General Terms and Conditions of p-square GmbH

As of September 13, 2024
 

Scope

 

The following terms and conditions apply to all offers, deliveries, and services arising from purchase contracts, contracts for work and services, or other contracts, including those arising from future business transactions and continuing obligations, regardless of whether the contracts were concluded verbally, in writing, or via the Internet.

These terms and conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We only recognize terms and conditions that conflict with or deviate from our terms and conditions, including the purchaser's terms and conditions of purchase, if we expressly agree to their validity in writing.

These terms and conditions also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.

Individual agreements made with the buyer in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these terms and conditions.

The content of such agreements shall be governed by a written contract or our written confirmation,

subject to proof to the contrary.

Offers, order confirmation

Offers are subject to change without notice, unless otherwise expressly agreed. The customer is bound to an order once it has been placed. An order is only considered accepted once it has been confirmed in writing, we have sent an order confirmation digitally (e.g., by email or in a procurement portal), or we have started delivery within this period.

 

The conclusion of the contract is subject to the correct and timely delivery by our suppliers. This only applies if we are not responsible for the non-delivery, in particular if we have concluded a congruent covering transaction with our supplier. We expressly do not assume any procurement risk if we have concluded a purchase agreement with our supplier for the service owed. The customer will be informed immediately of the unavailability of the service. The consideration will be refunded immediately.

Subsequent changes requested by the customer will be charged to the customer.

Cost estimates are non-binding. If, during the execution of the order, we recognize that the estimated costs will increase significantly (by more than 20%), we will immediately cease work and inform the customer. At the same time, we will provide the customer with an estimate of the now expected necessary expenditure. The customer then has the right to decide whether to cancel or continue the order.

If the order is canceled, the services and deliveries provided up to that point will be paid for. The customer will receive all work results produced up to that point.

Prices and payments

The prices agreed upon at the time of conclusion of the contract apply. These are specified in the order confirmation.

Prices are exclusive of the applicable statutory value added tax. Invoices, including advance payment invoices, are payable in accordance with the specified payment terms or, if no payment terms are specified, within 30 days of the invoice date, net.

Troubleshooting times, unless they are part of the statutory warranty, are working hours and will be invoiced to the customer as such.

The customer is only entitled to offset claims that have been legally established or are undisputed.

Delivery

Dates are only binding if they have been expressly confirmed by us in writing as binding.

The deadline is deemed to have been met if we have notified the customer of our readiness to perform. Unforeseen circumstances and events such as force majeure, government measures, failure to obtain official approvals, labor disputes of any kind, sabotage, raw material shortages, delayed material delivery through no fault of our own, war, riots, etc. shall postpone the delivery date accordingly, even if they occur during an already existing delay.

If the customer is in default of acceptance, we shall be entitled, after expiry of a grace period to be set by us, to refuse performance of the contract and to claim damages.

The customer's rights arising from transactions with us are not transferable without our written consent.

Unless otherwise agreed or unless the nature of the service dictates otherwise, services shall be provided remotely via data connections.

If the personal presence of a p-square employee at the customer's premises is necessary or desired, the customer shall bear the necessary travel expenses. Unless flat-rate compensation has been agreed for this, travel time shall be considered working time subject to remuneration.

Retention of title

All goods delivered by us remain our property until the purchase price has been paid in full and all claims arising from the business relationship have been settled in full (extended retention of title).

Any disposal of the goods subject to retention of title by the customer is only permitted in the course of the customer's regular business transactions. Under no circumstances, however, may the goods be transferred to third parties as security in the course of regular business transactions.

This also applies analogously to the delivery of virtual goods, rights of use, and licenses.

Items delivered for testing and demonstration purposes remain our property. They may only be used by the customer beyond the testing or demonstration purpose on the basis of a separate agreement with us.

Obligations and duties of the client

1. p-square is dependent on the timely and quantitatively and qualitatively sufficient cooperation (persons/activities) and/or provision (items/rights) by the client in order to perform the services in accordance with the contract. The client shall provide these at its own expense.
2. The client has the following general obligations to cooperate and provide resources:
   1. The client - shall, immediately after conclusion of the contract and until termination of the respective service relationship, appoint and designate a contact person who is available during the applicable service hours
   2. and who is authorized to make binding decisions for the
   3. Client, including with regard to costs incurred, or to bring these about without delay,
   4. shall transmit to p-square all information and data necessary for the provision of a service that is available to them, shall communicate the information transmitted to them by p-square internally to the responsible departments within the Client's company and shall transmit information originating from there to p-square,
   5. provides the infrastructure necessary for installation (e.g., power supply,
   6. network cabling, on-site Internet connection), provides the software necessary for the service
   7. and not purchased from p-square with the usable license
   8. keys in a current and sufficient form and quantity,
   9. cooperates in the processing of defects,
   10. undertakes the following activities, insofar as these are not provided by p-square as agreed
   11. ,
       1. backing up the existing data on the systems used with the aid of a state-of-the-art data backup system, at least once per working day
       2. Ongoing and regular checking of the local systems to which it has access for malware using a virus scanner that meets the current state of the art
       3. Installation of security updates and other security measures on the local systems to which it has access in accordance with the recommendations of the respective software and hardware manufacturers.
3. Services shall be postponed if the cooperation or provision of materials necessary for their performance is not provided or is not provided in the required quality
4. .
5. If the client requires advice with regard to the details of its cooperation or provision of materials, the
6. consulting services shall be provided by p-square for a separate fee.
7. If the contracting parties agree on an activity by p-square outside the service time applicable up to this agreement, p-square can only provide those services outside the service time that either do not depend on the client's cooperation/provision or for which the necessary cooperation/provision is provided outside the previously agreed service time.

Changes to agreements or services at the request of the client

If, after a contract has been concluded, the client wishes to change agreements or services, they must notify p-square of this wish in writing at least. p-square will then review the change request and, provided that the changed service is within p-square's general portfolio of services and the change is reasonable for p-square, submit an offer to change the agreement or service in writing at a minimum. The offer shall also include any changes to existing agreements regarding quality, deadlines, and prices. The client shall then decide immediately whether to accept the offer; if the client has not sent p-square a declaration of acceptance within three (3) working days of the offer being sent, this shall be deemed a rejection of the offer. Unless an agreement has been reached on the desired change, the previous agreements or services shall continue to apply.

Changes to services by p-square

A service may be changed by p-square with effect for the future if

1. this is necessary for an objective reason,
2. the client is not objectively worse off than with the previously agreed service
3. (e.g., by retaining or improving agreed functionalities) and
4. the change in service is not otherwise unreasonable for the client.

Objective reasons for a change exist

• if there are technical innovations on the market for the agreed services,
• agreements with clients or applicable standards based on agreements with clients cause p-square to adapt the service in accordance with the requirements of the technical innovation, and p-square, as a multi-client service provider, can only reasonably offer such modified services uniformly to all clients or to a group of clients to which the client belongs
• belongs,
• if third parties from whom p-square purchases advance services change their range of services and no longer offer the original service, or if the service contains other products or services from third parties and these are no longer available to p-square,
• or are only available in a modified form,
• changed legal or regulatory requirements necessitate a change,
• the services no longer comply with the proven state of the art, the applicable safety regulations, or the applicable data protection requirements, or their functionality or operability is no longer guaranteed.

p-square will announce such changes in writing with a lead time of at least four (4) weeks. If third parties, e.g., upstream suppliers, the

legislature, or an authority, necessitate the change to the service, this lead time may not be possible to comply with. In this case, however, p-square will endeavor to announce the change at an early stage,

as soon as p-square learns of the change by the third party within the above-mentioned period.

d) A change in accordance with the above provisions does not necessarily result in a change in the price of the service. For price changes,

the provisions on price changes in these GTC and the applicable additional terms and conditions apply.

Confidentiality

1. The contracting parties undertake to protect their business secrets and the business secrets entrusted to them by the other contracting party in an appropriate manner and in accordance with the sensitivity of the respective business secret by means of technical and organizational measures against access by unauthorized third parties. In particular, they may only be disclosed within the organization of the respective contractual partner to those persons who are equally bound to secrecy and to the extent necessary for the execution of the contractual relationship.
2. The contractual partners undertake to maintain confidentiality regarding the trade secrets provided or made available to them by the other contractual partner. The trade secrets may only be used within the scope of the purpose of the contract. Beyond that, they may not be recorded, passed on, or used for their own purposes.
3. The contracting parties shall ensure through appropriate contractual agreements with their employees that they also refrain from any use, disclosure, or
4. unauthorized recording of trade secrets. The contracting party shall be liable for any breach by its employees as if it were its own fault.
5. The duty of confidentiality applies to any type of knowledge acquisition, whether verbal, in paper form or in electronic form (through data transmission or on data carriers), through the granting of access or in any other way through direct or indirect transmission.
6. Business secrets do not include facts or assessments that
   1. were known to the contractual partner prior to disclosure by the other contractual partner
   2. were known or accessible to the public prior to disclosure by the disclosing contractual partner
   3. became generally accessible to the public after disclosure by one contractual partner to the other
   4. were learned by one contractual partner at any time from an authorized third party
   5. contractual partner without the involvement or fault of the other contractual partner,
   6. a contractual partner has learned at any time from an authorized
   7. third party who is not subject to confidentiality towards the other
   8. contractual partner, or
   9. the contractual partner has developed or had developed independently of the knowledge of the trade secret
   10. .
   11. Facts that justify the existence of an exception must be proven by the contractual partner
   12. invoking the exception.
7. Each contracting party may only disclose business secrets of the other contracting party to third parties if required to do so by law or official orders, or if the other contracting party has expressly consented to this in writing. The other contracting party must be informed immediately in writing of any disclosure.
8. Violations shall result in liability for damages.
    

Impossibility, withdrawal

We are entitled to withdraw from the contract for the following reasons:

1. If, contrary to the assumption made prior to the conclusion of the contract, it transpires that the customer is not creditworthy. Credit unworthiness can be assumed without further ado in the event of a bill of exchange or check protest, suspension of payments by the customer, or an unsuccessful enforcement attempt against the customer. It is not necessary for this to concern relations between us and the customer.
2. If it transpires that the customer has provided inaccurate information regarding their creditworthiness and this information is of significant importance for the conclusion of the contract.
3. We may also withdraw from the contract if, after conclusion of the contract, circumstances essential to the execution of the contract have developed beyond our control in such a way that performance has become impossible or unreasonably difficult for us (e.g., non-delivery by the upstream supplier for which we are not responsible or the possibility of delivery only under significantly more difficult conditions).
4. Finally, we are also entitled to withdraw from the contract if the customer materially breaches its contractual obligations, in particular if it can be accused of a breach of duty of care with regard to the handling of the goods delivered under retention of title.
5. In all other respects, our right of withdrawal and the customer's right of withdrawal are determined by the statutory provisions.

Special provisions for maintenance and repair work

If we carry out maintenance and repair work that is not covered by statutory warranty or expressly agreed warranty, this shall be done exclusively under the agreed terms and conditions, which apply in addition to these General Terms and Conditions.

Our maintenance and repair activities are services and will be charged additionally.

Software

If the subject matter of the contract is the provision of software, the following applies:

Unless otherwise agreed individually, the customer shall receive a simple right to use the purchased programs for their own purposes. The customer is only entitled to pass on the software covered by the contract with our prior written consent. The customer is not entitled to use the software for others or to make it available to third parties for data processing, even if used on the customer's own computers.

The customer is not entitled to grant sublicenses.

The customer is not entitled to copy the software, distribute copies, edit the software, or make it publicly available. As an exception to the prohibition on copying, the customer is entitled to make a backup copy.

The customer shall keep written records of the licenses purchased and their use. Any change in the location of the programs must be recorded in writing.

All rights beyond the above granting of rights, whether copyrights, industrial property rights, or other rights, are exclusively reserved to us.

If, for technical reasons, the data carrier provided to the customer contains software that is not covered by the software license granted to the customer, this software may only be used on the basis of a separate license, which must be obtained by the customer. The software may contain technical means to prevent the use of unlicensed software.

The customer shall affix or retain our copyright notices and all other industrial property rights notices on all complete and partial copies of the software in the manner specified in the original version of the software.

The customer has no right to receive the source code.

If the customer wishes us to perform the installation, this is an additional service that can be ordered as a service in a separate order. This also applies to training in the use of the program. Such training will be provided by us on the basis of a separate order and separate remuneration according to the time and effort involved, in accordance with the applicable hourly rate according to our current price lists, plus travel costs and expenses.

If the subject of our service is the delivery of third-party software, the customer is obliged to inform themselves about the manufacturer's license terms and to observe them.

Documentation, in particular from third-party providers, is delivered in the form in which it is made available by the manufacturer. This may also mean delivery in a foreign language. We are not obliged to translate documentation on programs from third-party manufacturers into German.

Data protection

Our order processing is carried out by means of automatic data processing. The customer hereby gives their express consent to the processing of data that has become known to us from the business relationship with them, as well as to the processing of all data transmitted to us within the scope of order processing.

The customer also agrees that we may use their personal data stored within the scope of the business relationship (name, address, date of birth) and the information on the software and hardware supplied and maintained within the scope of our business relationship with them within the scope of the existing business relationship with them.

General

Should one or more of the above conditions be or become invalid or contain a loophole, the remaining conditions shall remain unaffected.

Any agreements that deviate from or supplement the above provisions shall only be effective in the form of a written supplementary agreement to the contract concluded by the parties, in which reference is made to the amended terms and conditions. Any waiver of this written form requirement must also be made in writing.

The sole place of jurisdiction shall be, at our discretion, our registered office or the customer's registered office.

This contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany.