General Terms and Conditions

§1 Parties

• inducio GmbH is referred to as the contractor.
• The contractual partner of inducio GmbH is referred to as the client.

§2 Subject matter of the contract and scope of services

These General Terms and Conditions contain fundamental provisions for the business relationships of inducio GmbH with its clients.

They apply to the following services of the contractor, which are only listed rudimentarily here. The services are specified in detail in the service descriptions and the orders.

§3 Placing of orders and recording of effort ​

1. Orders are entered by the client into the contractor's order processing systems by email or web portal as described in (Annex B), with a precise order or fault description. The contractor provides the client with the necessary access free of charge for the duration of the contractual relationship. If, in exceptional cases, it is technically impossible for the client to place orders by email or web portal, orders may be placed by phone via the support hotline named in (Annex A2).
2. The contractor confirms receipt of the order immediately, stating the time of receipt and a case number.
3. The contractor records the effort incurred separately for each case and activity. The client can, if required, inform themselves independently in the ticket system about the total effort already incurred for the individual orders, with the date and time of the activities.
4. The contractor informs the client immediately about activities carried out and, where necessary/possible, passes on interim results or informs the client about the completion of the work order.
5. The client names a responsible contact person for each case who can fully support the contractor in carrying out the necessary activities, provide the required resources and make the required decisions. If no contact person is named, the reporter or requester is regarded as the corresponding contact person.
6. For queries regarding ongoing cases, the case number must be provided.
7. The contractor makes the recorded service hours available to the client for review. It sends them as a timesheet overview by email or makes them available in the customer portal and informs the client of this by email. The email is sent to the person the client has designated for reviewing the hours. It states the day on which the review period ends. This day is at least 7 calendar days after receipt of the email. In each of these emails the contractor separately and prominently points out the end of the period and the significance of the client's silence. If the client does not raise objections in text form (by email or via the customer portal) by the end of that day, specifying the disputed hours, the provided hours are deemed acknowledged by the client. A query or objection in text form suspends the period. After clarification, a new period only begins with a new email stating a new end of the period. After the period has expired or after the client's express confirmation, the contractor invoices the acknowledged hours. Disputed hours are invoiced only after clarification. The acknowledgement merely establishes a rebuttable presumption of the correctness of the recorded hours. The client remains entitled to prove that the recorded hours were in fact not incurred or not to that extent. This provision applies only to clients who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.

§4 Change Request / additional expenses ​

1. The client is entitled, even after conclusion of the contract, to request changes to the delivery and/or service object if the deviations are, from an objective point of view, technically and logistically reasonable for the contractor, taking into account its business purpose, know-how and order situation. The contractor must review the client's change request and inform them in text form of its effects on the contractual structure. This duty to inform includes, where possible, a statement on whether the desired changes are technically and/or logistically possible and expedient at all, as well as a statement on the effects of the change requests on the previously agreed contractual structure, such as the concept, deadlines, dates, acceptance modalities and remuneration, in the form of an offer. The client must then decide without delay on whether the changes are to be carried out.
2. With the positive decision and agreement on the changes to the contractual conditions, the change to the order becomes part of the contract.
3. In the case of change requests by the client relating to the order object or order execution which are technical and economically insignificant for the contractor, a change to the contractual conditions cannot be demanded by the contractor.
4. The client reimburses the additional expenses arising from the change request. This also includes the contractor's expenses for fulfilling the duty to inform under §3 no. 1.

§5 Acceptance of works

1. The parties agree on an acceptance date. If no acceptance date is agreed, acceptance takes place after completion of the work.
2. Works are subjected to an acceptance test after being provided by the contractor. After completion of the acceptance test, the client will declare acceptance of the service, provided the service is free of defects.
3. Acceptance must be made in text form. Without a declaration of acceptance, a service is deemed accepted if the client has used it for its intended purpose for 14 calendar days outside agreed test processes and/or procedures without notifying any defect.

§6 Provision of software and rights of use for SaaS contract services

1. The contractor (hereinafter „provider“) provides the client with the use of the software specified in the service description within the range of functions described there and under the functional prerequisites likewise stated there. The software is provided for use by the provider at the handover point agreed in the service description (interface of the data network operated by the provider to other networks). The software remains on the provider's server. The establishment and maintenance of the data connection between the client's IT system and the handover point operated by the provider is not owed by the provider.
2. The current range of functions of the software results from its current service description. Outside of release changes, the provider may, within the scope of technical possibilities, modify the software and use it in the version currently offered by the manufacturer, if the change to the software is reasonable for the client taking the provider's interests into account. However, the client has no claim to the use of a new version of the software named in the service description.
3. The provider remedies software errors within the scope of technical possibilities. An error exists if the software does not fulfil the functions stated in the service description.
4. At the client's request, the provider takes over the planning and execution of release changes. This service must be agreed separately between the client and the provider in detail, including with regard to any hardware and database extensions to be modified as well as the consequences for the operation of the software and its costs.
5. The provider grants the client the non-exclusive and non-transferable right to use the software designated in this contract within the scope of the SaaS services as specified in the service description. The workstations must meet the minimum technical requirements stated in the service description. The connection of the client's workstations is established via a data connection to be set up by the client in accordance with the information in the service description.
6. The software is provided to the client at its choice in accordance with the provisions of the service level agreement.
7. The client may only modify or reproduce the software insofar as this is covered by the intended use of the software according to the respective current service description. Necessary reproduction includes loading the software into the working memory on the provider's server, but not even the temporary installation or storage of the software on data carriers (such as hard disks or similar) of the hardware used by the client.
8. The client is not entitled to provide the software to third parties for use, whether for a fee or free of charge. A third party is not someone who is a vicarious agent of the client and uses the services free of charge, such as employees of the client, freelancers within the scope of the order relationship, etc.

§7 Data storage and handover for SaaS contract services, rights of the contractor

1. The client has the option of storing data on the virtual data server set up for them by the contractor (hereinafter provider), which they can access in connection with the use of the provided software. The provider merely owes the provision of storage space for use by the client. It has no safekeeping or custody obligations with regard to the data transmitted and processed by the client. The client is responsible for compliance with the commercial and tax retention periods. The client undertakes not to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties.

2. The amount of storage space available to the client is defined in the service description. It also explains how the data is processed. The client can store the data on the data server as part of a database migration and as part of the ongoing use of the software.

3. In the case of migrating data from a database of the client, the client must provide the provider with the information on the database management system required for the migration, including any test data, to the extent set out in the service description, if necessary after separate agreement, at least eight weeks before the intended migration of the data. The data to be migrated must then be provided to the provider on a data carrier likewise named in the service description or by remote data transmission at least five working days before the intended use of the data. The provider supports the client in migrating the data at the fees stated in the price information sheet valid at the time of conclusion of the contract.

4. The client is not entitled to provide this storage space to a third party, in part or in full, for use, whether for a fee or free of charge.

5. The client grants the provider the right to reproduce the data to be stored by the provider for the client, insofar as this is necessary to provide the services owed under this contract. The provider is also entitled to keep the data in a backup data centre. To remedy incidents, the provider is further entitled to make changes to the structure of the data or the data format.

§8 Service and response times for IT incidents ​

1. The contractor owes response times only if the client has booked a service level for the affected service. A service level is a separately agreed service for which the order form or the service description specifies response times. If no service level has been booked, the contractor nevertheless accepts reports of errors and malfunctions and processes them according to its available capacity (best effort). No response time is assured in that case. The client's rights in respect of defects remain unaffected.
2. The following incident classes are defined:
   • -1- Malfunctions or poor response times of individual functions of a (sub-)system at individual workstations. The system remains usable here, possibly with restrictions.
   • -2- Malfunctions or poor response times of individual functions of a (sub-)system at all workstations. The system remains usable here, possibly with restrictions.
   • -3- Malfunction of a (sub-)system that is not essential for maintaining business operations. The affected (sub-)system is no longer usable.
   • -4- Malfunction of a (sub-)system that is essential for business operations. The affected (sub-)system is no longer usable.
3. If a service level has been booked, the response times specified in the order form or the service description apply. Insofar as these do not specify anything for an incident class, the following response times apply where a service level has been booked:
   • -1- Start of incident rectification within five (5) working days
   • -2- Start of incident rectification within three (3) working days
   • -3- Start of incident rectification on the working day after next
   • -4- Start of incident rectification within the booked service level
4. To ensure the response times, the client will state the corresponding incident class when entering it into the order processing system.
5. A working day is defined as a weekday (Monday to Friday) that is not a nationwide public holiday. The working day begins at 9:00 and ends Monday to Thursday at 17:00, Friday at 15:00.  
6. If the client enters the incident into the order processing system by 12:00, the day of entry counts as the start of the response time. In the case of a later entry, the following working day counts as the start of the response time. If an SLA 4 level has been booked, the response time begins in any case on the same working day after entry.
7. Service and project work is generally carried out on a working day. Where required within projects, other working times may be agreed.
8. The time of service provision results for
   • service orders within the scope of incident rectification according to the response times stated above, without a booked service level according to No. 1,
   • project and other service activities within the operational possibilities of the contractor, as agreed with the client.
9. If the contractor exceeds a response time it owes, claims exist only under §15 and §16. The right to extraordinary termination for good cause under §12 No. 4 remains unaffected.

§9 Duties of cooperation of the client  ​

1. Responsibility for project organisation and planning as well as for project reporting generally lies with the client. The client's project manager bears overall responsibility for the professionally, timely and budget-compliant realisation of the project. The contractor's project manager will support the client's project manager in this. The contractor's project manager is responsible for leading the project team of the contractor's vicarious agents in professional and disciplinary terms, regardless of the place of performance.

2. The client undertakes to fully support the contractor in carrying out the activities and provides the contractor in its premises, in particular, with rooms, systems and personnel as well as necessary documents and other operational resources free of charge.

3. The client provides the systems and telecommunication connections required for remote access in its premises, upon request by the contractor, free of charge.

4. The client will specify work orders for activities precisely and provide a precise fault description for errors that occur. Additional effort resulting from insufficient activity or fault descriptions by the client is borne by the client. At least the following information must be provided:

• affected system components and users
• delimitation of the affected system components
• expected behaviour / actual behaviour
• start and times of the fault

5. The client ensures that the accident prevention regulations are observed and the necessary safety precautions are taken in the rooms and on the corresponding premises to be entered by the contractor. The client is responsible for damage arising from insufficient compliance with these regulations.

6. The client provides a suitable system for the ISO 27001 (ISMS)-compliant documentation, otherwise the ISO 27001-compliant documentation is invoiced to the client by the contractor.

7. For the recording of information security incidents, the client provides suitable systems (syslog server, network monitoring system, flow collector, etc.), otherwise the systems are invoiced to the client by the contractor.

§10 Special duties of cooperation of the client for SaaS contracts  ​

1. The client establishes the data connection between the workstations of the client intended for use and the data handover point defined by the contractor. The contractor is entitled to redefine the data handover point if this is necessary to enable smooth use of the services by the contractor. In this case, the client will establish a connection to the newly defined handover point.
2. Within the scope of the SaaS contract, the contractual use of the contractor's services depends on the hardware and software used by the client, including workstation computers, routers, data communication means etc., meeting the minimum technical requirements for the use of the currently offered software version, and on the users authorised by the client to use the software being familiar with operating the software. The client will install the software provided by the contractor, and subsequent updates as necessary, on each workstation computer from which it legitimately wants to access the software. In all other respects, it will only use hardware and software that meets the minimum requirements stated in the service description. Configuring its IT system is the client's task. The contractor offers to support it in this for a fee on the basis of a separate agreement.
3. Within the scope of the SaaS service, the client is obliged to prevent unauthorised access by third parties to the protected areas of the software through suitable precautions. For this purpose, the client will, where necessary, instruct its employees to comply with copyright. The client is further obliged to check its data and information for viruses or other harmful components before input and to use virus protection programs corresponding to the state of the art for this. For access to the use of the SaaS services, the client will, where necessary, generate its own „user ID“ and password required for the further use of the SaaS services. The client is obliged to keep the „user ID“ and password secret and not to make them accessible to third parties. 

§11 Prices and terms of payment  ​

General:

Invoices issued are due for payment immediately unless a payment term is stated on the invoices. In the event of default, the contractor reserves the right to additionally charge reminder costs and default interest of 4% above the applicable base interest rate of the Deutsche Bundesbank.

If the client is more than 30 days in default with due payments, the contractor reserves the right not to provide any further services for the client until the latter has met its payment obligations. The suspension of the service due to default in payment does not entitle the client to extraordinary termination of the contract.

Services:

For services, the prices and conditions from the respective current price information sheet apply. When hour quotas are agreed, the client commits to corresponding minimum purchases. The chosen option is billed on a pro-rata basis at the times agreed in the order form.

The contractor may, at its reasonable discretion, adjust the fees payable under the price information sheet to the development of the costs relevant to the price calculation. A price increase or reduction may be considered if, for example, the costs for procuring hardware and software as well as energy, the use of communication networks or labour costs increase or decrease, or other changes to the economic or legal framework lead to a changed cost situation. The contractor will inform the client of changes to the price information sheet in text form at least six weeks before the changes take effect.

Working hours exceeding the hour quota are invoiced to the client by the contractor at the standard hourly rate after the service has been provided.

For work at the client's site, the costs according to the price information sheet are additionally due per trip. Billing takes place together with the billing of the work performed.

If the consumer price index determined by the Federal Statistical Office changes by more than 2 percentage points upwards or downwards compared to its level at the time of conclusion of the contract or at the time of the last price adjustment, a corresponding price adjustment takes place.

Billing takes place on the basis of the effort acknowledged under §3 No. 7 or otherwise proven, insofar as remuneration based on effort has been agreed.

§12 Contract term and termination for services and hosting services / cloud computing

The contract begins with its signing and has a minimum term specified in the order form.

The contractual partners have the right to terminate the contract after expiry of the minimum term with six months' notice to the end of the calendar year (notice period).

3. The termination of the contract must have reached the other contractual partner in writing by the start of the notice period. The terminating party must provide proof of receipt of the termination.

The right to extraordinary termination for good cause remains unaffected.




The contractor is entitled to terminate without notice in particular if the client fails to make due payments despite a reminder and a grace period, or violates the contractual provisions on the use of the services.

§13 Sale of hardware and delivery of software / retention of title and warranty

1. The contractor retains title to sold hardware until full payment.

2. Insofar as sold hardware or delivered software is defective, the client is entitled, within the scope of the statutory provisions, to demand subsequent performance in the form of remedying the defect or delivering a defect-free item. The right to choose the type of subsequent performance lies with the contractor. If subsequent performance fails, the client is entitled to reduce the purchase price or, if the statutory requirements are met, to withdraw from the contract. A prerequisite for any warranty rights is that the client properly fulfils the inspection and notification obligations owed under §377 HGB (German Commercial Code).

3. The limitation period for warranty claims is – except in the case of claims for damages – twelve months. 

§14 Warranty for works  

1. The contractor provides the agreed service in the agreed scope and period.

2. Claims for subsequent performance become time-barred after 12 months. Subsequent performance is initially provided in the form of rectification and is limited to this. A new production is considered insofar as this is sensible from a purely economic or technical point of view.

3. The contractor is not liable in cases where the client has made changes to the services provided by the contractor, unless these changes had no influence on the occurrence of the defect.

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§15 Warranty for non-compliance with service and response times under §8 and for hosting services

1. Insofar as the service level or the availabilities agreed for hosting services are not met for reasons for which the contractor and/or its subcontractor is responsible, the client may, within the scope of its warranty rights, assert reduction rights exclusively, without prior assertion of a claim for subsequent performance and without setting a deadline.

2. Warranty claims are excluded if

• an impairment of the service occurs outside the network operated by the contractor, e.g. due to service failures and disruptions at other providers or telecommunication providers,
• the client uses the system capacities in breach of contract, e.g. through an excessive number of accesses or other conduct in breach of contract,
• the client is in default of payment,
• the impairment is due to force majeure,
• the impairment is due to attacks by third parties on the contractor's infrastructure.

3. In the event that the client asserts a reduction right against the contractor, the reduction rate is calculated as follows:

• For hosting services, the remuneration for the affected service is reduced for the reference period of the agreed availability by the percentage by which the agreed availability was undershot. Further claims exist only under §16.
• For SLA 4 services, the remuneration in the respective month is reduced by 4% (four per cent).

§16 Liability ​

1. The contractor is liable without limitation for intent, for gross negligence of its legal representatives and executive employees, for damage arising from injury to life, body or health, in the case of fraudulent concealment of a defect, under the Product Liability Act and, where mandatory, under the TKG (German Telecommunications Act). The contractor does not assume any guarantees.
2. Otherwise, in the case of negligence the contractor is only liable for the breach of essential contractual obligations. Essential obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the client may regularly rely. In this case, liability is limited to the damage typical of the contract and foreseeable at the time the contract was concluded.
3. Liability under number 2 is limited, for all damage events of a contract year together, to half of the remuneration that the client actually paid for the affected order in the twelve months before the first damaging event of this contract year.
4. For the loss of data, the contractor is only liable up to the effort required to restore the data from a proper backup. If the contractor itself owes the backup, this is the last backup it created in accordance with the service description.
5. Claims under number 2 become time-barred one year after the statutory commencement of the limitation period.
6. The limitations also apply to claims in tort and in favour of the contractor's legal representatives, employees and vicarious agents. This does not change the burden of proof.
7. The client must notify the contractor of defects without delay.
8. In the event that the contractor's SaaS services are used by unauthorised third parties using the client's access data, the client is liable for the fees incurred thereby within the scope of civil liability until receipt of its order to change the access data or the report of the loss or theft.
9. For SaaS services, the contractor is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. Reasonable suspicion of unlawfulness and/or an infringement exists in particular if courts, authorities and/or other third parties inform the contractor of it. The contractor must notify the client of the block and the reason for it without delay. The block must be lifted as soon as the suspicion is refuted.
10. In the case of force majeure, such as war, terrorism, unrest, fire, floods, pandemics or other unforeseeable events for which the contractor is not responsible, such as strikes, publicly ordered lockdown, operational disruptions, shortage of energy and raw materials, shortage of means of transport, insufficient deliveries from upstream service providers, disruption of gateways by telecommunication networks that are not within the contractor's control, the contractor is released from performance for as long and insofar as service impediments caused thereby exist. All cases of force majeure entitle the contractor in particular to extend the delivery dates and deadlines in accordance with the extent and duration of these circumstances and their consequences, without granting the client a right of withdrawal from the contract or a claim for damages.

 §17 Confidentiality and data protection  ​

1. The contractual partners undertake to maintain silence about all confidential matters that come to their knowledge in the course of the business relationship, in particular business and trade secrets of the other contractual party, and neither to pass these on nor to exploit them in any other way. This applies towards any unauthorised third parties, i.e. also towards unauthorised employees, insofar as the disclosure is not necessary for the proper fulfilment of the contractual obligations. The confidentiality obligation continues to apply even after termination of this contract.
2. The contractual partners will process and use personal data of the respective other contractual partner in compliance with the provisions of the data protection laws and only for contractually agreed purposes. In particular, they will secure this data against unauthorised access and only pass it on to third parties with the consent of the other contractual partner or the persons concerned. Insofar as it is necessary for the execution of the order that the client grants the contractor access to personal data, the personnel deployed must likewise be informed of their data protection obligations and be bound in accordance with the data protection provisions. Insofar as commissioned processing takes place, this must be governed by a data processing agreement.

§18 Amendment of these Terms and Conditions ​

1. The contractor may amend these terms and conditions and the service descriptions with effect for the future only for one of the following reasons:
   • a change in laws, regulations or supreme court case law affecting a provision of these terms and conditions or of a service description,
   • an order of an authority or a court,
   • a change in the services of manufacturers, suppliers or data centres that the contractor uses for the contractual service, insofar as the contractor cannot influence the change,
   • the technical further development of the service or the elimination of a security vulnerability,
   • the closing of a regulatory gap that has arisen after conclusion of the contract and makes the performance of the contract considerably more difficult,
   • the correction of typing errors, references and translations without changing the content.
2. The list in No. 1 is exhaustive. Prices and charges are governed solely by §11.
3. An amendment under No. 1 may not change the main performance obligations, the term or the remuneration and may not change the nature of the agreed service.
4. The contractor gives notice of the amendment in text form at least six weeks before it takes effect. The notice states the reason under No. 1, the amended provisions, the number of the new version and the day on which it takes effect. If the client has agreed an electronic communication channel with the contractor, the notice may also be given by this channel, provided the client can store or print it in readable form.
5. The client may object to the amendment in text form until the end of the day before it takes effect. No other time limit applies. If the client does not object in time, its consent is deemed given. The contractor points out the right to object, the time limit and the significance of the client's silence separately in the notice.
6. If the client objects, the contract continues on the previous terms. The right of both contracting parties to ordinary termination remains unaffected.
7. Each version of these terms and conditions bears a number and remains available on the contractor's website under /agb/ followed by this number. A contract is governed by the version incorporated at the time of its conclusion until an amendment under this section takes effect.

§19 Law and place of jurisdiction

1. For all disputes arising in the course of the execution and settlement of this contractual relationship, the registered office of the contractor is agreed as the place of jurisdiction, insofar as the client is a full merchant.
2. The contractual relationship is subject exclusively to the law of the Federal Republic of Germany, excluding the conflict of laws rules and the uniform UN Convention on Contracts for the International Sale of Goods (CISG).

§20 Final provisions ​

1. The contractor may transfer the rights and obligations under this contract to a third party if the latter's qualification and capability ensure a contractual fulfilment of the obligations existing towards the client. The client already now irrevocably consents to such a releasing assumption of debt.
2. Amendments and additions to this contract must be made in writing. This also applies to the amendment of the written form clause.
3. Service descriptions take precedence over these terms and conditions insofar as they provide otherwise. General terms and conditions and purchasing conditions of the client do not apply, even if the contractor does not expressly object to them.