Offers, deliveries and services are provided exclusively on the basis of these terms and conditions. They replace all previous contractual terms and conditions in force between the parties.
Furthermore, additional provisions apply to certain services:
a) Software Licence Agreement for the use of the licensed materials as itemised in the quotation/order confirmation.
b) Service contract for additional services in connection with the licensed material.
By countersigning the offer/order confirmation from Triviso, the customer enters into a contract (hereinafter referred to as individual contracts). Every condition listed in this contract (reference to contractual provisions on the website, addenda, etc.) is an integral part thereof.
Agreements deviating from these T&Cs require written form and mutual signature to be valid.
Triviso undertakes to provide the services agreed in the respective individual contracts in accordance with the contract. To this end, it assigns employees of its own choosing. The client's personnel requests will be accommodated where possible.
In cases of poor quality or other important reasons which make proper contract fulfilment impossible or unreasonably difficult, Triviso will replace employees as soon as this is possible in the normal course of business. Any resulting expenses will be settled by Triviso. The rates applicable to the new employees shall apply.
Unless Triviso has entered into deadline commitments under individual contracts, **delays due to circumstances for which Triviso is not responsible remain reserved**, such as in particular:
a) subsequent amendments or additions to the service description,
b) Delays to the work of Triviso GmbH caused by the customer or third parties.
In the event of delays attributable to Triviso, the parties shall agree on an adjustment to the schedule of works. If no such agreement is reached, the Client shall be entitled to set Triviso a reasonable grace period. If this grace period is also not observed, the Client may terminate the contract prematurely. In this case, Triviso shall refund any advance payments already made. Triviso shall not be obliged to provide further services (e.g. damages).
Where third-party services (third-party services) are provided for in the individual contracts, Triviso shall arrange for such third parties or enter into corresponding contracts with third-party suppliers itself. However, Triviso reserves the right to provide the services designated as third-party services in the individual contracts itself.
The costs for expenses, postage, data carriers, and other accessories are not included in the purchase price, unless expressly stated in the individual contracts.
The client provides Triviso with all documentation that is necessary or useful for the provision of the contractually agreed services, regardless of whether such documentation is specified in the individual contracts. Likewise, the client provides the necessary or useful material, such as hardware, data storage media, basic software and test data in particular. If services are to be provided by Triviso on the client's premises, the premises must be suitable for the respective services and made available in good time.
The customer provides the personnel necessary for the operation of its facilities and for the fulfilment of the contract. It ensures that cooperation with Triviso is always guaranteed as required for the fulfilment of the contract. The customer undertakes to follow the instructions of Triviso employees, insofar as they relate to the fulfilment of the contract.
Services will be charged according to expenditure at the rates listed in the individual contracts. Deviating agreements can be made. If the contractual services are subsequently changed, Triviso may demand billing according to expenditure.
Prices are exclusive of applicable statutory taxes and duties.
For a contract duration of more than fifteen months, Triviso is entitled to adjust prices in line with changes in personnel costs.
For services that must be performed outside normal office hours at the customer's express request, the following surcharges will be charged at the standard rate:
a) Weekdays between 19:00 and 22:00 + 25 %
b) Saturdays + 50 %
c) Sundays and at night between 10:00 PM and 6:00 AM + 100 %
Deliveries and services will be invoiced as follows, unless otherwise specified in the individual contracts:
Invoices at contract conclusion are strictly net within 10 days, other invoices strictly net within 30 days. Set-off against credit balances is excluded. Any objections to invoices must be communicated to Triviso within seven working days. Thereafter, invoices are considered approved.
In the event of the customer's late payment, Triviso GmbH is entitled to charge default interest at a rate of 2.5 % above the base interest rate monthly from the due date, without further reminders. If payment is delayed by more than one month, Triviso is also entitled to demand advance payments for further services or to withdraw from the contract without compensation, after setting a grace period of eight days. In the event of withdrawal, services rendered will be invoiced according to expenditure.
A contract concluded in accordance with paragraph 1.3 shall be valid until its fulfilment or early termination.
The contract is fulfilled when Triviso has rendered the services described in the individual contracts, taking into account any modifications. The customer is obliged to test the services immediately upon receipt and to notify Triviso in writing of any discernible defects without delay. If no written complaint is received within 14 days of the service being rendered, the service shall be deemed to have been rendered. Alternatively, the contract services may be accepted.
They are automatically extended by silence unless terminated by one of the parties by registered letter at the end of a month with two months' notice.
Service contracts can be terminated by either party by registered letter, observing a two-month notice period at the end of each month. Contracts with a predetermined contract or minimum duration are reserved.
If the customer terminates a contract without valid grounds outside of the stipulated notice period, Triviso GmbH is entitled to charge for the presumed expenditure up to the next possible termination date. Triviso is entitled to unilaterally terminate service contracts by registered letter if
a) the customer fails to fulfil their obligations necessary for the performance of the contract, despite being reminded twice, particularly in cases of a lack of cooperation, refusal to provide documentation, refusal of third-party suppliers,
b) the customer refuses to provide the clarifications to the service description deemed necessary by Triviso, despite being reminded twice,
c) the customer is in arrears with payments,
d) the customer is insolvent or insolvency proceedings are opened against them.
The customer is obliged to return documents and records relating to contract services that have not yet been accepted in the event of early contract termination.
Notwithstanding the termination of service agreements, the provisions regarding [insert relevant provisions here] shall remain in force between the parties.
a) taking on obligations from contracts with third-party suppliers (paragraph 2.4)
b) the rights to the work product (paragraph 8),
c) Infringement of third-party property rights
d) Confidentiality obligations (paragraph 9),
e) Employee poaching (paragraph 10)
Triviso shall be liable for direct damages incurred by the customer in connection with the fulfilment of the contract, e.g. due to non-performance, breach of duty of care, default or infringement of protective rights, only if such damages have been demonstrably caused by Triviso through gross negligence or intent. In the event that an auxiliary person is engaged for the support service, Triviso shall only be liable for their careful selection.
Triviso expressly disclaims any liability for damages incurred by the customer in connection with the use and utilisation of the equipment and licensed material, and for the results thereby achieved, in particular for loss of profit, unrealised savings, additional expenses, or third-party claims.
No warranty is given for results to be provided by Triviso. Likewise, there is no liability if Triviso is prevented from timely or proper performance of services for reasons for which it is not responsible. In particular, the customer is responsible for the necessary security measures to protect the stored data.
Any liability of Triviso shall in all cases be limited in amount to % of the invoiced amount, but not exceeding EUR 50,000.00.
The usage rights for the work product shall pass to the client upon full payment for the services. The duty of confidentiality (paragraph 9) shall remain reserved in all cases.
Intellectual property rights for work results (particularly for programmes and programme documentation) such as patent and copyright remain with Triviso, unless individual contracts stipulate otherwise. In particular, full ownership and exploitation rights for adjustments to existing software modules and software objects remain with the provider. In all cases, the contracting parties grant each other the right to use the work results within the meaning of paragraph 8.1.
In all cases, Triviso reserves the right to reuse ideas, software concepts and procedures developed during the fulfilment of a contract at any time, subject to the confidentiality obligation (paragraph 9). This right applies regardless of whether customer employees were involved in the developments.
The contracting parties mutually undertake to treat all information not generally known, which they acquire in the course of performing the services under this contract, as confidential, to grant neither third parties access to it in whole or in part, nor to publish it. This applies in particular to written information such as specifications, detailed concepts, product-specific documents of the client, etc.
The customer undertakes not to hire Triviso employees, nor to engage them directly or indirectly outside of the contracts concluded with Triviso GmbH. This also applies if Triviso employees apply for positions with the customer. This waiver applies for the entire contract duration as well as for twelve months after contract fulfillment or premature contract termination.
Triviso reserves the right to change these terms and conditions at any time. Changes will be communicated to the customer in writing and are considered accepted unless objected to in writing within one month.
Both parties transfer the rights and obligations arising from this agreement to any successors in title.
Offers from Triviso are valid for two months without deviation from the terms and conditions.
The invalidity or legal unenforceability of individual provisions of the contract shall not affect the validity of the agreement and its remaining provisions. Invalid or unenforceable provisions shall be replaced by valid ones that most closely approximate the intended sense and purpose.
This contract is subject to German law.
The contracting parties undertake to exhaust all possibilities of conciliation in the event of a legal dispute related to this contract.
The place of jurisdiction is Freiburg.
Freiburg, January 2018
