GENERAL TERMS AND CONDITIONS
SECTION 1: SCOPE AND SUBJECT OF THE CONTRACT
1. In all contractual relationships in which bluekey solutions GmbH & Co KG (hereinafter referred to as “bluekey”) provides services for other companies, legal entities governed by public law or special funds under public law (hereinafter referred to as “Clients”), these General Terms and Conditions and the current applicable price and conditions list of Bluekey apply.
2. Services pursuant to Section 1.1 are, in particular:
– Organizational and business consulting
– Technical consulting and support either on site or remotely via any method of distance communication
– Modification and supplementation of standard software and other software or support in such matters
– Installation of standard software and other software and programming of necessary interfaces or support in such matters
– Training of the Client’s employees in accordance with the specifications of the current bluekey price and conditions list
– Services covered by maintenance contracts
3. Conflicting or supplementary terms and conditions – in particular the General Terms and Conditions of the Client – shall not form part of the contract, even if bluekey executes a contract without explicitly contradicting such conditions.
SECTION 2: CONTRACT FORMATION PROCESS AND CONCLUSION OF CONTRACT
1. Objects provided by bluekey to the Client before a contract has been concluded (e.g. proposals, test programs, concepts) remain the intellectual property of bluekey (see Section 9). They may not be reproduced or made accessible to third parties. If no contract materializes, they must be returned or deleted and may not be used. In all other respects, the provisions of these General Terms and Conditions, in particular the liability limitation clause stipulated in Section 12, shall also apply to the pre-contractual obligations.
2. bluekey may accept offers from Clients within four weeks. Quotations issued by bluekey are non-binding unless otherwise agreed in writing. In case of doubt, the quotation or the order confirmation issued by bluekey are decisive for the content of the contract.
3. The conclusion of the contract as well as subsequent amendments and additions to the contract must be made in writing in order to be effective. This also applies to a waiver of the written form requirement. Additional verbal agreements shall not be deemed valid.
4. All terminations, reminders and deadlines set by the Client must be in writing in order to be effective.
5. The written form as referred to in Sections 2.3 and 2.4 or elsewhere in these General Terms and Conditions includes fax, email and correspondence. Section 127.2 of the German Civil Code does not apply.
6. Commitments of any kind, which give rise to further obligations on the part of bluekey above and beyond those stipulated in these Terms and Conditions, shall require the express written confirmation of bluekey. Guarantees require the express written confirmation of bluekey management.
SECTION 3 CONTRACTUAL OBLIGATION
1. Cooperation requires a high degree of trust, cooperation and willingness to come to an agreement. Deadlines set by the Client by law or contract must be at least 10 working days – except in urgent cases.
2. If the deadline set by the Client expires without results and this entitles the Client to dissolve the contract (e.g. by withdrawing from or terminating the contract or claiming compensation instead of the services being performed) or entitles the Client to demand a reduction in price, the Client must state the consequences of the deadline lapsing without results in writing at the time of setting the deadline. Upon the expiration of a deadline set in accordance with Section 3.1, bluekey may demand that the Client exercise its rights resulting from the expiry of the deadline within two weeks after receipt of the request.
3. The services already provided may be charged according to these Terms and Conditions, in particular Section 7. In the event of damage claims, Section 12 applies.
SECTION 4: PROVISION OF SERVICES
1. The Client shall specify the services it requires. Based on this information, the tasks to be performed are then planned by the Client and bluekey in mutual consultation. If necessary, bluekey may submit a written concept for this. Further details can be found in the individual contract.
2. Even if the services are performed on site at the Client’s premises, only bluekey is authorized to give instructions to its employees. The employees shall not become integrated into the Client’s business operations. The Client may only give instructions to the bluekey project coordinator, not directly to the individual employees.
3. The Client is responsible for making sure that the services ordered correspond to its wishes and needs. In cases of doubt, the Client must seek advice from the bluekey employees or third-party specialists.
4. bluekey may produce memos about conversations in order to clarify or change contractual conditions, in particular those concerning the subject of the contract. The Client must check the memos immediately and inform bluekey of any necessary changes and additions.
5. bluekey decides which employees will be deployed and reserves the right to replace employees at any time. It may also use freelancers and other companies to fulfill the assignment. bluekey is responsible for faults made by subcontractors as well as faults made by bluekey.
6. If the services cannot be provided for reasons for which bluekey is not responsible, the agreed times will still be invoiced, unless the Client proves that the relevant bluekey employees could be used for other purposes.
7. If bluekey provides services beyond the scope of the contract with the consent of the Client, the Terms and Conditions of the individual contract are deemed to be agreed for the services provided.
8. All contractual obligations on the part of bluekey are subject to the condition that at the time of performance there are no embargo regulations to the contrary.
SECTION 5: CLIENT COOPERATION
1. The Client shall provide the working environment necessary for the performance of contractual services (hereinafter referred to as: “IT systems”) according to the SAP specifications. It is also the Client’s responsibility to ensure the proper operation of the necessary IT systems, if necessary through maintenance contracts with third parties. In particular, the Client shall observe the specifications of SAP.
2. The Client is obliged to cooperate, free of charge and as far as is necessary, in the fulfillment of the contract, e.g. by providing employees, workspaces, IT systems, data and telecommunications equipment. It shall grant bluekey direct access to the software and IT systems via Internet/VPN or a dedicated login. It shall answer questions and review results.
3. The Client designates in writing a contact person for bluekey and provides an address and email address through which this contact person can be reached. The contact person must be in a position to make or initiate the necessary decisions for the Client without delay. The contact person is responsible for ensuring that cooperation with the contact person at bluekey runs smoothly. Employees of the Client whose involvement is required shall be released from their other duties as far as is reasonable.
4. The Client shall test the work results thoroughly for defectiveness and usability in the specific situation before putting them into operation. This also applies to services that the Client receives within the scope of supplementary performance and maintenance activities.
5. The Client shall take appropriate precautions for the event that the work results are affected by faults (e.g., by backing up data, performing fault diagnoses, periodically reviewing results). In the absence of an express written notice in individual cases, bluekey employees can always assume that all data with which they can come into contact is secured.
6. In addition, the Client shall also cooperate to the extent that is necessary and required to execute the contract. The individual contract may contain supplementary regulations.
7. The Client shall bear any disadvantages and additional costs arising from a breach of its contractual obligations.
SECTION 6: PERFORMANCE TIME
1. Deadlines are non-binding unless the parties have otherwise explicitly agreed upon in writing that they are binding. bluekey’s obligation to commence implementation begins once the Client has accepted the concept.
2. If bluekey is waiting for the Client to cooperate or provide information or is hindered in the execution of the contract by strikes, lock-outs, official intervention or other circumstances beyond its control, delivery and performance deadlines shall be deemed extended by the duration of the impediment and by an appropriate start-up period after the end of the impediment. bluekey shall notify the Client of the impediment.
3. Working days are weekdays from Monday to Friday (8 am to 5 pm CET), except for public holidays in the state of Baden-Württemberg and 24 and 31 December.
SECTION 7 FEES, PAYMENT, RESERVATION
1. In the absence of any other written agreement, the fee is based on the current bluekey price and conditions list.
2. All prices are exclusive of the applicable statutory value added tax unless the sale is exempt from value added tax. bluekey is entitled to invoice partial services. Payments are due 14 days after invoicing. Discounts are not granted. From 30 days after the due date, bluekey shall charge interest at the current statutory rate of default interest.
3. Invoicing on a time and material basis is calculated based on bluekey’s activity records. The Client
has a period of 2 weeks in which to file a written objection against the information contained therein.
4. Travelling time, travel expenses and accommodation costs are calculated based on actual costs incurred, depending on the place of work of the bluekey employee. Travelling time and costs arise when the employee travels between his/her place of work and the Client’s location or between different locations of the Client.
5. bluekey is entitled to demand installment payments or full advance payments if bluekey does not already have a business relationship with the Client, if the services or goods are to be delivered abroad or if the Client is located abroad or if there are reasons to doubt that the Client will pay punctually.
6. The Client is only entitled to offset claims if they have been legally established or are uncontested. The Client is not permitted to transfer its claims to third parties, notwithstanding the provisions of Section 354a of the German Commercial Code.
7. bluekey retains ownership of and the rights (Section 9) to the subject of the contract until the claims under the contract have been settled in full. The Client must notify bluekey immediately in writing of any access by third parties to the reserved property and inform the third party of the rights of bluekey, insofar as they are not subject to the copyright of SAP.
SECTION 8: CHANGE REQUEST PROCEDURE
1. Throughout the duration of a project, both contracting parties may propose changes, in particular the agreed services, methods and deadlines, in writing and at any time.
2. If the Client proposes a change, bluekey will inform the Client within 10 working days whether the change is possible and detail the effects it will have on the contract, in particular taking into account the timescale and the fee. The Client must then inform bluekey in writing within 5 working days whether it intends to uphold the proposed changes to these conditions or whether it intends to continue the contract under the old conditions. If the examination of a change proposal requires a considerable about of time and effort, bluekey may issue a separate invoice to cover the resulting costs.
3. If bluekey proposes a change, the Client will inform bluekey in writing within 10 working days whether it agrees to the change.
4. As long as there is no agreement on the change, work will continue under the conditions stipulated in the existing contract. Instead, the Client may demand that the work be interrupted in whole or in part or terminated definitively in accordance with the requirements of Section 3.
In the event of interruption, from the first working day per day and bluekey employee on the project whose work is suspended, a remuneration is due in the amount of the agreed rate, otherwise in accordance with the daily rates contained in the price and conditions list. In the case of a definitive termination, the legal consequences are determined according to the provision of Section 649 of the German Civil Code.
SECTION 9: RIGHTS
bluekey reserves all rights to the work results, in relation to the Client, as far as they are not subject to SAP copyright, even if the work results arose as a result of specifications or cooperation on the part of the Client. Unless otherwise agreed in writing, the Client shall have a non-exclusive right to use the work results on the full payment of the partial amounts due up to and including acceptance, for the purpose of processing its internal business transactions and those of such companies that are associated with it within the meaning of Section 15 of the Company Law (“Group companies”), to the same extent as for the SAP® standard software. Use exclusively for test purposes is permitted to the extent necessary prior to acceptance. The Client is entitled to create necessary backup copies of the work results. Each backup copy must be marked as such and provided with the copyright notice of the original data carrier.
SECTION 10: ACCEPTANCE OF WORK SERVICES
1. For all services that are available for acceptance, bluekey is entitled to demand a written declaration of acceptance from the Client. The Client shall accept services without delay in accordance with the provisions of this Section (Section 10). For this purpose, an acceptance protocol, which is to be signed by both contracting parties, can be drawn up.
2. If the subject of a work contract comprises several individual products or services that can be used by the Client independently of one another, these individual products or services shall be accepted separately.
3. If sub-components are defined in a work contract, bluekey is entitled to present those sub-components for acceptance. In the event of subsequent acceptance procedures, only the functioning of the new sub-component and the correct interaction between the previously accepted sub-components and the new sub-component are checked.
4. If the contract contains preparation work for a concept, in particular for the development, modification or extension of standard software, then bluekey may demand a separate declaration of acceptance for the concept.
5. The Client has within 15 working days in which to check the results of the services delivered and to declare in writing, via the contact person, its acceptance of the results or inform bluekey of the identified defects, including a detailed description and indication of the error symptoms. If the Client does not accept the results or inform bluekey of any defects within this period or uses the services without complaint, the service shall be deemed to be accepted. Negligible defects do not provide grounds to refuse acceptance.
The productive use or the productive commissioning of (partial) services by the Client shall in any case be considered as acceptance of the respective productively used service.
6. bluekey shall remedy the defects notified in accordance with Section 10.5 within a period appropriate to the severity of the defect. Once the Client has been informed that the defects have been eliminated, the Client shall check the results within 5 working days. In all other respects, Section 10.5 shall apply accordingly.
SECTION 11: MATERIAL DEFECTS AND DEFECTS OF TITLE
1. In accordance with paragraphs 1 to 7, bluekey guarantees that the services subject to statutory liability for defects of quality and title have the expressly agreed quality characteristics and that the transfer of the agreed powers to the Client (Section 9) is not opposed by any rights of third parties. Insofar as no quality specifications have been agreed, the liability refers to the fact that the service is suitable for the contractually stipulated, otherwise usual use and is of a quality that the Client can expect for services of this kind.
2. The Client shall notify bluekey immediately of any defects that arise in writing, including a detailed description of the problem and any information that is useful for troubleshooting. To this end, the Client shall examine the work results immediately after delivery by bluekey, as far as this is feasible in the ordinary course of business, and if there is a defect, the Client shall notify bluekey immediately. If the Client fails to make such notification, the result of the work shall be deemed to have been approved, unless it concerns a defect which could not be detected during the examination. If such a defect is discovered later, the notification must be made immediately after discovery, otherwise the result of the work shall be deemed approved even in consideration of this defect. The timely sending of the notification is sufficient for the Client to preserve its rights. If bluekey has fraudulently concealed the defect, bluekey cannot refer to the provisions of sentences 2 to 5 above. Only the contact person (Section 5.3) is entitled to complain in the above sense.
3. In the case of proven material defects, bluekey shall comply with its warranty obligations through supplementary performance, in such a way that, and at its discretion, bluekey either provides a new, defect-free service to the Client or rectifies the defect. The correction of defects can also consist of bluekey showing the Client reasonable possibilities to avoid the effects of the defects.
In the case of proven defects of title, bluekey shall comply with its warranty obligations through subsequent performance by providing the Client with a legally sound option to use the delivered service or, at its discretion, with a replacement or modified equivalent service.
The Client must adopt a new software version if the contractual features remain unchanged and the adoption of a new software version is not unreasonable. The urgency of troubleshooting depends on the degree of disturbance to operations. The rules stipulated within these Terms and Conditions, in particular Section 5, apply accordingly.
4. If subsequent performance finally fails after expiry of a reasonable period of grace to be set by the Client, the Client may pay a reduced fee or withdraw from the contract or terminate a continuing obligation. The requirements of Section 3 of these Terms and Conditions are to be adhered to when granting the grace period. bluekey shall pay damages or compensate for wasted expenses due to a defect within the limits stipulated in Section 12. Other rights due to material defects or defects of title are excluded.
5. The claims according to Sections 11.1, 3 and 4 shall become time-barred after one year from the beginning of the statutory period of limitation for claims due to the relevant material and title defect. This also applies to claims arising from withdrawal and reduction pursuant to Section 11.4 sentence 1. The shortening of the limitation period does not apply in the event of intent or gross negligence on the part of bluekey, fraudulent concealment of the defect, personal injury due to defect of title within the meaning of Section 438.1 No.1a of the German Civil Code.
6. For defects in rectification services, circumvention or new deliveries by way of subsequent performance, the statute of limitations also ends at the time specified in Section 11.5. However, if bluekey checks the existence of a defect in agreement with the Client or provides subsequent performance, the limitation period is suspended until bluekey informs the Client of the result of its check or declares the subsequent performance to be complete or refuses subsequent performance. The statute of limitations shall expire at the earliest 3 months after the end of the suspension.
7. If bluekey provides services during troubleshooting or repair activities without being obliged to do so, bluekey may invoice the additional expenses in accordance with Section 7. This applies in particular if a reported material defect cannot be proven or attributed to bluekey. In particular, any additional costs incurred by bluekey when eliminating defects arising as a result of the Client not properly fulfilling its duties to cooperate, the Client’s improper use of software or work results or the Client’s failure to make use of SAP® services recommended by SAP shall also be reimbursed.
8. If a third party raises claims that impair the contractual right of use, the Client is obliged to inform bluekey immediately and comprehensively in writing. If the client stops using the work results in order to minimize the damage or for other important reasons, it is obliged to point out to the third party that the suspension of use does not constitute an acknowledgement of the alleged infringement of property rights. The Client now authorizes bluekey to handle the dispute with the third party both in and out of court on its own. If bluekey makes use of this authorization, which shall be at its own discretion, the Client may not acknowledge the claims of the third party without bluekey’s consent and bluekey is obliged to defend the claims at its own expense. bluekey indemnifies the Client from costs and damages which are exclusively attributable to bluekey’s defense against the claims. The provisions of this paragraph shall apply irrespective of the start of the limitation period pursuant to Section 11.5.
9. If bluekey does not render services or does not render them properly above and beyond the scope of liability for material defects and defects of title or if bluekey commits another breach of duty, the Client must always give bluekey written notice of this and grant bluekey a grace period within which bluekey is given the opportunity to properly perform the service or to remedy the situation in another way. Section 3 applies. The limits set out in Section 12 shall apply to damages and compensation for wasted expenses.
SECTION 12 LIABILITY
1. In all cases of contractual and non-contractual liability bluekey shall only pay damages or compensate for wasted expenses:
a. in cases of intent, the full amount; in cases of gross negligence and in the absence of a characteristic for which bluekey has provided a guarantee, only to the amount of the foreseeable damage that the guarantee or breach of obligation was intended to prevent;
b. in other cases: only in the event of a breach of a material obligation, if such a breach endangers the purpose of the contract, but always limited to 100,000 EUR per claim, up to a total of 250,000 EUR for all claims arising from the contract;
2. The option to raise an objection concerning contributory negligence (e.g. from Section 5) shall remain open. The limitations of liability pursuant to Section 12.1 shall not apply to liability in respect of personal injury and liability pursuant to the Product Liability Act.
3. A limitation period of one year applies to all claims against bluekey for damages or compensation for wasted expenses in the event of contractual and non-contractual liability. This does not apply to liability in cases of intent or gross negligence or under the Product Liability Act, nor to claims for damage resulting from injury to life, body or health. The limitation period pursuant to sentence 1 begins on the date specified in Section 199.1 of the German Civil Code. It shall take effect no later than five years from the date on which the claim arises. The deviating limitation period for claims due to material defects and defects of title (Section 11.5 and 11.6) shall remain unaffected by the provisions of this paragraph.
SECTION 13: CONFIDENTIALITY AND DATA PROTECTION
1. The contracting parties undertake to treat the contents of the contracts concluded between them and all knowledge of confidential information and trade secrets of the other contracting party acquired in the course of the fulfillment of the contract as confidential for an unlimited period of time and to use them only within the scope of the fulfillment of the contract.
2. The Client may only make contractual objects accessible to employees and other third parties if this is necessary to exercise the right of use granted to the Client. In all other respects, the Client shall treat all contractual objects as confidential. The Client will inform all persons to whom it grants access to the contractual objects in writing of the copyright rights of SAP as well as the rights of bluekey (Section 9) to the contractual objects and the confidentiality requirement and oblige such persons in writing to comply with the duty of confidentiality.
3. The Client assures that all necessary conditions (e.g. by obtaining declarations of consent) have been met, so that bluekey is able to render the agreed services in this respect without contravening any of the provisions of the law on data protection.
4. The Client shall carefully store and safeguard the contractual objects – in particular any source programs and documentation provided to it – in order to prevent misuse.
5. bluekey observes the rules of data protection law. Insofar as bluekey gains access to the Client’s hardware and software (e.g. for remote maintenance), this is not for the purpose of commercial processing or use of personal data by bluekey. Rather, a transfer of personal data only happens in exceptional cases as a side effect of the contractual services of bluekey. With these personal data bluekey will proceed according to the regulations of the Federal Data Protection Act and the other relevant protection regulations.
6. bluekey is entitled to include the Client in its reference customer list.
SECTION 14: FINAL PROVISIONS
1. The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is Heidelberg, provided that the customer is a trader, a legal entity under public law or a special fund under public law.
2. German law applies exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Version August 2014