GTC
General Terms and Conditions (GTC)
SimCog Technologies GmbH
Status May 2020, valid as of May 1, 2020
I. Scope
These General Terms and Conditions (hereinafter also referred to as "GTC") apply to business relationships of SimCog Technologies GmbH ("SimCog") with its customers. SimCog is a software development and consulting company specializing in customized, AI-based solutions.
The content of the contract is always based on the offer documents prepared by SimCog and accepted by the customer. In the event of contradictions between the offer documents and the GTC, the offer shall prevail.
Our terms and conditions shall also apply if counter-confirmations of the contractual partner are made with reference to its own terms and conditions. Such counter-confirmations are hereby expressly contradicted. Terms and conditions of the customer shall only become part of the contract instead of or in addition to these GTC if the parties expressly agree on this in writing within the scope of the conclusion of the contract.
4 Deviations from these GTC, supplementary agreements and ancillary agreements shall only be effective if they are agreed in writing or confirmed by us in writing. The text form is excluded in these cases.
5 SimCog shall be bound by a binding offer for four (4) weeks from the date of submission of the offer, unless another period is specified in the offer documents.
Changes to the GTC shall be communicated to the Customer by e-mail or by post at least four (4) weeks before they come into force. If such changes are not objected to within one (1) month of delivery, they shall be deemed accepted.
II. scope of services
1 SimCog provides its services in accordance with the contractually agreed service description and in accordance with the recognized state of the art.
2 SimCog shall only be obliged to provide source code if this has been expressly agreed in the contractual documents.
3 SimCog uses carefully selected own employees or third parties as subcontractors with the respective required qualifications for the provision of services.
4 SimCog organizes the agreed services itself and on its own responsibility. SimCog determines the type, place of performance, sequence and timing of the work, in particular also the number of employees to be deployed, independently.
III. third party services
1. if the fulfillment of the contract requires access to services of third parties, the customer will be informed by SimCog.
(2) Third-party services within the meaning of these General Terms and Conditions are in particular the purchase of data, hardware and software, the awarding of service and work contracts to third parties.
IV. Duties of the customer
The customer recognizes his obligations to cooperate as a prerequisite for the provision of services by SimCog and thus as his contractual obligation. In particular, the customer must make decisions incumbent upon him regarding project implementation and project content without delay and notify SimCog thereof, as well as immediately review proposed changes by SimCog.
2. the customer will appoint at least one sufficiently qualified technical contact person as contact person for the technical communication with SimCog. In the context of projects, the customer will appoint a project manager for this purpose. This project manager will be available by telephone or e-mail for regular coordination meetings and project planning. In the absence of the project manager, the customer will appoint a representative to SimCog. The project manager or his representative must be able to provide technically sound feedback on the requirements set by SimCog and to answer questions from SimCog at short notice, at the latest within five working days.
3. the customer will take all necessary measures to prevent and minimize damages within the scope of the service provision by SimCog. Prior to the provision of services, the customer will protect all data used by him against loss in the form of backup copies under his own responsibility. SimCog does not guarantee that existing computer configurations will remain in the form previously set up by the customer.
4. the customer will provide the infrastructure required for the project (hardware and software including necessary licenses, authorizations, user and system accesses) in time for SimCog to provide the service.
5. if SimCog is active at the customer's location, the customer shall provide the assigned SimCog employees with suitable project rooms, project infrastructure and workstations, including any necessary system and remote access, free of charge and shall inform the SimCog employees about the security regulations applicable at the respective location.
V. Prices and Terms of Payment / Default of Payment
1 All prices are net prices. They do not include statutory value added tax. Unless otherwise agreed, fixed prices shall be invoiced as follows:
a) 1/2 directly after placing the order,
b) 1/2 upon acceptance, but no later than two weeks after delivery or after completion of the service.
2. if the remuneration is calculated on the basis of "man-days", "person-days" or similar, one such "day" shall correspond to eight (8) hours worked by an employee on a calendar day. Overruns and underruns shall be calculated on a pro rata basis.
3. costs for the purchase of hardware components or services of third parties, such as data, shall be invoiced directly to the customer and shall be settled in due time.
Travel costs, expenses and other incidental costs as well as out-of-pocket expenses incurred by SimCog for the provision of the contractually owed service shall be invoiced additionally and according to expenditure.
Invoices are due for payment 14 days after receipt of the invoice; the granting of a discount is excluded. In case of doubt, invoices shall be deemed received three working days after the invoice date.
If SimCog incurs additional expenses due to gaps or ambiguities in the documents provided by the customer, SimCog may invoice these additional expenses at the agreed rates. This also applies to additional expenses that are due to contradictory or incorrect information on the part of the customer.
7. the rectification of faults caused by improper intervention is not included in any fixed prices and will be invoiced according to expenditure.
8. a delay in payment occurs when the aforementioned payment deadlines are exceeded.
9. in case of delay of payment SimCog can refuse the further execution of the order after previous announcement. Costs incurred until then will be charged. SimCog is entitled to charge interest on arrears at a rate of 9% above the prime rate of the Deutsche Bundesbank from the date of default. The assertion of further claims remains unaffected.
VI. rights of use
1 SimCog grants the customer a temporally and spatially unlimited, simple, non-transferable right of use for his internal business purposes for the trades and service results created for him (hereinafter jointly "work results"). SimCog grants this right to the Customer subject to full payment and, in the case of trades, acceptance. Transferability of the right of use to affiliated companies of the customer (§§ 15 ff. AktG) is expressly excluded.
2. until full payment and, in the case of trades, until acceptance of the work results, the customer shall have the right to test the work results as agreed. This right expires if the customer is in default of payment for more than 30 days. A separate reminder by SimCog is not required for this.
Section VI.1. does not apply to standard products that are part of the work product. Standard products are separable products or solutions of SimCog or third parties that are subject to their own license terms. The Customer's rights to these standard products are determined exclusively by their license terms.
4. as far as SimCog provides software according to clause VI.1. for which no separate license conditions exist, the following regulations apply:
4.1 The customer shall have the non-exclusive right to use the SimCog software for the term of the contract.
4.2 The customer may not rent, lend, sell, sublicense, assign or transfer the SimCog software itself or the rights to the SimCog software to third parties for use, nor copy the SimCog software or authorize the copying of the SimCog software either in part or in whole, except in cases expressly permitted.
4.3 Customer shall not edit, decompile or disassemble the SimCog Software, extract any portion of the program, reverse engineer or otherwise attempt to derive the source code; except to the extent Customer is permitted to edit, reverse engineer or decompile under mandatory law.
4.4 If the SimCog software is provided to the customer for testing purposes, the customer's rights of use shall be limited to such actions that serve to determine the condition of the SimCog software and its suitability for operation by the customer. In particular, productive operation of the software is not permitted.
4.5 The customer shall not make the software available to third parties without the prior written consent of SimCog. There is no entitlement to the granting of consent to make the SimCog software accessible to third parties. The customer shall not remove alphanumeric identifiers, trademarks and copyright notices.
4.6 Any supplementary program code provided to the customer for the purpose of troubleshooting or as part of maintenance or other contractual services shall be considered part of the respective SimCog software provided and shall be subject to the terms and conditions of these GTC unless otherwise agreed.
4.7 In all cases in which the customer's rights of use end, existing copies of the software must either be destroyed by the customer against proof or returned to SimCog. In the event of a permitted transfer of the software to affiliated companies or third parties, the customer shall assure SimCog in writing of compliance with these obligations by all parties involved. Legal storage obligations remain unaffected by this.
(5) Notwithstanding Section VI.1, the customer shall be granted rights of use to work results that contain "open source software" or adaptations of this software in accordance with the relevant license terms for this software. Both parties undertake to observe these license conditions.
6. the granting of rights according to clause VI.1. does not apply to materials or solutions pre-existing at SimCog (hereinafter "SimCog IP"), including changes and additions made thereto. SimCog retains all rights to SimCog IP at all times. The rights of use granted to the customer to the SimCog IP incorporated in the work results shall be determined by the purpose of the contract on which both parties have agreed. The isolated use of SimCog IP is excluded.
7 SimCog is in any case and without restriction entitled to use the work results including the know-how acquired during the implementation of the project, in particular the concepts, procedures, methods and interim results underlying the work results without restriction, while maintaining its confidentiality obligations.
Insofar as work results arise within the scope of SimCog's service provision that are patentable or utility modelable, SimCog may make a corresponding property right application in its own name and for its own account. SimCog will grant the customer the right to use the property right together with the work results to the extent necessary. A separate remuneration for this property right license is not to be paid.
9 The customer grants SimCog the simple right to use his existing intellectual property free of charge, insofar as SimCog deems this necessary for the provision of its own services.
VII Confidentiality and data protection
1. data provided to SimCog by the customer will only be used for the respective customer project. Without the express consent of the customer, the use for benchmark purposes is exclusively in aggregated form.
2. the parties shall keep secret all confidential information of the other party which comes to their knowledge in the course of the cooperation, i.e. protect it with due care against disclosure to unauthorized persons. The parties undertake to involve only those employees or third parties in the cooperation whom they have previously committed to confidentiality in a comparable form.
3 Confidential is all information of a party - regardless of its form - that is marked in writing as confidential or whose confidentiality clearly results from its nature, in particular trade and business secrets. This also includes SimCog IP as well as proprietary source codes that the customer receives from SimCog.
4 Non-confidential information is information that the receiving party can demonstrate either (i) is or was generally available, (ii) was already in the party's possession without an obligation of confidentiality, (iii) was independently developed by another party without the use of confidential information, or (iv) lawfully acquired the information from a third party that was not under an obligation of confidentiality.
5. if data is copied and archived as a backup copy at SimCog within the framework of the contractual relationship and possibly stored beyond the end of the contract, SimCog will keep unpublished data confidential and inaccessible to third parties.
The dispatch of data, documents and templates of any kind in digital or printed form or on data carriers shall be at the risk of the customer. The customer shall prevent any loss of data by making backup copies in advance.
7. if work is carried out on IT systems (both hardware and software) and/or on peripheral devices of the customer within the scope of an order, the customer shall make a backup of the data files before the service is provided. SimCog assumes no liability in this respect.
8. SimCog is entitled to keep a copy of the work results and project documents for purely internal purposes, even if they contain confidential information. However, this authorization does not imply any obligation, i.e. in particular SimCog cannot reserve storage capacity beyond the period of project processing. The customer is solely responsible for the storage of his project information and results.
9. the confidentiality obligations shall continue for five (5) years beyond the end of the respective contract.
The parties shall comply with the applicable regulations on the protection of personal data. If SimCog processes personal data of the customer as a commissioned data processor (e.g. in the context of support or development with access to real data of the customer), the parties shall enter into an agreement on commissioned data processing in accordance with customary market standards. In the event that services are provided by third parties, SimCog shall enter into corresponding agreements with these third parties, if applicable.
VIII. Term of contract and termination
Unless otherwise stated in the offer, the contract shall commence on the day of acceptance of the offer by the customer or, if SimCog begins to provide the service beforehand, on the day the service begins.
Contracts may be terminated by either party at any time with four (4) weeks' notice to the end of the month, unless otherwise stipulated in the contract documents. Services provided to date shall be remunerated on a pro rata basis. In the event that SimCog incurs costs due to premature termination by the customer, e.g. for the reallocation of resources, the customer shall compensate SimCog for this. § 648 BGB is not applicable.
Both parties reserve the right to terminate a contract in writing for good cause. If the reason for termination is a breach of an obligation under this contract, the terminating party shall, prior to termination, set a reasonable period of time for the other party to remedy the reason for termination. Good cause for termination shall be any circumstances that make further cooperation with the other party unreasonable, including, in particular, default in payment of substantial amounts or repeated or persistent serious deficiencies in the performance of services or cooperation.
4. all notices of termination under this Agreement must be in writing; text form is not permitted. Transmission of the termination letter by fax or as a scan by e-mail is permissible.
IX. Acceptance
1. work performances of tangible and intangible nature to be produced by SimCog (hereinafter "trades") are subject to acceptance. Service results are not subject to acceptance.
2 SimCog shall make the trades available to the customer for acceptance after completion. Unless otherwise agreed, the customer must declare acceptance of the work within two (2) weeks after provision, if the completed work does not have any defects that prevent acceptance within the meaning of the following provisions.
In the case of trades with software reference, the parties can agree on the course and scope of the acceptance test at the beginning of the execution of the contract. For the execution of the acceptance test, the customer shall provide test data as well as the test results expected by him in due time before the provision of the trades in the form specified by SimCog in the offer documents. SimCog is entitled to participate in the acceptance test and to inspect the test results.
4. defects preventing acceptance are defects of classes 1 and 2 according to the following definition:
a) Class 1 defects are deviations that result in the trade or a central part of it being unusable for the customer (example: frequent unavoidable system crashes).
b) Class 2 defects are deviations that result in significant restrictions of use for important core functions of the trade that cannot be circumvented for a reasonable period of time that is reasonable for the customer (example: Incorrect application results in terms of content; errors in the storage of data records).
c) Class 3 defects are all other deviations.
(5) The parties shall assign the deviations identified during the acceptance test to the defect classes by mutual agreement. The customer shall document the result of the acceptance test, including the defects that occurred and their classification, in full in an acceptance report within the acceptance period. If the customer has justifiably refused acceptance, SimCog shall remedy the documented defects preventing acceptance. Then the required parts of the acceptance test will be repeated.
6. trades shall be deemed to be accepted as soon as the customer uses them productively or if he has not handed over a list of defects within fourteen (14) days after handover of the trades in which at least one defect preventing acceptance is listed.
X. Warranty
1. SimCog guarantees the contractual and careful execution of the contractually agreed services according to the standards customary in the industry, taking into account its special knowledge and experience. The application of the further provisions of this clause X. for services is excluded.
2. trades that do not meet the agreed requirements or the quality customary in the industry shall be objected to in writing by the customer after acceptance in accordance with Section IX; text form is not permissible. Transmission of the notification by fax or as a scan by e-mail is permissible.
3. the customer's claims for material defects shall become time-barred within 24 months after acceptance, unless SimCog has fraudulently concealed the material defect; the statutory limitation period for the customer's claims for damages due to material defects shall remain unaffected. Legal obligations of the customer to give notice of defects remain unaffected. SimCog can determine the type of subsequent performance at its own discretion.
4. the customer shall support SimCog in the analysis and rectification of the defects to the required extent free of charge. This includes in particular the provision of documents and information to SimCog free of charge to a reasonable extent.
5. SimCog is not responsible for material defects based on faulty or incomplete performance specifications and requirements, concepts, significant operating errors, improper or willful interference with hardware, computer or network configuration or other defective performance by the customer or third parties employed by him. SimCog is also not responsible for material defects, insofar as trades were changed after their acceptance, unless the customer can prove that the defect is not a consequence of the change.
Insofar as malfunctions and damages are the responsibility of the customer, the customer shall reimburse SimCog for all expenses incurred in connection with determining the cause and eliminating the malfunction or damage.
(7) SimCog warrants that the work results provided do not violate any rights of third parties when used by the customer in accordance with the contract. This warranty requires that the customer inform SimCog immediately in writing of any third party rights asserted against him and leave the legal defense and settlement negotiations to SimCog. The customer will support SimCog free of charge to a reasonable extent, in particular by providing the necessary information. Legal obligations of the customer to give notice of defects remain unaffected. Rights in this sense are only those to which the third party is entitled in the Federal Republic of Germany and, if applicable, in other countries in which the customer uses the work results as intended. Clauses X.3 and X.5 shall apply accordingly to defects of title.
XI. Liability
1 SimCog is liable without limitation for gross negligence or intentional damage caused by SimCog, its legal representatives or agents. SimCog is also liable without limitation for damages arising from culpable injury to life, limb or health.
(2) SimCog shall only be liable in cases of breach of material contractual obligations, the breach of which jeopardizes the purpose of the contract and the fulfillment of which the customer could particularly rely on, even in cases of simple negligence. This liability is limited to compensation for damages that were typically foreseeable at the time the contract was concluded. In any case, liability for all cases of slight negligence is limited to the respective project volume.
(3) The above limitations of liability shall also apply to the benefit of SimCog's legal representatives and employees and shall also apply in the event of pre-contractual or tortious liability.
4 SimCog is not liable for force majeure. This includes in particular official orders, failure and disruption of communication networks, traffic and operational disruptions, strikes and lockouts and epidemics.
XII: Recruitment agreement
1. if an employee of SimCog transfers from SimCog to the customer during the term of a contractual relationship or within a period of twelve (12) months after its termination, this shall constitute an employment relationship mediated by SimCog for which the customer shall be obliged to pay a mediation commission. The acceptance of the placement position is irrefutably presumed if the customer has directly or indirectly approached the corresponding employee. The commission consists of a fixed component in the amount of € 50,000 net and a variable component in the amount of half of the gross annual salary of the relevant employee.
2. a brokerage commission pursuant to clause XII.1. shall also be due if the customer directly or indirectly commissions a former employee of SimCog who has left SimCog within the last twelve (12) months during the term of a contractual relationship or within a period of twelve (12) months after its termination. In this case, the placement commission shall be a flat rate of € 50,000 net.
XIII Final Provisions
1. the parties may use each other's companies and trademarks publicly as reference.
(2) If the written form is required according to these Terms and Conditions, the text form shall be sufficient for compliance with these Terms and Conditions, unless otherwise stipulated in the individual case.
3. German law shall apply. The place of jurisdiction for all possible legal disputes shall be Hamburg.
4. deviations from these terms and conditions can only be agreed in writing; the text form is inadmissible.