General Terms and Conditions of metafinanz Informationssysteme GmbH (hereafter “metafinanz“)
(Dated 05/2018)
§ 1 Contractual basis / Exclusion of general terms and conditions
These terms and conditions (hereafter “GTCs”) shall apply to all current or future services provided by metafinanz to client, (hereafter “Client”) unless otherwise agreed upon separately and documented in writing. Metafinanz rejects any Client’s own terms and conditions unless otherwise expressly agreed. Hereby metafinanz rejects own conditions of the client, as far as they contradict these conditions, unless it is expressly agreed otherwise. These General Terms and Conditions shall also apply if metafinanz, in the knowledge of conflicting or deviating terms and conditions of the client, carries out the services without explicit reservation.
§ 2 Performance of Services, Client Obligations
2.1 metafinanz will perform the services itself or have the services performed by qualified sub-contractors in a workmanlike manner all in accordance with commonly acknowledged industry standards valid when placing the order or in absence of such standards in good practice. The starting and ending dates of the respective assignments and any other project-related dates shall be expressly agreed in writing.
2.2. Service and quality-related descriptions shall not be considered as a guarantee of features or characteristics (zugesicherte Eigenschaft). Any guarantee shall only be valid if and when explicitly confirmed in writing by metafinanz.
2.3 The Client shall designate a qualified contact person who (i) provides the relevant information, including documents, to metafinanz in a timely manner, (ii) grants access to the Client’s business experts and (iii) is entitled to make or can enable decisions.
2.4 The Client shall ensure the provision of required cooperation and collaboration as necessary in a reasonable and timely manner so that metafinanz may perform its contractual obligations. Any delays and/or change requests by Client may lead to the extension of agreed timelines.
2.5 The right to give professional and disciplinary instructions to the employees or employees of subcontractors involved by metafinance for the performance of the contractual Services is exclusively with the respective employer of the concerned person, irrespective of the place where the contractual services are carried out.
§ 3 Fees
3.1 Any fees are plus VAT and shall be stipulated in the applicable individual contract. Unless otherwise agreed, services are rendered on a times and material basis (daily or hourly rate). A daily rate shall equal to 8 hours and shall be rendered from Monday to Friday from 6 a.m. to 8 p.m. Any services provided outside of the aforementioned business hours shall be charged on a pro-rated basis. Subject to the Client’s approval, the daily rate shall be increased proportionally as follows: (i) 30% for any night work, (ii) 25% for work provided on Saturdays, (iii) 50% for work provided on Sundays, (iv) 100% for work provided on bank holidays. Bank holidays shall designated as holidays where metafinanz has its registered office. The mark-up shall not be cumulative, but the respective higher rate shall be applied.
3.2 For time and materials engagements, metafinanz will invoice the Client on a monthly basis and provide documentation for the expenditure of time by the fifteenth of each month for the preceding month. If the Client does not reject or object to the timesheets in writing within 2 weeks after delivery and metafinance has notified the Client in the course of delivery of the timesheets about the following consequence, the timesheets shall be deemed accepted. Fees shall be due without deductions within four (4) weeks from receipt of the invoice. In case of late payment metafinanz shall be entitled to charge default interest equal to 9% points above the basic rate for interest from the respective due date.
3.3 Fees for services with deliverables or services where movable items are to be produced or manufactured shall be due upon acceptance of the respective services, unless pre-payment schedules are agreed in the applicable individual order.
3.4 All claims of metafinanz shall be compensated according to the agreed remuneration for the services to be rendered, subject to Section 3.1. metafinanz shall be entitled to invoice costs for travel time, accommodation and travel expenses for services that are provided on a times and materials basis and not provided at the registered office of metafinanz. For each hour travelled, the Client shall be invoiced at 1/12 of the daily rate.
3.5 The Client shall not be entitled to offset any counterclaim or withhold any payments unless such claims are undisputed or finally awarded.
§ 4 Warrenty
The statutory warranty provisions for services with deliverables and for contracts dealing with the supply of movable items to be produced or manufactured shall apply. The limitation period shall be 12 months from acceptance. The Client shall be entitled to rescind from the contract only if (i) metafinanz fails to rectify the defect twice or (ii) if metafinanz refuses to repair the defect. Notwithstanding the previous sentence, for claims for damages of the client against metafinance due to injury of life, body, health, due to damage caused by intent or gross negligence, in case of covenant, in case of fraudulently concealed defects as well as in the case of Product Liability the liability of metafinanz shall be subject to the statutory limitation period. The agreed warranty period shall apply to accepted guarantees. Notwithstanding the aforementioned the Liability of metafinance for damages shall be determined in accordance with paragraph 5.
§ 5 Liability
5.1 The liability of metafinanz shall be unlimited for claims for death, personal injury or damage to health, guarantee and any claims based on willful misconduct or gross negligence.
5.2 metafinanz shall not be liable for damages caused by slight negligence, unless material contractual obligations have been breached. In case of a breach of material contractual obligations caused by slight negligence, the liability shall be limited to damages directly connected to the conduct giving raise to liability as well as to damages that were reasonably foreseeable by metafinanz when entering into the agreement. The limited liability shall also apply to agents, subcontractors and legal representatives of metafinanz.
5.3 Liability pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
§ 6 Termination
6.1 If terms have been agreed, the individual contract may not be terminated for purposes of convenience. If terms have not been agreed in the individual contract, (i) the respective individual contract shall be entered into for an indefinite period of time and (ii) may be terminated with a notice period of 4 weeks to the end of a calendar month.
6.2 Extraordinary termination rights for cause remain unaffected. This shall apply in particular if (i) a significant change for the worse in a party’s financial circumstances occurs or is likely to occur and that fulfilment of the contractual obligations is jeopardized due to the financial situation or (ii) a party files for bankruptcy or if judicial or extra judicial proceedings to settle outstanding debts have been initiated.
6.3 If the client terminates the contract before the expiry of the agreed term or before the contractual service has been fully completed, the Client shall compensate to metafinanz the expenses that metafinanz (i) has undergone in reliance on the continued existence and completion of the contract, and (ii) is unavoidably still required to pay, and (iii) has to spend on liquidation of contracts in the subcontracting chain. This does not apply if the client terminates for reasons for which metafinanz is responsible. If the contractual subject consists in the achieving a success § 648 BGB applies instead of the regulation according to sentence 1.
§ 7 Privacy, Confidentiality
7.1 The parties undertake to treat the information mutually received pursuant to the contract from the other party or companies affiliated with them in accordance with § 15 et seq. AktG („Confidential Information“) in strict confidence pursuant to this Section 7.
7.2 Confidential information does not include such information,
• that are or have become publicly known or publicly available without the other party being responsible; or
• demonstrably developed by the parties independently from and without infringing this Agreement; or
• of which the parties have demonstrably gained knowledge or have obtained otherwise than by the other party and without breach of contractual or statutory confidentiality obligations.
7.3 Confidential information shall only be made accessible to:
• members of the organs, employees and vicarious agents of the parties, insofar as they need to know in the project and exclusively for the purposes of the contractual project,
• Authorities and courts on the basis of legal obligation, court decision or official order. Before disclosing Confidential Information, the disclosing party will promptly notify the other to as far as permitted by law.
7.4 Metafinanz assumes no responsibility for the accuracy and completeness of the Confidential Information provided. This does not limit the liability of metafinanz for intent, gross negligence or undertaken presentations.
7.5 For the liability of metafinanz in the case of breaches of obligations under section 7, Clause 5 hereinabove applies.
7.6 The obligations of privacy and confidentiality shall survive the termination of the contract and expire in the event of premature termination after 5 years. Otherwise, the obligations under section 7 expire after the expiry of 5 years after full performance of the contractual service and full payment of the agreed remuneration.
§ 8 Usage Rights
8.1 Prior to the complete payment of the agreed remuneration is made metafinanz grants the Client the non-exclusive and limited to the contract term right to use the materials exclusively created for Client (“Client Material”). Metafinanz shall be granted perpetual, unlimited non-exclusive rights to use, copy, modify, transfer and sub-license the Client Material.
8.2 If metafinanz includes or has included metafinanz material (“metafinanz Material”), the Client shall be granted limited to the contract period a sub-licensable right to use, modify and transfer the metafinanz Materials solely in connection with the Client Material. metafinanz Material includes, but is not limited to material (i) that metafinanz has developed prior to the respective project at its own cost, (ii) generic material, tools, frameworks and (iii) interfaces and algorithms. metafinanz shall retain the exclusive right to use any metafinanz Material. If metafinanz uses third party software to produce the Client Material, solely the terms and conditions of the third party vendor shall apply.
8.3 The client receives the right of use according to section 8.1, sentence 1 to the Client Materials as an exclusive and permanent right of use after full payment of the agreed remuneration.
8.4 If Open Source Software is used in connection with the provision of the contractual services, especially if in created Software open source components, such as libraries, are integrated, the contractor undertakes to inform the client of this intent in writing as far as the Contract does not provide for that yet. If the Contract has not provided for the use of open Source Software the client has the right to object to the use of Open Source Software. If the contractor omits this information, the client has the right to withdraw from the contract at any time without stating any reasons. For open source software, the terms of use of the respective licensor apply.
§ 9 Compensation for Damage
metafinanz shall be entitled to claim damages if (i) the Client does not fulfill its obligations, or (ii) the Client is in default following a warning notice, or (iii) if the Client prematurely terminates an individual order.
§ 10 Final Provisions
10.1 All agreements must be in writing.
10.2 The GTC and any individual order(s) and contractual relations between the parties shall be exclusively governed by the laws of Germany. The UN Sales Convention (CISG) and the conflict of laws rules shall be excluded.
10.3 The exclusive place of jurisdiction shall be Munich.
