General terms and conditions of bestbytes Service GmbH for the provision of IT services

§ 1 Scope of Application

(1) bestbytes Service GmbH, Pienzenauerstraße 10, 81679 Munich ("Contractor"), provides IT services to its Clients ("Client") exclusively in accordance with the following terms and conditions. These apply only if the Client is an entrepreneur (as set forth in Section 14 of the German Civil Code - BGB) or is a legal entity under public law, or a special public-law fund. Conflicting purchasing conditions of the Client are not agreed upon. They are expressly rejected.

(2) The Contractor shall in particular provide consulting and support services in the field of information technology as specified in Section 2 of this Agreement (hereinafter referred to as "Services"). Provisioning of such services shall be governed by the “time for money” rules set forth in Sections 611 et seq. BGB. The Client shall bear the responsibility for project management and project success.

§ 2 Services of the Contractor

(1) The Contractor shall provide the Client with the Services specified in the offer. The Contractor delivers its Services in accordance with the state of the art at the time of concluding this contract, unless divergent requirements have been agreed upon within the scope of the service description. Legal or tax advice is not the subject of this contract. Service requests shall be made electronically by Client, typically by creating a Jira ticket. The Contractor will promptly notify the Client of any service requests that it deems insufficient.

(2) The Contractor provides its services on weekdays from 9 am to 5 pm. Weekdays are Monday to Friday, excluding nationwide holidays. The Contractor is free to choose the place of performance. If necessary, services will also be provided at the Client's premises.

(3) The Contractor will promptly inform the Client in writing if they recognize or should have recognized obstacles or impairments that may affect the provision of their services.

(4) The Contractor is not authorized to legally represent the Client to third parties unless a power of attorney is expressly granted in each individual case.

(5) The contractor is entitled to refuse to provide services as long as an advance payment requested by the client for the service period (Section 6 Paragraph 3) or a retainer due for the billing period in accordance with Section 6 Paragraph 4 is still available is not paid.

§ 3 Staff

(1) The Contractor is free to choose the individuals he deploys to provide services. He ensures that the individuals he deploys for service provision are sufficiently qualified. If and to the extent the Contractor has named individuals to the Client whom he intends to deploy for service provision, this corresponds to the planning status at the time of the specific naming. The Client has no entitlement to the deployment of the named individuals.

(2) The Contractor will strive for continuity among individuals deployed for the Client under this Agreement. The Contractor will notify the Client in advance as early as possible if there is a planned exchange of individuals. The newly deployed individuals will meet at least the requirements of Section 3.1.

(3) If the qualifications of the individuals deployed by the Contractor do not correspond to the contractually agreed requirements or if the deployment of these individuals is otherwise unreasonable for the Client, the Client will promptly inform the Contractor of this in writing. The Contractor will take suitable measures immediately to remedy the situation.

(4) The Client may not give instructions to the individuals deployed by the Contractor for service provision. This applies in particular if individuals deployed by the Contractor provide services on the Client's premises. Both parties will take appropriate measures to prevent this Agreement or any service provisioning thereunder being construed as a temporary employment relation (“Arbeitnehmerüberlassung”).

§ 4 Subcontractors

The Contractor is authorized to use Subcontractors for service provision. The Contractor will structure the agreements with its Subcontractors in a manner consistent with the provisions of this Agreement.

§ 5 Cooperation of the Client

(1) The responsibility for the success of services under this Agreement remains with the Client. The Client shall provide any agreed-upon acts of cooperation and provide, as a matter of cooperation, any goods and services agreed upon. Notwithstanding that, the Client shall provide any act of cooperation required and generally customary for the proper provision of services by the Contractor. Specifically, the Client will (a) provide any necessary information; (b) grant access to its premises and employees during regular business hours; (c) provide necessary work materials, including workspace; and (d) grant access to its IT systems, each as long as these services are not contractually assigned to the Contractor’s scope of duties.

(2) The Client shall request any cooperation required from Customer hereunder in a reasonably specified form.

(3) Unless otherwise agreed in individual cases, all acts of cooperation are to be provided by the Client free of charge.

(4) The cooperation to be provided by the Client is an obligation, not a mere duty. If the Client does not, not timely, or not as agreed provide an act of coppoeration, and this affects the Contractor's service provision, the Contractor may refuse to provide the affected services. Additional expenses incurred and demonstrated by the Contractor will be separately remunerated without prejudice to further rights of the Contractor based on the agreed-upon conditions.

§ 6 Consideration and Payment Terms

(1) The services provided by the Contractor will be remunerated based on time and billed at the hourly or daily rates specified in the Offer, alternatively, as per the Contractor's valid price list at the time of order placement. Invoicing is done on an hourly or person-day basis. Unless stated otherwise in the proposal, one person-day equals eight full working hours.

(2) Additionally, the Contractor is entitled to reimbursement of documented and necessary expenses for the provision of services, including travel expenses. Travel costs and travel times are charged based on effort. Other expenses will be passed on at cost price with a surcharge of 3%.

(3) If the contractor offers the client services without further specification of the billing model or on the basis of the “Time for Money” billing model, the following applies: Services by the Contractor are rendered and invoiced within performance periods of 30 days. Other than specified in Section 614 BGB, the Client shall pay in advance, before the start of each performance period (and thereafter, before the start of each subsequent performance period), the estimated costs for the upcoming service provision period as outlined in the Offer (advance payment). The actual service provision is documented by the Contractor through performance records and billed in 0.25-hour increments at the end of the performance period. In case of an overpayment due to the advance payment being higher than the actual effort, the Client will receive a credit note on a new invoice. Vice versa, if there is a shortfall, the Contractor shall invoice the Client for the additional amount, which is immediately due.

(4) If the contractor offers the client services based on a retainer model, the following applies: The contractor's services to the client are provided and billed in service periods of one calendar month ("billing period"). The client orders a time allocation (in the sense of a fixed number of person days) from the contractor each month in advance for consumption in the following billing period (“retainer”). The time allocation will be invoiced by the contractor after submitting the respective offer and must be paid by the client before the service begins. The actual provision of services based on the client's service calls during a billing period is documented by the contractor through proof of performance and billed to the retainer in 0.25-hour increments after the end of the service period ("peak billing"). The following applies: If the retainer is not used during the billing period, the underconsumption will not be reimbursed; In this case, notification of the peak bill is unnecessary. If the retainer is exceeded during the billing period, the additional consumption will be invoiced by the contractor at the end of the month in accordance with the agreed remuneration rates (section 6 paragraph 1 above). Additional payments are due immediately.

(5) Unless expressly agreed otherwise, all price indications are exclusive of the applicable value-added tax.

§ 7 Contract Duration and Termination

(1) The contract for a service period is concluded upon acceptance of an Offer made by the Contractor by the Client. The acceptance can also be made through implicit actions, such as the Client paying the invoice sent by the Contractor before the start of a service period (Section 6.3) or by submitting individual work requests, especially Jira tickets (Section 2.1).

(2) This Agreement expires, depending on what occurs earlier, when (a) a fixed project budget agreed upon as such is exhausted, or (b) the Agreement is terminated by either party with a notice period of five days to the end of a service period. The right of both parties to terminate this Agreement with immediate effect under the statutory provisions remains unaffected. Any termination of the Agreement requires written form to be effective; transmission via email is permissible.

(3) Services provided until the termination becomes effective are to be remunerated. In the case of termination by the Client due to a culpable breach by the Contractor, this applies only to the extent that the provided services are usable for the Client.

§ 8 Contact Persons of the Parties

Both parties shall appoint a contact person who serves as a representative and is authorized to make and receive binding statements on behalf of their respective party (hereinafter referred to as "Contact Persons"). The parties are at all times entitled to replace the Contact Persons by providing written notice to the other party.

§ 9 Usage Rights

(1) Subject to the condition precedent of full payment of any due remuneration, the Client receives a non-transferable, simple, spatially and temporally unrestricted right to use the work results developed by the Contractor for its own internal purposes. This usage rights also includes the use by third parties on behalf of the Client, such as other service providers.

(2) The usage right under Section 9.1 also includes the right to sub-license the work results to affiliated companies of the Client.

§ 10 Third-Party Intellectual Property Rights

(1) If third-party intellectual property rights are infringed due to the contractual use of the work results created by the Contractor under this agreement, the Contractor will indemnify the Client against legally established claims by third parties based on existing third-party intellectual property rights, provided that the work results do not rely on specifications or contributions from the Client.

(2) The Client will (a) promptly notify the Contractor in writing of any assertions; (b) leave the decision on the defence against the assertion to the Contractor; and (c) provide the Contractor with all available and reasonably necessary information and support for the defence against such assertion.

(3) The Contractor is released from the obligation to indemnify if the Client does not act in agreement with the Contractor in defending such third-party claims and mitigating potential damages.

§ 11 Liability

(1) In case of intent and gross negligence, the Contractor is liable according to legal regulations.

(2) In the case of simple negligence, the Contractor is only liable if it concerns the violation of a material contractual obligation. In this case, the liability of the Contractor is limited to the foreseeable, contract-typical damage. A material contractual obligation is an obligation whose fulfilment enables the proper execution of a contract in the first place and on whose compliance the other party can regularly rely. Otherwise, the parties' liability is limited to a maximum of EUR 200,000 per case of damage. Liability for consequential damages and pure financial losses is excluded on both sides, in particular for data losses, data recovery costs and lost profits.

(3) Claims for damages under the Product Liability Act and in case of the violation of life, body, or health remain unaffected by the above liability limitations. Claims for indemnification under Section 10.1 of this Agreement are not affected by the above provisions.

(4) The above liability limitations also apply in favor of legal representatives, employees, and vicarious agents of the Contractor.

§ 12 Confidentiality

(1) The parties shall treat all business secrets, including the contents of this contract, as well as any other information marked as confidential by the respective other party (hereinafter referred to as "Confidential Information"), in strict confidence. The receiving party (recipient) shall handle confidential information with the same care as it treats its own confidential information of similar sensitivity, at least with the care of an ordinary merchant.

(2) Use of confidential information is limited to its use in connection with this contract. Without the prior consent of the disclosing party, the disclosure of confidential information to third parties is not permitted. Consents require written form. For the purposes of this paragraph, affiliated companies of the parties and advisors bound by law to confidentiality are not considered third parties.

(3) To the extent that applicable legal obligations require it, the recipient is also entitled to disclose and pass on confidential information. If legally permissible, the recipient will inform the disclosing party before the disclosure of confidential information.

(4) The parties shall impose a confidentiality obligation on their employees or third parties to whom they disclose confidential information within the scope of their respective Subcontractor and employment relationships, provided that the confidentiality obligation also continues beyond the end of the respective Subcontractor or employment relationship unless there is already a corresponding general obligation to maintain confidentiality.

(5) Excluded from the obligation of confidentiality are information that (a) were already generally known at the time of Agreement or become generally known later without violation of the confidentiality obligations contained in this contract; (b) the recipient independently developed without reference to this contract; or (c) the recipient received from third parties or outside of this Agreement from the disclosing party without confidentiality obligations. The burden of proof for the existence of the exceptions mentioned in this paragraph lies with the party relying on the exception.

(6) Upon termination of this contract, the parties shall return or delete confidential information of the other party in their possession upon request of that party. This excludes confidential information for which a longer legal retention period exists and data backups as part of normal backup processes.

(7) The obligation to maintain confidentiality applies for the duration of this Agreement and for a period of 3 years after the termination of this contract.

(8) The Contractor is entitled to use experiential knowledge, such as ideas, concepts, methods, and know-how developed or disclosed during the Agreement execution and stored in the memory of persons deployed by the Contractor to provide services. This does not apply if it violates the industrial property rights or copyrights of the Client. The obligation to maintain confidentiality remains unaffected by this.

§ 13 Privacy

The parties will comply with the respective applicable data protection laws. If and to the extent that the Contractor processes personal data of the Client on behalf of the Client in the course of providing services, the parties will conclude a standard agreement for data processing on behalf of the Client in accordance with Art. 28 GDPR before the processing begins.

§ 14 Rechtswahl und Gerichtsstand

(1) This Agreement is subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980.

(2) The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract, including its validity, is the registered office of the Contractor.

§ 15 Final Provisions

(1) No oral or written side agreements have been made. In particular, the general terms and conditions of the parties do not apply, even if referred to in an invoice or order form, and the other party does not object.

(2) Any assignment of rights under this Agreement requires the prior written consent of the other party. This does not apply to the assignment of payment claims.

(3) Changes or additions to this Agreement require written form for their effectiveness, unless a stricter form is prescribed by law. This also applies to a change to this written form clause. The written form is maintained, in particular, by the exchange of communications by email or fax, unless expressly provided otherwise in this contract.

(4) Should individual provisions of this Agreement be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions of this contract. The parties shall replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intended legal and economic effect of the invalid or unenforceable provision, which they would have agreed upon reasonably if they had considered the invalidity or unenforceability of the respective provision at the time of concluding this contract. The same applies in the case of a regulatory gap.

As of January 2024