations applicable to deliveries and services, in particular those of the U.S., under its own responsibility. In the case of cross-border deliveries or services, the customer shall pay any customs duties, fees and other fiscal charges. The customer shall handle statutory or official processes in connection with cross-border deliveries or services under its own responsibility, unless explicitly agreed otherwise.
10.2 Pentos shall have the right to use subcontractors to fulfill its obligations.
10.3 Modifications and amendments to the agreement shall only be effective in writing. The requirement for written form can be rescinded only in writing. Communication in text form, in particular by fax or e-mail, shall not constitute written form.
10.4 If individual provisions of this agreement are or become invalid in full or in part, the validity of the other provisions in the agreement shall not be affected thereby; in such a case, the parties undertake to replace the provision that is invalid or unworkable in full or in part with a valid or workable arrangement that corresponds as closely as possible to the intended economic purpose of the provision that is invalid or unworkable in full or in part within the context of the overall agreement.
10.5 The place of performance and sole place of jurisdiction for deliveries and payments and for all legal disputes arising between the parties shall be Pentos’ principal place of business. This shall apply to the place of jurisdiction provided that the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch) or the customer does not have a domicile in the Federal Republic of the Germany at the time legal action is filed.
10.6 The relationships between the parties shall be governed solely by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Status: March 2017