Offers, deliveries and services are provided exclusively on the basis of these GTC. They replace all previous contractual conditions in force between the parties.
Furthermore, additional provisions apply to certain services:
a) Software licence agreement for the use of the licence material listed in the offer/order confirmation.
b) Service subscription agreement for additional services in connection with the licence material.
By countersigning the offer/order confirmation of Triviso by the Customer, it becomes a contract (hereinafter referred to as individual contracts). Each condition stated in this contract (reference to contractual provisions on the website, attachments, etc.) shall form an integral part thereof.
Any agreements deviating from these GTC must be in writing and mutually signed in order to be valid.
Triviso undertakes to provide the services signed in the respective individual contracts in accordance with the contract. For this purpose, it shall deploy employees of its own choice. Personnel requests of the customer will be taken into account wherever possible.
In the event of poor quality or for other important reasons that make proper fulfilment of the contract impossible or excessively difficult, Triviso shall replace employees as soon as this is possible in the normal course of business. Any resulting expenses shall be charged by Triviso. The rates applicable to the new employees shall apply.
Insofar as Triviso has entered into deadline obligations in accordance with individual contracts, Triviso reserves the right to delay deadlines due to circumstances for which Triviso is not responsible, such as in particular
a) subsequent changes or additions to the service description,
b) Delays in the work of Triviso GmbH by the customer or third parties.
In the event of delays for which Triviso is responsible, the parties shall agree on an adjustment of the schedule. If such an agreement is not reached, the Customer shall be entitled to set Triviso a reasonable grace period. If this grace period is also not met, the Customer may terminate the contract prematurely. In this case, Triviso shall refund any advance payments already made. Triviso is not obliged to provide further services (e.g. compensation for damages).
Insofar as services of third parties (third-party services) are provided for in the individual contracts, Triviso shall procure such third parties or enter into corresponding contracts with third-party suppliers itself. However, Triviso reserves the right to provide 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 mentioned in the individual contracts.
The Customer shall provide Triviso with all documents that are necessary or useful for the provision of the contractually owed services, regardless of whether such documents are specified in the individual contracts. The Customer shall also provide the necessary or useful material, in particular hardware, data carriers, basic programmes and test data. If services are to be provided by Triviso on the Customer's premises, the premises must be suitable for the corresponding services and must be made available in good time.
The Customer shall provide the personnel required for the operation of its systems and for the fulfilment of the contract. The Customer shall ensure that the cooperation with Triviso is always guaranteed as required for the fulfilment of the contract. The Customer undertakes to follow the instructions of Triviso's employees insofar as they are given in connection with the fulfilment of the Contract.
Services are invoiced on a time and material basis at the rates specified in the individual contracts. Deviating regulations may be stipulated. In the event of subsequent changes to the contractual services, Triviso may demand invoicing on a time and material basis.
The prices do not include the currently applicable statutory taxes and duties.
In case of a contract period of more than fifteen months, Triviso shall be entitled to adjust the prices to changes in personnel costs.
The following surcharges will be added to the regular rate for services that must be provided outside normal office hours at the express request of the customer:
a) Weekdays between 19:00 and 22:00 + 25 %
b) Saturdays + 50 %
c) Sundays and at night between 22:00 and 06:00 + 100 %
Unless otherwise specified in the individual contracts, deliveries and services shall be invoiced as follows:
Invoices on account upon conclusion of the contract are payable strictly net within 10 days, other invoices strictly net within 30 days. Offsetting against credit balances is excluded. Any objections to invoices must be notified to Triviso within seven working days. Thereafter, the invoices shall be deemed approved.
If the customer is in default of payment, Triviso GmbH shall be entitled to charge interest on arrears in the amount of 2.5 % plus the base interest rate monthly from the due date without further reminders. In the event of a delay of more than one month, Triviso is also entitled, after setting a grace period of eight days, to demand advance payments for further services or to withdraw from the contract without compensation. In the event of cancellation, the services rendered shall be invoiced on a time and material basis.
A contract concluded in accordance with paragraph 1.3 is valid until its fulfilment or premature termination.
The contract is fulfilled when Triviso has provided the services described in the individual contracts, taking into account any modifications. The Customer is obliged to test services immediately upon receipt and to notify Triviso immediately in writing of any recognisable errors. If no written complaint is received within 14 days of the provision of the service, the service shall be deemed to have been provided. Alternatively, the contractual services may also be accepted.
They shall be tacitly renewed if they are not cancelled by one of the parties by registered letter at the end of a month with two months' notice.
Service contracts may be cancelled by either party by registered letter with two months' notice to the end of any month. Contracts with a predetermined contract or minimum duration are reserved.
If the customer cancels a contract without justification outside of the intended cancellation period, Triviso GmbH shall be entitled to invoice the presumed expenses up to the next possible cancellation date. Triviso is entitled to unilaterally terminate service contracts by registered letter if
a) the customer does not fulfil his obligations necessary for the fulfilment of the contract despite two reminders, in particular in the event of a lack of cooperation, refusal to provide documents, refusal of third-party suppliers,
b) the Customer refuses to concretise the service description despite two reminders from Triviso,
c) the customer is in arrears with payments,
d) the customer is insolvent or bankruptcy proceedings are opened against him.
In the event of premature cancellation of the contract, the customer is obliged to return documents and records relating to contractual services that have not yet been accepted.
Irrespective of the termination of service contracts, the provisions between the parties concerning
a) the assumption of obligations from contracts with third-party suppliers (paragraph 2.4)
b) the rights to the work results (paragraph 8),
c) Infringement of third-party property rights
d) Confidentiality obligations (paragraph 9),
e) Enticement of employees (paragraph 10)
Triviso shall only 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, delay or infringement of intellectual property rights, if such damages were demonstrably caused by gross negligence or intent on the part of Triviso. In the event that an auxiliary person is engaged for the support service, Triviso shall only be liable for the careful selection of such auxiliary person.
Triviso expressly rejects any liability for damages incurred by the Customer in connection with the deployment and use of the Devices and the Licensed Material and the results achieved thereby, in particular for loss of profit, unrealised savings, additional expenses or third-party claims.
Triviso shall not be liable for the results of services to be provided by Triviso. Likewise, Triviso shall not be liable if Triviso is prevented from the timely or proper fulfilment 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 any case be limited to 30 % of the invoice amount, up to a maximum of EUR 50,000.00.
The rights of use of work results shall be transferred to the customer upon full payment of the services. The duty of confidentiality remains reserved in all cases (paragraph 9).
Property rights to work results (in particular to programmes and programme documentation) such as patent rights and copyrights shall remain with Triviso, unless the individual contracts provide otherwise. In particular, in the case of adaptations to existing software modules and software objects, the full ownership and exploitation rights shall remain with the Provider. In all cases, the contracting parties grant each other the right to use the work results in accordance with paragraph 8.1.
In any case, 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 the Customer's employees were involved in the development.
The contracting parties mutually undertake to treat as confidential all information which is not generally known and which they learn in the performance of the services under this contract, not to make it accessible to third parties either 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 customer, etc.
The Customer undertakes neither to employ Triviso employees nor to allow them to work for it directly or indirectly outside the contracts concluded with Triviso GmbH. This shall also apply if employees of Triviso apply for employment with the Customer. This waiver shall apply for the entire term of the contract and for twelve months after fulfilment or premature termination of the contract.
Triviso reserves the right to amend these GTC at any time. Changes will be communicated to the customer in writing and shall be deemed accepted if no written objection is raised within one month.
Both parties transfer the rights and obligations arising from this contract to any legal successors.
Offers from Triviso will be maintained for two months unless otherwise agreed.
The invalidity or legal non-binding nature of individual provisions of the agreement shall not affect the validity of the agreement and its remaining provisions. Void or invalid provisions shall be replaced by valid provisions that come closest to the intended meaning and purpose.
This contract is subject to German law.
The contracting parties undertake to exhaust all possibilities of arbitration in the event of a legal dispute in connection with this contract.
The place of jurisdiction is Freiburg.
Freiburg, January 2018
