TERMS

Terms of Service

General Terms and Conditions (GTC)

The products and services of the white duck Gesellschaft für Softwareentwicklung mbH are executed on the basis of the TERMS and conditions of BITKOM in version 2.1 (from 24.05.2018).
These terms and conditions are based on recommendations of the Federal Association of Information Economy, Telecommunications and New Media (BITKOM) and thus create a solid legal basis for our customers for a fair cooperation.

Issued to: white duck Gesellschaft für Softwareentwicklung mbH
Published by: Bitkom Service Company mbH
Date: May 24, 2018

  1. Compensation, payment, performance protection, appointments
    1. Unless otherwise agreed, the remuneration will be calculated according to the costs at the generally valid prices of the provider at the time of conclusion of the contract. Compensation is in principle net prices plus statutory value added tax. The provider can settle monthly. If services are remunerated according to expenses, the provider documents the nature and duration of the activities and transmits this documentation with the invoice.
    2. In principle, all invoices must be paid without deduction at the latest 14 calendar days after receipt free of charge.
    3. Due to defects, the customer can only offset or withhold payments if he is actually entitled to payment claims due to material or legal defects of the service. Due to other claims for defects, the customer can only withhold payments for a proportionate part of the defect. Clause 4.1 applies accordingly. The customer has no right of retention if his claim for defect is time-barred. In addition, the customer can only offset against undisputed or legally established claims or exercise a retention.
    4. The provider reserves the title and rights to be granted in the services until full payment of the remuneration owed, justified withholding of defects in accordance with clause 1.3. Sentence 2 is taken into account. Furthermore, the provider reserves the title until all his claims arising from the business relationship with the customer have been fulfilled. The provider is entitled to prohibit the customer from continuing to use the services for the duration of a delay in payment. The provider can only exercise this right for a reasonable period of time, usually for a maximum of 6 months. This does not include a withdrawal from the contract. Section 449 para. 2 BGB remains unaffected. If the customer or his customer returns the services, the acceptance of the services shall not constitute a withdrawal of the supplier, unless he has expressly declared the withdrawal. The same applies to the attachment of the goods subject to retention of title or rights to the reserved goods by the supplier. The customer may neither pledge or transfer security of goods subject to ownership or legal reservation. The customer is only permitted as a reseller to resell in the ordinary course of business on the condition that the customer has effectively assigned his claims against his customers in connection with the resale and that the customer transfers the property to its customer subject to payment. Through the present conclusion of the contract, the customer assigns his future claims in connection with such disposals against his customers to the supplier, who hereby accepts this assignment. If the value of the provider’s security rights exceeds the amount of the secured claims by more than 20, the provider will release a corresponding share of the security rights at the customer’s request.
    5. The customer is obliged to impose on the recipient their contractually agreed restrictions in the event of an admissible transfer of rights of use to deliveries and services.
    6. If the customer does not balance a due claim in whole or in part on the contractual payment date, the provider may revoke agreed payment terms for all claims. The provider is also entitled to perform further services only against advance payment or against security by means of a guarantee of performance by a credit institution or credit insurer authorised in the European Union. The prepayment must include the respective billing period or, in the case of one-off benefits, their remuneration.
    7. In the event of the customer’s economic inability to fulfil his obligations towards the provider, the provider may terminate existing exchange agreements with the customer without notice by rescission, permanent obligations by termination, even in the event of an insolvency application by the Customers. Section 321 of the German Civil Code (BGB) and Section 112 Ofthe O remain unaffected. The customer will inform the provider in writing at an early stage of an impending insolvency.
  2. Cooperation, obligations to cooperate, confidentiality
    1. The customer and the provider each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contact persons. The contact persons shall bring about all decisions relating to the implementation of the contract without delay. The decisions must be documented in a binding manner.
    2. The customer is obliged to support the provider as far as necessary and to create all the prerequisites necessary for the proper execution of the order in his operating sphere. In particular, it will provide necessary information and, if possible, provide remote access to the customer system. Where remote access is not possible for security or other reasons, the time limits affected by this shall be extended appropriately; for further effects, the contracting parties will agree on an appropriate arrangement. The customer also ensures that expert staff is available to support the provider. Insofar as it is agreed in the contract that services can be provided on site at the customer’s premises, the customer shall provide sufficient jobs and work equipment free of charge at the request of the provider.
    3. Unless otherwise agreed, the customer will ensure proper data backup and failure prevention for data and components (e.g. hardware, software) that are appropriate in their nature and importance.
    4. The customer must immediately report defects in a comprehensible and detailed form, stating all relevant information for the detection and analysis of defects in writing. In particular, the steps which led to the occurrence of the deficiency, the appearance and the effects of the deficiency shall be indicated. Unless otherwise agreed, the relevant forms and procedures of the provider will be used for this purpose.
    5. The customer will provide the provider with appropriate upon request in the examination and assertion of claims against other parties in connection with the provision of services. This applies in particular to claims of recourse by the supplier against pre-suppliers.
    6. The contracting parties are obliged to maintain confidentiality about business and trade secrets as well as other information designated as confidential, which become known in connection with the execution of the contract. The disclosure of such information to persons who are not involved in the conclusion, execution or execution of the contract may only take place with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end after five years after the respective information has become known, but in the case of permanent obligations, it shall not end before its termination. The contracting parties will also impose these obligations on their employees and any third parties deployed.
    7. The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, therefore, they will not assert claims based on the lack of encryption, except in so far as encryption has been agreed beforehand.
  3. Disruptions in the provision of services
    1. If a cause for which the provider is not responsible, including a strike or lockout, impairs the termination (“disruption”), the dates shall be postponed by the duration of the disruption, including, if necessary, an appropriate Restart phase. A contracting party shall inform the other contracting party immediately of the cause of a disturbance in his area and the duration of the postponement.
    2. If the expense increases due to a fault, the provider can also demand the remuneration of the additional expenses, unless the customer is not responsible for the fault and the cause of this is outside his area of responsibility.
    3. If the customer can withdraw from the contract due to improper performance of the provider and / or claim or claim damages in place of the service, the customer will declare in writing, at the request of the provider, whether he asserts these rights or wishes to continue to provide the service within a reasonable period of time. In the event of withdrawal, the customer shall reimburse the supplier for the value of previously existing uses; the same applies to deterioration due to proper use. If the provider is in arrears with the provision of the service, the compensation for damages and expenses of the customer is limited to 0.5 of the price for the part of the contractual service, which is not used due to the delay can be used. The liability for delay is limited to a maximum of 5 of the remuneration for all contractual services affected by the delay; in the case of permanent obligations relating to the remuneration for the respective benefits concerned for the full calendar year. In addition and as a matter of priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply. This does not apply if a delay is due to gross negligence or intent on the part of the provider.
    4. In the event of a delay in the performance, the customer has a right of withdrawal within the scope of the statutory provisions only if the delay is the party responsible. If, because of the delay, the customer is entitled to claim compensation for damages or expenses instead of the performance, he is entitled to demand for each completed week of the delay 1 of the price for the part of the contractual service, which due to the delay is not can be used, but a maximum of 10 of this price; in the case of permanent obligations relating to the remuneration for the respective benefits concerned for the full calendar year. In addition and as a matter of priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply.
  4. Material defects and reimbursement of expenses
    1. The provider guarantees the contractually owed quality of the services. There are no claims due to material defects for a only insignificant deviation of the provider’s services from the contractual quality. Claims for defects also do not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible or otherwise detectable software errors or damage caused by due to special external influences that are not required by the contract. This also applies in the event of subsequent modification or repair by the customer or third parties, unless this does not complicate the analysis and the elimination of a material defect. Clause 6 applies to supplementary clause 6 for claims for damages and reimbursement of expenses.
    2. The limitation period for claims for material defect is one year from the commencement of the statutory limitation period. The statutory deadlines for recourse in accordance with Section 478 of the German Civil Code (BGB) remain unaffected. The same shall apply to the extent that the law in accordance with Section 438 para. 1 No. 2 or Section 634a para. 1 No. 2 of the German Civil Code (BGB) requires longer periods of time in the event of an intentional or grossly negligent breach of duty on the part of the provider, in the event of fraudulent concealment of a defect and in cases of injury to life, body or health, as well as for claims arising from the Product Liability Act. The processing of a material defect notice of the customer by the provider only leads to the suspension of the limitation period, insofar as the legal requirements for this are met. This does not mean a new start to the limitation period. Subsequent performance (new delivery or rectification) may have only an influence on the limitation period for the defect causing the subsequent performance.
    3. The provider may demand compensation for its expenses to the extent that
      1. he acts on the basis of a notification without a defect, unless the customer could not recognize with reasonable effort that there was no defect, or
      2. a reported fault is not reproducible or otherwise demonstrable by the customer as a defect, or
      3. additional expenses due to improper performance of the customer’s obligations (see also paragraphs 2.2, 2.3, 2.4 and 5.2).
  5. Defects in the law
    1. The provider shall only be liable for infringements of third-party rights due to its performance if the service is used unchanged in accordance with the contract and in particular in the contractually agreed, otherwise in the intended operating environment. The provider is only liable for infringements of third-party rights within the European Union and the European Economic Area as well as at the place of use of the service in accordance with the contract. Clause 4.1 sentence 1 applies accordingly.
    2. If a third party claims to the customer that a service of the provider violates his rights, the customer immediately notifies the provider. The supplier and, if applicable, its suppliers are entitled, but not obliged, to fend off the asserted claims at their own expense to the extent permissible. The customer is not entitled to recognize claims of third parties until he has given the provider an appropriate opportunity to defend the rights of third parties in any other way.
    3. If the rights of third parties are infringed by a service provided by the provider, the provider shall, at his own discretion and at his own expense,
      1. give the customer the right to use the service, or
      2. design the performance without injury, or
      3. withdraw the service with reimbursement of the remuneration paid by the customer (less a reasonable compensation for use) if the provider cannot achieve any other remedy with reasonable effort. The interests of the customer are duly taken into account.
    4. Claims of the customer due to defects of title shall be time-barred in accordance with clause 4.2. Clause 6 applies in addition to the customer’s claims for damages and reimbursement of expenses, and clause 4.3 applies accordingly to additional expenses of the provider.
  6. General liability of the provider
    1. The provider is always liable to the customer
      1. for the damage caused intentionally or through gross negligence by him and his legal representatives or vicarious agents,
      2. in accordance with the Product Liability Act and
      3. for damages resulting from injury to life, body or health, which the provider, his legal representatives or vicarious agents are responsible for.
    2. The provider shall not be liable in the event of slight negligence, unless he has breached an essential contractual obligation, the fulfilment of which enables the proper execution of the contract in the first place or whose violation jeopardises the achievement of the purpose of the contract. and on whose compliance the customer can regularly rely. In the case of damage to property and property, this liability is limited to the damage typical of the contract and foreseeable. This also applies to lost profits and missed savings. Liability for other remote consequential damages is excluded. For a single claim, liability is limited to the value of the contract, with current remuneration to the amount of the remuneration per contract year, but not to less than € 50,000. Clause 4.2 applies accordingly to the limitation period. The contracting parties may agree in writing on further liability, usually against a separate remuneration, at the time of conclusion of the contract. The priority is an individually agreed amount of liability. Liability in accordance with clause 6.1 remains unaffected by this paragraph. In addition and primarily, the liability of the provider due to slight negligence arising from the respective contract and its implementation for compensation for damages and expenses – irrespective of the legal basis – is in total limited to the percentage of the contract agreed in this contract. remuneration agreed upon at the time of conclusion of the contract. The liability in accordance with clause 6.1 (b) remains unaffected by this paragraph.
    3. From a guarantee declaration, the provider is only liable for damages if this has been expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations of clause 6.2.
    4. In the event of the necessary restoration of data or components (e.g. hardware, software), the provider is only liable for the effort required for the restoration with proper data backup and failure prevention by the customer. In the event of slight negligence on the part of the provider, this liability shall only occur if the customer has carried out a data backup and default prevention appropriate to the type of data and components prior to the incident. This does not apply to the extent that this is agreed as the service of the provider.
    5. Clauses 6.1 to 6.4 apply accordingly for claims for reimbursement of expenses and other liability claims of the customer against the provider. Paragraphs 3.3 and 3.4 remain unaffected.
  7. Privacy
    1. The customer will conclude agreements with the provider for the handling of personal data that are necessary under data protection law.
  8. Other
    1. The customer will observe the import and export regulations applicable for the deliveries or services on his own responsibility, in particular those of the USA. In the case of cross-border delivery or service, the customer shall bear any duties, fees and other charges incurred. The customer will handle legal or official procedures in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.
    2. German law applies. The application of the UN Convention on Contracts for the Convention on Contracts for the Purposes of the Un Convention on Contracts for the Purposes of the Un Convention on Contracts for
    3. The provider provides its services on the basis of its General Terms and Conditions (GTC). The customer’s terms and conditions do not apply, even if the provider has not expressly objected to them. Acceptance of the services by the customer shall be deemed to be recognition of the general terms and conditions of the provider, without waiving the customer’s general terms and conditions. Other conditions are only binding if the provider has acknowledged them in writing; in addition, the general terms and conditions of the provider apply.
    4. Changes and additions to this contract should only be agreed in writing. Insofar as written form has been agreed (e.g. for cancellations, withdrawal), text form is not sufficient.
    5. The place of jurisdiction against a merchant, a legal person under public law or a special fund under public law is the registered office of the provider. The provider may also sue the customer at its registered office.

Issued to: white duck Gesellschaft für Softwareentwicklung mbH
Published by: Bitkom Service Company mbH
Date: May 24, 2018

  1. Subject matter
    1. The provider provides the service in accordance with the terms and conditions agreed in the contract and below against the contractually agreed remuneration. The responsibility for project and success lies with the customer. The provider provides the service in accordance with the principles of proper professional conduct.
    2. The subject matter of the contract may consist of a one-off service, which can also be provided in parts, or may be long-term.
  2. Performance of the service
    1. The place of supply of services is the registered office of the provider, unless otherwise agreed.
    2. The provider provides the service through suitable employees. The customer is not entitled to the provision of services by certain employees of the provider.
    3. The provider determines the manner of the service, unless otherwise agreed.
    4. The customer is not authorised to issue instructions to the employees of the provider involved in the provision of the service.
    5. If the provider has to present the results of the service in writing, only the written presentation is decisive.
  3. Duties
    1. The customer shall ensure that the contact person designated by him provides the provider with the documents, information and data necessary for the provision of the service in full, correctly, on time and free of charge, unless the provider Owed. In addition, the customer ensures that they are updated. The provider may assume the completeness and correctness of these documents, information and data, unless he recognizes or must recognize that they are incomplete or inaccurate.
    2. For this purpose, the customer has to observe the provision of services by the provider.
  4. Rights
    1. In the case of the service results provided by the provider within the framework of the contract and handed over to the customer, he grants the customer the non-exclusive and non-transferable right to use these services for his own internal purposes within the scope of the contractually required use in the long term, unless otherwise agreed.
    2. In addition, all rights remain with the provider.
    3. The provider may withdraw rights of use granted to the customer if the customer does not insignificantly violate any restrictions on use or other regulations to protect against unauthorized use. The provider must first set a grace period for the customer to remedy the situation. In the event of repetition and in special circumstances which, weighing the interests of both parties, justify immediate withdrawal, the provider may withdraw the rights even without setting a time limit. The customer must confirm to the provider in writing the discontinuation of the use after withdrawal of the rights of use. The provider will re-grant the customer the rights to use after the customer has stated in writing and assured that his use will no longer infringe any violations of the provider’s rights and that previous violations and their consequences have been eliminated.
  5. Runtime
    1. If the contract is concluded for an indefinite period, it may be terminated with a period of 3 months at the end of a calendar year. For the first time, this termination is possible at the end of the calendar year following the conclusion of the contract. An agreed minimum term remains unaffected by this right of termination. This does not apply in each case, insofar as deviating information has been agreed.
    2. The right to extraordinary termination for good cause remains unaffected.
    3. Declarations of termination are only valid in writing.
    4. Withdrawal from the contract is excluded.
  6. Remuneration
    1. Unless otherwise agreed, the provider may increase the remuneration at the earliest 12 months after the conclusion of the contract if the increased remuneration corresponds to the current list price of the provider. Further increases may be made no earlier than 12 months after a previous increase takes effect. An increase will take effect 3 months after the announcement. The customer has the right to terminate if the remuneration rates increase by more than five percent. The customer may terminate within one month of receipt of the announcement at the time of effectiveness of such increase.
    2. Agreed proof sum of expenses shall be deemed to have been approved, unless the customer objects in detail in writing within 21 days of receipt and the provider has indicated the approval fiction in the proof of expenditure.
    3. Travel expenses and expenses as well as other expenses will be reimbursed according to the price list of the provider, unless otherwise agreed. Travel time is considered to be working time.
    4. The provider may demand compensation for its expenses insofar as additional expenses are due to incorrect fulfilment of the customer’s obligations (see clause 3).
  7. Performance disruptions
    1. If the service is not provided in accordance with the contract and the provider is responsible for this (disruption of performance), he is obliged to provide the service in whole or in part without additional costs for the customer within a reasonable period of time, unless: this is only possible with disproportionate effort. This obligation of the provider only exists if the customer complains of the performance disruption in writing and immediately, but at the latest by the expiry of two weeks after knowledge, unless otherwise agreed.
    2. Clause 6 of AV Bitkom shall apply to any claims for expenses and damages that may go beyond this.
  8. Application of AV Bitkom
    1. In addition, the General Terms and Conditions of Bitkom (AV Bitkom) apply.

Issued to: white duck Gesellschaft für Softwareentwicklung mbH
Published by: Bitkom Service Company mbH
Date: May 24, 2018

  1. Services
    1. The provider provides the contractual services, in particular access to the software, in its disposal area (from the interface data center to the Internet). The scope of services, the quality, the intended use and the conditions of use of the contractual services are the result of the respective service description, supplemented by the operating instructions of the software.
    2. Further services, such as the development of customer-specific solutions or necessary adjustments, require a separate contract.
    3. The vendor may provide updated versions of the software. The provider will inform the customer about updated versions and corresponding usage notices electronically and make them available accordingly.
  2. Scope of use
    1. The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services by means of telecommunications (via the Internet) and use a browser or other suitable application (e.g. “App”) to access the services associated with the software. functionalities in accordance with the contract. The customer does not receive any additional rights, in particular to the software or the infrastructure services provided in the respective data center. Any further use requires the prior written consent of the provider.
    2. In particular, the customer may not use the software beyond the agreed scope of use or have it used by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce, sell or transfer, rent or lend software or parts thereof for a limited period of time.
    3. The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract must not be affected more than insignificantly.
    4. In the event of a breach of the scope of use by a user or in the event of an unjustified use of the use, the customer shall, upon request, immediately provide the supplier with all available information for asserting the claims due to the use contrary to the contract, in particular to communicate the name and address of the user.
    5. The provider may revoke the customer’s right of access and/or terminate the contract if the customer significantly exceeds the use permitted for him or violates regulations to protect against unauthorized use. Related to this, the provider can interrupt or block access to the contractual services. In principle, the provider must set the customer a reasonable grace period for remedial action beforehand. The sole revocation of the access authorization does not also apply as termination of the contract. The provider can only maintain the revocation of the access authorization without notice for a reasonable period of time, a maximum of 3 months.
    6. The provider’s claim to remuneration for the use that goes beyond the agreed use remains unaffected.
    7. The customer is entitled to the right of access and the possibility of access after he has demonstrated that he has stopped the use contrary to the contract and has prevented future use contrary to the contract.
  3. Availability, performance defects
    1. The availability of the services provided is determined by the service description.
    2. In the event of a negligible reduction in the suitability of the services for contractual use, there are no claims of the customer due to defects. The provider’s liability for defects that were already present at the time of conclusion of the contract is excluded.
  4. Privacy
    1. Insofar as the provider can access the customer’s personal data or from the customer’s area, he will act exclusively as a processor and will only process and use this data for the execution of the contract. The provider will follow instructions from the customer for the handling of this data. The customer bears any adverse consequences of such instructions for the execution of the contract. The customer will agree with the provider the details for the supplier’s handling of the customer’s data in accordance with the data protection requirements.
    2. The customer remains the responsible person both generally in the contractual relationship and in the sense of data protection law. If the customer processes personal data (including collection and use) in connection with the contract, he is responsible for the fact that he is entitled to do so in accordance with the applicable, in particular data protection regulations, and in the event of a violation, the provider of third-party claims.
    3. The relationship between provider and customer applies: The data subject is responsible for the processing (including collection and use) of personal data of the customer, unless the provider claims any claims of the data subject on account of a breach of duty attributable to him. The customer will responsibly examine, process and respond to any requests, requests and claims of the data subject. This also applies if the data subject claims to use the provider. The provider will support the customer within the scope of his duties.
    4. The provider warrants that the customer’s data will be stored exclusively in the territory of the Federal Republic of Germany, in a Member State of the European Union or in another Contracting State of the Agreement on the European Economic Area, provided that nothing else is agreed upon.
  5. Customer’s obligations
    1. The customer must protect the access authorizations as well as identification and authentication information assigned to him or the users from access by third parties and not pass them on to unauthorized persons.
    2. The customer is obliged to insepend the provider of all claims of third parties due to infringements of the law, which are based on an illegal use of the object of the service by him or which take place with his approval. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to inform the provider immediately.
    3. The customer has to use the possibilities provided by the provider to secure his data in his original area of responsibility.
  6. Non-contractual use, damages
    1. In any case in which a contractual service is claimed without authorization in the customer’s area of responsibility, the customer shall pay compensation in the amount of the remuneration that is paid for the contractual use within the framework of the minimum duration of the contract would have been incurred. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no or a significantly lesser damage. The provider remains entitled to claim further damage.
  7. Fault management
    1. The provider will receive fault reports from the customer, assign them to the agreed fault categories (section 7.3) and carry out the agreed measures for the analysis and cleaning of faults on the basis of this assignment.
    2. During his normal business hours, the provider will receive proper fault reports from the customer and will provide an identification. At the customer’s request, the provider confirms that a fault report has been received by notifying him of the assigned identifier.
    3. Unless otherwise agreed, the provider will assign any incident reports received to one of the following categories after the first sighting:
      1. Serious fault: The fault is due to an error of the contractual services, which makes the use of the contractual services, in particular the software, impossible or allows only with serious restrictions. The customer cannot reasonably avoid this problem and therefore cannot perform unspecified tasks.
      2. Other fault: The fault is due to an error of the contractual services, which restricts the use of the contractual services, in particular the software, by the customer more than only insignificantly, without any serious disturbance available.
      3. Other notification of fault messages that do not enter the categories (a) and (b) are assigned to other notifications. Other notifications are dealt with by the provider only in accordance with the agreements made for this purpose.
    4. In the event of reports of serious faults and other disturbances, the provider shall immediately take appropriate measures, on the basis of the circumstances notified by the customer, in order to first locate the cause of the fault. If, according to the first analysis, the reported fault does not turn out to be an error in the contractual services, in particular the software provided, the provider shall inform the customer immediately. Otherwise, the provider will take appropriate measures to further analyse and correct the reported fault or, in the case of third-party software, the fault notification together with its analysis results will be taken by the distributor or manufacturer of the third-party software with the Request for remedial action. The provider will provide the customer with any measures available to him to circumvent or correct any defect in the contractual services, in particular the software provided, such as instructions for action or corrections of the provided software, immediately. The customer will immediately take over such measures to circumvent or clean up faults and immediately report any remaining faults to the provider when they are used.
  8. Contact point (hotline)
    1. Contractual services: The provider sets up a contact point for the customer (hotline). This agency handles the customer’s inquiries in connection with the technical requirements and conditions of use of the provided software as well as individual functional aspects.
    2. Acceptance and processing of enquiries The prerequisite for the acceptance and processing of enquiries is that the customer appoints professionally and technically appropriately qualified personnel to the provider, who internally assist satatatat at the customer with the processing of user enquiries of the provided software. The customer is obliged to send requests to the hotline only via this personnel named to the provider and to use forms provided by the provider. The hotline accepts such requests by e-mail, fax and telephone during the usual business hours of the provider. The hotline will process and respond to proper enquiries in the usual course of business. The hotline may refer to the customer for documentation and other training materials for the provided software. Insofar as an answer by the hotline is not possible or not in a timely manner, the provider will forward the request for processing, in particular requests for software not manufactured by him, insofar as this has been expressly agreed. Further services of the hotline, such as other call times and deadlines as well as on-call or on-site assignments of the provider at the customer are expressly agreed in advance.
  9. Contract term and termination of contract
    1. The contractually agreed services shall be provided from the date specified in the contract for the duration of the period agreed in the contract. During this minimum term, early ordinary termination on both sides is excluded.
    2. The contract may be terminated with a period of three months, at the earliest at the end of the minimum term. If this is not the case, the contract shall be renewed for a further year, unless it has been duly terminated with a period of 3 months at the end of the respective renewal period.
    3. The right of each contractual partner to extraordinary termination for important reasons remains unaffected.
    4. Any declaration of termination must be made in writing in order to be effective. Clause 8.4 AV Bitkom applies.
    5. The customer will secure his data assets on his own responsibility in good time before the termination of the contract (e.g. by downloading). On request, the provider will support the customer in this, section 4.3 AV Bitkom applies. A customer’s ability to access these data sets will not be available on a regular basis after the termination of the contract for data protection reasons.
  10. Application of AV Bitkom
    1. In addition, the General Terms and Conditions of Bitkom (AV Bitkom) apply.

Issued to: white duck Gesellschaft für Softwareentwicklung mbH
Published by: Bitkom Service Company mbH
Date: May 25, 2018

  1. Subject matter
    1. The provider creates software for the customer in accordance with the service description on which the contract is concluded (see section 2.2).
    2. The copy of the software to be provided to the customer by the supplier only includes its executable form.
    3. The software is handed over including a user manual (use documentation or online help). The user manual is written in the language of the user interface of the software, unless otherwise agreed. The delivery or preparation of further documentation requires a separate written agreement, in particular on the content and scope of the documentation.
    4. The supplier will prepare the software together with the operating instructions (collectively: performance items) in accordance with the principles of proper professional conduct.
    5. Analysis, planning, consulting and training services are not the subject of this contract and are not owed by the provider.
  2. Cooperation between the contracting parties
    1. The customer communicates his technical and functional requirements for the software to the provider in full and in detail and hands over to the provider in good time all documents, information and data required for the creation of the software. This includes the description of practical and appropriate test cases and data for the quality test (section 7.1).
    2. The service description finally reflects the owed nature of the software. Changes to the service description will only be made in accordance with clause 3. The provider provides analysis, planning and consulting services also in connection with the service description only on the basis of a separate contract against separate remuneration (see also clause 1.5).
    3. The provider shall call in the project manager designated by the customer as the contact person (section 2.1 of AV Bitkom) insofar as the execution of the contract requires. The decisions of the contact persons must be recorded in writing.
    4. The customer is not entitled to provide services with him.
  3. Procedures for performance changes
    1. Both contracting parties may propose changes to the service description (section 2.2) and service provision. The following procedure has been agreed: The provider will review a proposal for amendment by the customer and inform him whether a comprehensive examination of this proposed amendment is necessary or not.
    2. If a comprehensive examination of the proposed amendment is required, the provider will inform the customer within a reasonable period of time of the period and remuneration that is likely to be required for this purpose. The customer will issue or reject the inspection order within a reasonable period of time.
    3. If a comprehensive examination of the proposed amendment is not required or the contracted examination is completed, the supplier will either
      1. make a written offer to implement the changes (offer to change). The change offer shall include, in particular, the changes to the service description and their impact on the service period, planned dates and remuneration; Or
      2. that the proposed amendment is not feasible for the provider within the framework of the agreed services.
    4. The customer will either reject an offer of amendment within the acceptance period (binding period) mentioned therein or declare acceptance in writing or in any other form agreed between the contracting parties. The customer will immediately notify the supplier of any refusal.
    5. The provider and the customer can agree that services affected by a proposed amendment will be interrupted until the end of the examination, or – if a change offer is made – until the end of the binding period.
    6. Until the amendment is accepted, the work will continue on the basis of the previous contractual agreements. The periods of performance shall be extended by the number of calendar days on which work relating to the proposed amendment or its examination has been interrupted. The provider may demand an appropriate remuneration for the duration of the interruption (paragraph 3.5) unless the provider has misappropriated or failed to use its employees affected by the interruption.
    7. The change procedure is documented in writing or in text form on a form of the provider at the request of the provider, unless otherwise agreed. Any change to the service description must be agreed in writing or in any other form agreed between the contracting parties.
    8. For suggestions for changes by the provider, paragraphs 3.2 to 3.7 apply accordingly.
    9. Suggestions for amendments must be addressed to the contact person (section 2.3) of the contractual partner
  4. Rights of use and protection against unauthorized use
    1. With full payment of the remuneration owed, the provider grants the customer the non-exclusive right to use the services for the contractually stipulated purpose of use in his company on a permanent basis, unless otherwise agreed Is. A transfer of rights of use to third parties is only permitted if the rights of the customer are completely surrendered. The customer is obligated to impose the obligations and restrictions of use that apply to him on the third party. This applies in particular to the obligations under clause 5.8. At the request of the provider, the customer will confirm in writing the abandonment of his own use.
    2. In addition, all rights remain with the provider.
    3. The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the software on an alternative or successor configuration must not be significantly affected.
    4. The provider may revoke the customer’s right to use if the customer violates restrictions or other regulations for protection against unauthorized use (see also clause 5.8). The provider must first set a grace period for the customer to remedy the situation. In the event of repetition and in special circumstances which justify immediate revocation, weighing the interests of both parties, the provider may issue the revocation without setting a deadline. The customer must confirm to the provider the discontinuation of use after the revocation in writing. The provider will grant the customer the right of use again after the customer has stated in writing and assured that there are no more violations of the right to use and that previous violations and their consequences have been eliminated.
  5. Customer’s obligations
    1. The customer ensures that expert personnel are available during the project to support the provider and from handover for the quality check (section 7.1) and the use of the software.
    2. At the request of the supplier, the customer will provide suitable test cases and data for the quality test in machine-readable form (see clause 2.1). If the customer fails to hand over such test cases and data, the provider can select and create suitable test cases for additional remuneration.
    3. The customer is obligated to download any software provided for this purpose after notification of the deployment.
    4. The customer must report defects in particular in accordance with clause 2.4 of AV Bitkom. Unless otherwise agreed, the relevant forms and procedures of the provider will be used for this purpose.
    5. The customer must assist the supplier, if necessary, in the execution of the contract and in the rectification of defects in accordance with clause 2.2 AV Bitkom and to provide other analytical material.
    6. The customer will inform the supplier immediately of any changes to the conditions of use after handover.
    7. Unless otherwise agreed, the customer will additionally store all documents, information and data handed over to the provider in such a way that they can be reconstructed on the basis of data carriers in the event of damage and loss.
    8. The customer may not do anything that could encourage unauthorized use. In particular, he may not attempt to decompile the software unless he is entitled to do so. The customer will inform the provider immediately if he is aware that there is or has been an unauthorized access in his area.
  6. Transfer and transfer of risk
    1. Unless otherwise agreed, the provider may also hand over the service items to the customer by electronic transmission or by providing them for download. If the services are made available for download, the provider will notify the customer of the provision.
    2. Insofar as the service items are transmitted electronically, the risk of accidental loss shall pass to the customer upon receipt of the tele-service provider commissioned by the provider with the forward ingesride.
    3. Insofar as the services are made available for download, the risk of accidental loss shall pass to the customer with the provision and information of the customer.
  7. Quality check and customer’s claims for defects
    1. The customer shall immediately – as a rule within 14 calendar days – comply with defects in all goods, in particular software or parts of the software agreed as partial delivery, in particular in accordance with the agreement. (quality test). The customer will use practical and appropriate test cases and data for the software (see clause 2.1). The provider can coordinate with the customer regarding the test procedures as well as accompany and support the quality test on site.
    2. The customer will inform the customer correctly during or after the quality check any defects that may occur immediately, at the latest seven calendar days from the date of knowledge (section 5.4).
    3. In addition, the commercial obligation to investigate and complain (Section 377 of the German Commercial Code(SGB) applies.
    4. The supplier guarantees that the service items comply with the contractual quality if the contract is used in accordance with the contract. In particular, paragraph 4 of av Bitkom applies to material defects. In particular, paragraph 5 of AV Bitkom applies to defects in title.
    5. The customer has claims for defects only if reported defects are reproducible or otherwise demonstrable. In particular, paragraphs 5.4, 7.2 and 7.3 apply to the notification of defects.
    6. If the customer is entitled to claims for deficiencies, he initially only has the right to subsequent performance within a reasonable period of time. The subsequent performance includes, at the choice of the provider, either repair or the creation of a new service item. The interests of the customer are duly taken into account in the choice. The customer will enable the supplier to set up and expand as part of the subsequent performance, unless this is unreasonable for the customer. Before taking his own measures to remedy the defect, the customer will consult with the supplier. If the customer is entitled to reimbursement of expenses, this shall only exist to an appropriate extent, taking into account the value of the service in question, in a defect-free condition and the significance of the defect.
    7. If the subsequent performance fails or is not carried out for other reasons, the customer may, under the statutory conditions, reduce the remuneration, withdraw from the contract and/or – within the scope of clause 6 of AV Bitkom – demand compensation for damages or expenses. If the subsequent performance is delayed, AV Bitkom applies to compensation for damages and expenses of the provider clause 3.4. In particular, clause 6 of AV Bitkom applies to compensation for damage or expenses. The customer exercises a right to vote withrespect to these claims within a reasonable period of time, usually within 14 calendar days, if possible, with knowledge of the right to vote by the customer.
  8. Application of AV Bitkom
    1. In addition, the General Terms and Conditions of Bitkom (AV Bitkom) apply.

Issued to: white duck Gesellschaft für Softwareentwicklung mbH
Published by: Bitkom Service Company mbH
Date: May 25, 2018

    1. Subject matter of the contract and specifications for services

      1. The provider performs the work in accordance with the terms and conditions agreed in the contract and below against the contractually agreed remuneration.
      2. The responsibility for success lies with the provider only to the extent that
        1. the relevant criteria were defined concretely and conclusively in the specifications for this purpose in the service description in terms of scope and effect and became the subject of the contract (agreed performance criteria) and
        2. the customer fulfils his obligations to cooperate in a timely and duly timely and proper way; unless they have no effect on the provision of services.
      3. The service description is based on the customer’s professional and functional requirements communicated by the customer. The service description finally reflects the agreed performance criteria (paragraph 1.2 a) and test criteria to be applied for this purpose. Changes to the service description shall only take place in accordance with clause 4. Any analysis, planning and consulting services for the service description will only be provided by the provider on the basis of a separate contract. Unless agreed in the service description, the contracting parties agree on the conditions for their verification by a date agreed in the contract, otherwise no later than two weeks after the contract has been signed on the basis of the agreed performance criteria. test equipment such as test cases (paragraphs 6.1 and 6.5 c). If the test means have not been agreed up to two weeks after the scheduled date, the provider may in turn define suitable test means in a binding manner. The interests of the customer must be adequately taken into account.
      4. Insofar as the provider does not owe any success in the contract, the DL Bitkom (terms and conditions for services) shall apply, unless otherwise agreed.
    2. Cooperation between the contracting parties
      1. The contact persons (section 2.1 of AV Bitkom) must immediately bring about the decisions related to the execution of the contract and be available for the execution of the contract. The decisions of the contact persons must be documented.
      2. The place of supply of services is the registered office of the provider, unless otherwise agreed.
    3. Duties
      1. The customer shall ensure that the documents, information and data necessary for the provision of the service are available to the provider in full, correctly, on time and free of charge, unless owed by the provider. The provider may assume the completeness and correctness of these documents, information and data, unless he recognizes or must recognize that they are incomplete or inaccurate.
      2. The customer will hand over the test equipment defined in accordance with clause 1.3 in a timely and proper way. If the customer is in arrears with the handover, the provider is entitled to create or procure suitable test equipment at the expense of the customer.
      3. The customer must report defects in particular in accordance with clause 2.4 of AV Bitkom.
    4. Procedures for performance changes
      1. Both contracting parties may propose changes to the service description (section 1.3) and service provision. The following procedure has been agreed: The provider will review a proposal for amendment by the customer and inform him whether a comprehensive examination of this proposed amendment is necessary or not.
      2. If a comprehensive examination of the proposed amendment is required, the provider will inform the customer within a reasonable period of time of the period and remuneration that is likely to be required for this purpose. The customer will issue or reject the inspection order within a reasonable period of time.
      3. If a comprehensive examination of the proposed amendment is not required or the contracted examination is completed, the supplier will either
        1. make a written offer to implement the changes (offer to change). The offer of amendments shall include, in particular, the changes to the service description and their impact on the service period, the planned dates, the test funds and the remuneration; Or
        2. that the proposed amendment is not feasible for the provider within the framework of the agreed services.
      4. The customer will either reject an offer of amendment within the acceptance period specified therein (binding period) or accept it in writing or in another agreed form. The customer will immediately notify the supplier of any refusal.
      5. The provider and the customer may agree that services affected by a proposed amendment will be interrupted until the end of the examination or, if an offer of amendment is made, until the end of the binding period.
      6. Until the amendment is accepted, the work will continue on the basis of the previous contractual agreements. The periods of performance shall be extended by the number of calendar days on which work relating to the proposed amendment or its examination has been interrupted. The provider may demand an appropriate remuneration for the duration of the interruption (paragraph 4.5) unless the provider has misappropriated or failed to use its employees affected by the interruption.
      7. The change procedure is documented in writing or in text form on a form of the provider at the request of the provider, unless otherwise agreed. Any change to the contractual agreement, in particular the service description, must be agreed in writing.
      8. For suggestions for changes by the provider, paragraphs 4.2 to 4.7 apply accordingly.
      9. Suggestions for amendments must be addressed to the contact person (section 2.1) of the contractual partner.
    5. Rights
      1. In the performance results provided by the provider within the framework of the contract and handed over to the customer, he grants the customer the non-exclusive right to use them permanently for his own internal purposes within the scope of the contractually stipulated call-up. A transfer of the rights of use to third parties is only permitted if the rights of the customer are completely surrendered. The customer is obligated to impose the obligations and restrictions of use that apply to him on the third party. This applies in particular to the obligations under clause 5.4. At the request of the provider, the customer will confirm in writing the abandonment of his own use.
      2. In addition, all rights remain with the provider.
      3. The customer will inform the provider immediately if he is aware that an unauthorized access or use is threatened or has taken place in his area. The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract must not be significantly affected by this.
      4. The customer may not do anything that could encourage unauthorized use. In particular, he may not attempt to decompile the programs, unless he is entitled to use the software not to be supplied by the supplier in accordance with Section 69d UrhG for interfaces. Before decompiling, the customer first requests the required information from the provider.
      5. The provider may revoke the customer’s right to use if the customer violates restrictions or other regulations to protect against unauthorized use. The provider must first set a grace period for the customer to remedy the situation. In the event of repetition and in special circumstances which justify immediate revocation, weighing the interests of both parties, the provider may issue the revocation without setting a deadline. The customer must confirm to the provider the discontinuation of use after the revocation in writing. The provider will grant the customer the right of use again after the customer has stated in writing and assured that there are no more violations of the right to use and that previous violations and their consequences have been eliminated.
    6. Decrease
      1. The customer declares acceptance within a acceptance period appropriately set by the supplier. As a rule, a period of no more than 14 calendar days shall be deemed appropriate unless another acceptance period has been agreed. The acceptance period should be set in writing. During the acceptance period, the customer can convince himself, if necessary on the basis of the test means (section 1.3), that the work services are in accordance with the contract.
      2. Unless otherwise agreed, a reprimanded defect is assigned to one of the following categories:
        1. Category 1: The work performance is affected by a defect that makes use impossible or allows only with severe restrictions.
        2. Category 2: The work performance is affected by a defect that restricts the use without any defect of category 1.
        3. Category 3: The work performance is affected by a defect which restricts the use only insignificantly.
      3. The customer can only refuse the declaration of acceptance if a defect of category 1 is complained of at the same time or several defects of category 2, which together amount to the effects of a defect of category 1. The refusal of acceptance and the notification of defects must be in writing. The supplier will properly remedy (paragraph 3.3) reported defects with category 1 effects within a reasonable period of time in such a way that there are no longer any category 1 effects. As long as the examination cannot be carried on properly because of such a defect, its effects or its elimination, the acceptance period for the work services affected by it shall be extended appropriately. Claims due to defects after declaration of acceptance remain unaffected.
      4. Already declared partial acceptances remain unaffected by subsequent acceptance tests for other services. The same shall apply to tests already carried out, unless they are affected by a defect or its elimination.
      5. The work services are also deemed to have been accepted, even without express declaration and without request ingessing acceptance from the supplier,
        1. if the customer uses the work for purposes other than testing (paragraph 1.3), or
        2. with payment, unless the customer has justifiably refused acceptance, or
        3. if the tests can be carried out when using the test equipment (paragraphs 1.3, 3.2) without any defects preventing acceptance.
      6. Unless otherwise agreed, delimitable partial services are also accepted individually in accordance with these regulations.
    7. Customer’s claims for defect
      1. The customer has claims for defects only if reported defects are reproducible or otherwise demonstrable. This also applies to defects for which rights are reserved for acceptance. In particular, paragraph 3.3 applies to the notification of defects.
      2. If the customer is entitled to claims for deficiencies, he initially only has the right to subsequent performance within a reasonable period of time. Subsequent performance includes, at the supplier’s choice, either rectification of defects or re-production.
      3. If the subsequent performance fails or is not carried out for other reasons, the customer may, under the statutory conditions, reduce the remuneration, withdraw from the contract and / or – within the scope of clause 6 of AV Bitkom – demand compensation for damages or expenses. The customer is only entitled to a paid self-performance if a defect has not been rectified despite the expiry of a reasonable period of time for subsequent performance and the cause of this lies in the sphere of the provider. If the subsequent performance is delayed, AV Bitkom applies to compensation for damages and expenses of the provider clause 3.4. Clause 6 of AV Bitkom applies to compensation for damage or expenses. The customer exercises a right to vote withrespect to these claims within a reasonable period of time, usually within 14 calendar days, if possible, with knowledge of the right to vote by the customer.
      4. For material defects, additional clause 4 of the AV Bitkom applies, for defects in title, additional clause 5 of the AV Bitkom applies. Section 641 para. 3 BGB remains unaffected.
    8. Premature termination
      1. If a minimum term of the contract has been agreed, a proper termination before the expiry of the minimum term is excluded. The same applies to an agreed fixed term of the contract. A proper termination is also excluded insofar as the specific contractual relationship gives the parties a special interest in the completion of the work.
      2. If the customer effectively declares an ordinary termination before acceptance, the provider is entitled to demand the agreed remuneration; however, he must be credited for what he saves in expenses as a result of the cancellation of the contract or, by other use of his labour power, acquires or fails to acquire it maliciously. It is presumed that the provider will then be entitled to 10 out of a hundred of the agreed remuneration attributable to the part of the work which has not yet been performed.
      3. The right to terminate for good cause remains unaffected. If the extraordinary termination or partial termination is not the party’s own, the customer shall be responsible for the services rendered up to the termination. In addition, the customer must pay 10 out of a hundred of the agreed remuneration resulting from the unpaid part of the work as lump sum expenses and damages. The proof of a lower effort or damage by the customer or a higher effort or damage by the provider remains unaffected.
    9. Application of AV Bitkom
      1. In addition, the General Terms and Conditions of Bitkom (AV Bitkom) apply.

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