Softline Group // Terms

General terms and conditions

Updated: October 2013

1
General - Scope
1.1The following terms and conditions of Softline shall apply exclusively; conflicting or deviating terms and conditions of the Customer’s shall not be recognized by Softline unless Softline has expressly agreed to their validity in writing. These terms and conditions shall also apply in the event that Softline executes contracts without reservation in the knowledge of the Customer’s confliction terms and conditions or those deviating from these terms and conditions.
1.2All agreements made between Softline and the Customer regarding the execution of a contract must be set out in writing. This shall also apply to the waiving of this requirement for written agreement.
1.3These terms and conditions shall also apply to all future transactions with the Customer.
1.4Should any part of these terms and conditions be or become partially invalid, the validity of the remaining provisions shall not be affected. Should an invalid provision affect an ongoing contractual relationship, the parties shall replace the invalid provision with a valid provision that most closely approximates the intended economic effect and the purpose of this contract.
2
Subject of the contract, settlement of the contract
2.1The specification of services shall determine which services are to be provided by Softline in detail.
2.2For the delivery of individual (or several) services in accordance with their respective contract, the customer activates a written service contract, which includes contact information, as well as agreed content and the scope of the contract. Services to be performed according to the schedule shall be agreed upon before the services begin and shall be entered in the performance record.
2.3If services are delivered individually, the customer shall confirm the delivery and/or immediately declare their release upon completion of individual phases of work (Milestones); furthermore, final acceptance of a phase of work or declaration of completed delivery shall occur within a reasonable time period following completion/provision of services. The respective release deadlines shall be set individually in terms of the provision of services.
2.4As part of the provision of their services, Softline shall be responsible for ensuring that work carried out satisfies its contractually intended goals. If Softline provides results-oriented services within the scope of the operations set out in the respective contract, the rules governing work performance shall apply mutatis mutandis, wherein Softline shall be preferentially entitled to the removal of defects, and the limitation period for liability of defects shall be set at one year. The Customer shall only be entitled to additional rights if they have laid out a reasonable grace period for the removal of defects specifying the defect (yet) to be corrected upon the completion of an attempted removal of the defect by Softline.
3
Financial accounting, contract value
3.1Softline shall keep daily/hourly pro rata or material-related records of services provided, which shall be shown to the project manager authorized by the Customer, or their representative, for approval (performance record) and this shall accompany their invoices. The signed performance record shall form the basis for compensation. The performance record may also be computerized or maintained in a similar manner.
3.2Financial accounting should be carried out using performance time sheets unless otherwise agreed and shall be done monthly and retroactively for the previous completed month, or, for services not regularly rendered, upon provision of the respective service.
3.3Travel time, travel costs and incidental expenses shall not be included in the service prices and shall be paid separately.
3.4All prices shall be quoted in euros each plus the appropriate value-added tax at the statutory rate at the time of invoicing. If fees or customs duties are raised on the delivery or services due to transnational delivery, these shall be borne by the Customer.
3.5Unless otherwise agreed in individual cases, the date of payment for the Customer shall be 14 days following the receipt of the invoice, as stipulated in this contract.
3.6The Customer shall be informed of planned changes to the contract value by Softline no later than 8 weeks before coming into effect. Upon receipt of the notification of the price adjustment, the Customer shall be entitled to terminate this contract with a notice period of 14 days from the date of the planned entry into force. Softline’s observation of this notice period is contingent on receiving the Customer’s declaration of intent.
4
Customer rights and obligations
4.1The Customer shall take all necessary measures to provide employees of Softline with the ability to work at their respective data processing units. This shall particularly include regulations providing for access to the premises, access to hardware and software, and setting up all necessary network accounts.
4.2To ensure successful execution of a project, it is essential that the Customer provide for the delivery of materials (e.g. condition analysis of data processing equipment, documentation, technical information, etc.) and provision of other services (e.g. work station and necessary means of communication for on-site use, access to data processing units, system downtime, etc.). It is particularly essential that such materials and/or provisions be made available for the project in a timely manner during the contract period, and that they be provided by the Customer to Softline immediately upon request.
4.3Intensive Customer involvement is necessary for a successful execution of the contract. It is particularly essential for the contact person named on behalf of the Customer, or their representative, to always be available for the project during the contract period. Upon request, the Customer shall provide other people whose availability, dependent on requirements, is essential for the smooth execution of the contract.
4.4Softline shall have the right, together with the Customer, to perform evaluations of the services provided in cooperation in the interest of providing high quality service, in which the Customer, or their respective employee representative, shall participate.
5
Rights and obligations of Softline AG
5.1Softline shall have the right to transfer the execution of its work completely or partially to third parties. However, in relation to the contracting party, Softline must still fulfill its obligations imposed by the contract. In individual cases, if the Customer submits a claim a legitimate objection to the engagement of a subcontractor, Softline shall endeavor to carry out the work performed or yet to be performed by the rejected subcontractor either itself or through the engagement of another subcontractor.
5.2The third party (subcontractor) used by Softline with the Customer shall be employed as an independent contractor for Softline. They shall in no way be engaged in a contractual relationship with the Customer. Division of labor, type and all other significant characteristics of employment, as well as any new arrangements shall be agreed directly between the Customer and Softline, with Softline taking into consideration the Customer’s wishes and the particular conditions set out in this contract. Softline and/or third parties used by Softline are not subject to the Customer’s decisional or managerial authority. However, the Customer’s technical guidelines must be observed, insofar as they are required for the proper execution of the contract.
6
Intellectual property
6.1All copyrighted rights of use, other rights or industrial property rights in existence prior to the awarding of the contract shall remain the sole intellectual property of their respective owner(s). In terms of the provision of services, however, the rights of use necessary for the scope of services specified in this contract shall be transferred to the respective other contractual party, which requires this right for the execution of its services or contractually agreed use, for the duration required in the form of a non-exclusive right of use. This shall apply in Softline’s favor, especially for software installed on systems or data processing units relating to Softline’s services in accordance with these conditions.
6.2Unless otherwise specified, Softline are exclusively entitled to all proprietary rights of use and other rights and industrial property rights for any performance results (including the right to register patents, design rights or brand names) that may arise during the process of executing the contract. However, insofar as is necessary for the execution of the respective contract or for the use of a performance result based on the respective contract, Softline shall transfer a simple, non-exclusive right to use the respective performance result to the Customer, limited to the duration of this contract but spatially unrestricted, without separate compensation as such compensation is satisfied with the payment of the fees agreed.
7
Data management / data protection
7.1Service-related or Customer-related data accrued or developed by Softline during the project shall be stored on and processed by its servers or other data processing units. The Customer shall expressly consent to this.
7.2The Customer shall undertake to secure the required declarations of consent for the storage and use of third parties’ personal data that has been saved on Softline’s data processing units and transferred from them to Softline in accordance with the corresponding laws. This shall particularly apply to the personal data of users of data processing units in respect of which Softline provides services in accordance with these conditions.
7.3In terms of executing the contract, Softline and its subcontractors shall have access to the data processing units’ data and – where necessary – to the Customer’s networks; these parties shall undertake to maintain the confidentiality required for access as well as of the data stored, and not to relay this information to third parties or even within their own company.
7.4However, once the contract has been terminated, Softline shall maintain the right to retain project data on Softline’s data processing units for a period of 6 months. After this period, however, Softline shall be entitled – to the extent that it is legally required to archive data – to retain this data up until the expiration of the archiving requirements.
7.5Softline and its subcontractors are bound by the data protection provisions set out in § 5 of the Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG)).
8
Confidentiality
8.1Each party ("Recipient") shall acknowledge that all confidential information (verbal, written or digital information) that it receives from the other party (“disclosing or other party”) in connection with this contract (before or after the contract comes into effect), including, but not limited to, all intellectual property, software, computer code (object or source code), algorithms, procedures, ideas, concepts, inventions (patentable or unpatentable inventions), know-how, technical information, technical drawings, development tools, techniques and all other business, product, research, development, technical and financial information (“confidential information”) is a matter of utmost confidentiality with regard to the other (disclosing) party’s information.
8.2The Recipient shall undertake to
  1. treat the confidential information of the other party as confidential and not disclose it to any third party without the prior written consent of the disclosing party;
  2. to use the disclosing party’s confidential information only to the extent necessary for the fulfillment of its obligations under this contract;
  3. to limit access to the other party’s confidential information to their employees and contracting parties who require knowledge thereof for the purposes of this contract, provided that such employees and contractors have agreed in writing to uphold reasonable confidentiality. Unless otherwise expressly provided in this contract, no provision of this contract shall grant one party certain intellectual property rights of the other party or certain rights to confidential information to the other party.
8.3In accordance with the section here titled “Confidentiality”, the Recipient shall not be subject to any obligations with respect to information for which the Recipient can demonstrate that
  1. this information has been in the Recipient’s lawful possession and, upon receipt of the information from the other party, no duty of confidentiality existed, which must be made apparent from the Recipient’s documents and records immediately prior to its transfer;
  2. this information is generally known or will become generally known to particular industries on a non-confidential basis without any action or neglect on the part of the Recipient;
  3. they were lawfully relayed to the Recipient by a third party, without any restrictions with respect to disclosure;
  4. the information has been expressly released by the other party in writing. The Recipient may use or disclose the other party’s confidential information inasmuch as is required for compliance with applicable governmental regulations or court decisions, with the proviso that the Recipient appropriately inform the other party in advance of such a disclosure and undertakes reasonable efforts to guarantee the other party’s confidential information is handled confidentially and that only the minimum amount of information necessary will be disclosed in order to meet the requirements.
8.4The Recipient shall agrees to inform the other party in writing of any misuse, unauthorized disclosure or wrongful use of that party’s confidential information immediately after the Recipient has gained knowledge of misuse, unauthorized disclosure or other wrongful use.
8.5The aforementioned stipulations shall also apply with respect to one of the party’s data disclosed to third parties under this contract.
9
Liability
9.1In the case of gross negligence or willful misconduct, Softline shall adhere to legal regulations; the liability limitations below shall not apply in these cases.
9.2In the case of simple negligence, to the extent that an essential contractual obligation has been breached or there is a case of impossibility or delays, liability for damages not caused by injury to life or limb shall be limited to those damages that were predictable upon the conclusion of the contract and in the normal course of the contract. In other cases of simple negligence, liability shall be limited to direct damages, particularly restoration costs.
9.3Liability for all cases of simple negligence (paragraph 2) shall be limited to the amount paid by Softline’s company liability insurance; in cases of gross negligence and willful misconduct (paragraph 1), the contracting party may be referred to the benefits provided by Softline’s company liability insurance as a matter of priority. The insurance shall cover a flat rate of 3,000,000.00 EUR for personal injuries and material damages and 250,000.00 EUR for financial losses per claim. At their own expense, Softline shall maintain insurance coverage for the amount specified above during respective term of the contract.
9.4Softline shall be only be liable to the Customer or any third party in cases of willful misconduct or gross negligence, regardless of whether that third party is affiliated with the Customer, for all collateral losses or damages resulting directly or indirectly from the rights and obligations granted in accordance with this contract.
9.5The limitations of liability agreed shall apply even in the case of the Softline’s or its subcontractors’/suppliers’ initial incapacity, in which case liability is limited to the amount paid by Softline’s company liability insurance (see above, paragraph 3). The aforementioned limitations shall apply in cases of simple negligence, even in favor of employees and other Softline personnel, as well as for the benefit of Softline’s subcontractors/suppliers.
9.6The Customer shall be aware that they must provide for the regular backup of data in particular as part of their duty of care and, in the case of a suspected error, must take every reasonable additional safeguard.
9.7Furthermore, claims for damages against Softline Solutions due to faulty software shall be excluded, unless
  1. the software in question was purchased by the Customer from Softline Solutions and developed by Softline Solutions, installed by Softline Solutions and maintained within the scope of the respective project or
  2. Softline Solutions may file a claim against the manufacturer or supplier and these are legally awarded to Softline Solutions judicially or extrajudicially.
9.8Softline shall assume no liability for data that is lost or otherwise rendered unusable due to incorrect use or operation, repair or improper interference by third parties, damages, battery problems, software failures, or any other reasons not attributed to Softline.
9.9However, the aforementioned limitations of liability set forth in the above paragraphs shall not restrict statutory claims under the Product Liability Act (Produkthaftungsgesetz). Liability for damages arising from injury to life, body or health, based on a negligent breach of duty by Softline or an intentional or negligent breach of duty by a legal representative or vicarious agent of Softline shall not be affected by the aforementioned limitations of liability. The liability for guarantees shall not be limited, provided that the guarantee was specifically intended to protect the Customer from damages incurred.
10
Retention of title
10.1Softline shall retain the title to the object of the contract until such time as all payments specified in the contract have been received. In the case of a breach of contract by the Customer, particularly in the case of default, Softline shall be entitled to withdraw the contract and withhold parts of the object of the contract that have not yet been delivered. The taking back of the object of the contract by Softline shall not constitute withdrawal from the contract unless Softline has expressly declared this in writing. The seizure of the contractual object by Softline shall always constitute a withdrawal from the contract. After the object of the contract has been taken back, Softline shall be entitled to utilize it and offset the proceeds thereof against the liabilities of the customer minus the actual costs of utilization.
10.2The Customer shall undertake to notify Softline immediately in case of seizure or other interventions by third parties so that Softline may take legal actions pursuant to § 771 of the Code of Civil Procedure (Zivilprozeßordnung (ZPO)). If the third party is not able to reimburse Softline for the judicial and extrajudicial costs of a successful suit pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by Softline.
10.3The Customer shall be entitled to sell the object of the contract in the ordinary course of business; however, the Customer shall herewith assign to Softline all claims due to them by the purchaser or third parties as a result of the resale, which shall be deducted from the outstanding balance (including value-added tax) and, what is more, regardless of whether the object of the contract has been resold without or after processing. The Customer shall remain authorized to collect these claims after assigning them to Softline. Softline’s authority to collect the claims themselves shall not be affected by this. However, Softline shall undertake not to collect these claims so long as the Customer meets their payment obligations from the proceeds collected, does not default in payment and, in particular, has not filed a petition to open insolvency proceedings, and payments have not been suspended. However, if this is the case, Softline may demand that the Customer informs Softline of the assigned claims and the debtors, that they provide all information and relevant documents necessary for Softline to assert their rights, and that they inform the debtors (third parties) of the assignment.
10.4Processing or reorganization of the object of the contract by the Customer shall always be carried out for Softline. Should the object of the contract be processed in conjunction with items other than those considered property of Softline, Softline shall acquire the joint title to the new object proportionate to the value of the object of the contract vis-à-vis the value of the other items processed at the time of processing. Furthermore, the provisions applicable to the objects of the contract delivered under reserve shall be the same for those objects resulting from processing.
10.5Should the object of the contract be mixed with items other than those considered property of Softline, Softline shall acquire the joint title to the new object proportionate to the value of the object of the contract vis-à-vis the value of the other items combined at the time of mixing. If the mixing is carried out in such a way that the Customer’s object may be regarded as the main object, it shall be agreed that the contractor shall assign co-ownership to Softline on a pro rata basis. The Customer shall then retain the resultant sole ownership or co-ownership on behalf of Softline.
10.6Softline shall undertake to release the securities due to Softline at the Customer’s request, insofar as the value of the securities exceeds the secured claims by more than 20%; the selection of securities released shall be at the discretion of Softline.
11
Final provisions
11.1Impediments to provision of services, delivery and acceptance as a result of natural disaster, war, labor disputes, insufficient supply of raw materials or other cases of force majeure by Softline or its affiliate company or companies entrusted with the execution of subcontracts, as well as by official order or due to other circumstances whose prevention is not within the power of the parties to this contract or which may not be prevented or compensated for by means of adequate expenditure in technical or economic terms shall release the Customer from their contractual obligations specified in this contract for the duration of the event. The contractual party prevented from fulfilling the contract shall undertake to immediately inform the other contractual party, stating the circumstances preventing it from fulfilling the contract; furthermore, they shall do everything within their power and take every viable economic option to overcome the obstacle to performance or acceptance as quickly as possible.
11.2Written form shall be understood within the terms of these conditions to include written communication via email, fax and letters.
11.3This contract shall be subject to the laws of the Federal Republic of Germany, with the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law being excluded. The jurisdiction for all disputes arising from this contract, including its appendices, shall be Munich if the Customer is a company (in the nature of the performance of its business activities), a businessman or a special fund under public law.