Terms and Conditions of
ai-omatic solutions GmbH
§ 1 General
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The following General Terms and Conditions ("GTC") apply to all contracts between ai-omatic solutions GmbH ("ai-omatic") and the customer for the provision of services in the field of software development.
§ 2 Services
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ai-omatic will provide services for the customer. These are based on an offer submitted by ai-omatic and signed by the customer.
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For the offers these terms and conditions are valid as binding regulations between the parties. As far as the provisions of the offer and the terms and conditions contradict each other, the provisions of these terms and conditions shall prevail in case of doubt. The parties may only agree to deviating provisions in an offer if the offer expressly refers to the deviation from these Terms and Conditions.
§ 3 Cooperation and Duties to Cooperate
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The parties shall cooperate on the basis of trust. If one party recognizes that information and requirements, whether its own or those of the other party, are incorrect, incomplete, ambiguous or impracticable, it shall immediately notify the other party of this and of the consequences it recognizes. The parties will then look for a solution that is in line with their interests and will strive to achieve this, if necessary, in accordance with the provisions regarding changes in performance.
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The customer supports ai-omatic in the fulfillment of the contractually owed services. This includes in particular the timely provision of information, of competent staff, of means of communication and connections as well as of hard- and software and the making accessible of premises as far as this is necessary. The customer will instruct ai-omatic in detail about circumstances to be considered when working in his premises and on his technical equipment. The customer shall cooperate at his own expense.
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The customer shall ensure that all cooperation acts necessary for the performance of the agreed service are performed in time, completely and free of charge for the contractor. The cooperation services to be provided by the customer are a prerequisite for the contractual performance of services by ai-omatic.
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ai-omatic informs in time about the necessary cooperation services and these become obligatory for the customer only after they have been confirmed by the customer (e-mail is sufficient). If the customer does not provide the cooperation services, resulting increases in fees or postponements of deadlines will be at his expense.
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If it should be necessary for ai-omatic to get access to the customer's communication and data processing systems/servers in order to provide the service, this will be ensured by the customer. The access will be done via a remote connection for IT service providers (e.g. via Remote Desktop Protocol (RDP), Teamviewer, etc.). For the installation of new software releases or administration of the server the customer will grant ai-omatic the necessary admin rights in time and will name all necessary passwords.
§ 4 Contact person
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The parties shall each appoint a contact person and his/her deputy. These shall be the exclusive contacts for the other party for all questions concerning the legal framework of the cooperation for arrangements and agreements of all kinds. The parties assure that the contact persons and deputies to be appointed by them are fully authorized to make all decisions concerning the cooperation.
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The parties shall be free to replace the contact persons and their deputies appointed by them by other persons. Changes shall be notified to the other party in writing or by e-mail without undue delay. When making changes, the parties shall ensure that no disruptions occur in the cooperation and that newly appointed persons have all the necessary information and expertise required for the smooth further course of the project.
§ 5 Remuneration
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The remuneration results from the respective offer/contract.
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Invoices from ai-omatic are payable within 14 days from date of invoice.
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All amounts are subject to the statutory value added tax.
§ 6 Additional expenses, additions and changes
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All services of ai-omatic, which are based on subsequent change and supplement requests of the customer, are considered as additional expenditure. Supplementary requests must generally be made in writing. ai-omatic is not obligated to make changes or additions that relate to services that have already been accepted. This also applies if an acceptance of the respective project has not yet taken place, although the prerequisites for an acceptance already exist.
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If ai-omatic decides to make changes and additions to already accepted works, these will be agreed and executed as new orders.
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In case of change requests, which can be checked within 1 working hour and can probably be implemented within 8 working hours, ai-omatic can dispense with the procedure according to § 6 para. (4) - (7).
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ai-omatic will immediately check which effects the desired change will have especially with regard to remuneration, additional work and deadlines. If ai-omatic recognizes that services to be rendered cannot be performed or can only be performed with delay due to the extent of the examination, ai-omatic shall inform the customer immediately and point out that the change request can further only be examined if the performance of the originally agreed services is postponed for the duration of the examination of the change request. If the customer declares his agreement with this postponement, ai-omatic will immediately carry out the examination of the change request. Otherwise the change procedure ends.
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After the examination of the change request ai-omatic will present to the customer the effects on the agreements made. The presentation will either contain a detailed proposal for the implementation of the change request or information on why the change request cannot be implemented technically.
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The parties shall immediately agree on the content of a proposal for the implementation of the change request and attach the result of a successful agreement to the text of the agreement to which the change relates as a supplementary agreement to the affected offer.
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If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain in effect. The same shall apply in the event that the customer does not agree to a postponement of the services for the further performance of the test pursuant to § 6 para. (4).
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The dates affected by the change procedure will be postponed as far as necessary taking into account the duration of the review, the duration of the vote on the change proposal and if necessary the duration of the change requests to be executed plus a reasonable usual start-up period. ai-omatic will notify the customer of corresponding new date proposals; the parties will then mutually agree on the new dates.
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The customer has to bear the expenses resulting from the change request. This includes in particular the examination of the change request and the preparation of a change proposal.
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ai-omatic is entitled to slightly change the services to be provided according to the offer if the change is mandatory and reasonable for the customer. ai-omatic will coordinate such changes with the customer prior to their implementation.
§ 7 Withdrawal and termination
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The customer can only withdraw from the contract due to a breach of duty not consisting in a defect of the work, if ai-omatic is responsible for this breach of duty.
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The termination according to § 649 BGB is excluded.
§ 8 Rights of use and copyrights
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The customer receives a simple, temporally and spatially unlimited right of use for the intended use of all service results created within the scope of the project as well as of the software tools and software modules developed by ai-omatic itself and used by ai-omatic within the scope of the service creation. As far as the parties do not agree otherwise, the intended use includes the right to load, display and run the software. In addition, the rights under § 69d (2) UrhG and § 69d (3) UrhG as well as the rights and obligations under § 69e UrhG shall apply to the customer. Further uses, in particular the free editing of the software, are not permitted.
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The Customer shall not be granted administrative access to the software system or access to the source code. He is not entitled to use the source code.
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A granting and/or transfer of the rights of use granted in paragraphs (1) - (2) to third parties is not permitted, unless the customer completely relinquishes his own rights of use.
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In the case of standard software and standard software modules from third-party providers, the customer shall receive a right of use in accordance with the respective license terms of the third-party provider.
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For open source software and third party externally licensed media content (e.g. image and layout material), the customer also receives a right of use according to the relevant license terms. ai-omatic will inform the customer in time before the use of open source software or content that falls under this regulation and will obtain the customer's consent for their use.
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The granting of the rights of use will only become effective with the complete payment of the agreed remuneration from the offer/contract.
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The customer expressly declares to dispose of all necessary rights of use of software, media content etc. provided by him, which are to be processed for him by ai-omatic in connection with this agreement according to the order.
§ 9 Acceptance
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As soon as ai-omatic has created a concept or specification that meets the contractual requirements, the customer will accept it by declaration in text form (§ 126 b BGB) within a maximum of 7 days after provision.
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As soon as ai-omatic has completed a project and it meets the contractual requirements, ai-omatic will notify the customer of the acceptability in text form (§ 126 b BGB). With receipt of this declaration a period of 14 days starts for the customer, within which the customer is obliged to check and accept in written form. Any existing defects have to be reported to ai-omatic in writing in the acceptance protocol. ai-omatic will remedy these defects within a reasonable period of time and make the project available again for acceptance.
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If the acceptance period expires without a declaration of acceptance or a notice of defects being received by ai-omatic, the work product is deemed to be accepted without defects upon expiry of the period. The work product shall also be deemed to have been accepted without defects if the customer puts it into operation, publishes it or pays the remuneration agreed for this purpose.
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The declaration of acceptance may not be refused due to insignificant defects. Insignificant defects are those which do not or not significantly impair the usability.
§ 10 Warranty
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The customer is aware that software cannot be created completely free of defects. Insignificant defects therefore do not hinder the use of the software as agreed.
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ai-omatic warrants that the work products provided by ai-omatic within the scope of the agreement are free of third party intellectual property rights and to the knowledge of ai-omatic no other rights exist that restrict or exclude a contractual use. ai-omatic indemnifies the customer from all possible third party claims in this respect.
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If the contractual use is impaired by industrial property rights of third parties, the customer has to inform ai-omatic immediately after becoming aware of this. In this case ai-omatic has the right, to an extent reasonable for the customer and in consultation with the customer, at the discretion of ai-omatic either to modify the contractual services in such a way that they fall outside the scope of protection but nevertheless comply with the contractual provisions, or to obtain the authority that they can be used without restriction and without additional costs for the customer in accordance with the contract.
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ai-omatic does not guarantee that the created work products will keep their contractual suitability in case of general changes in technology (e.g. browsers, server technology, plug-ins operating systems, W3C standards, online access etc.) even under the changed circumstances. There shall be no entitlement to subsequent adaptation.
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As far as this is possible and reasonable for the customer with regard to the effects of the defect, ai-omatic can provide the customer with an interim solution to circumvent the defect (workaround) until the defect is finally remedied.
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The warranty claim is void if the customer changes work products himself or has them changed by a third party without the consent of ai-omatic, unless the customer proves that the defects still in question were not caused by the changes made by him or the third party or by the omitted maintenance/update actions.
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The warranty period is 1 year and begins with the acceptance of the work results. The statutory limitation periods for claims arising from bodily injury and claims under the Product Liability Act as well as warranty claims shall remain unaffected.
§ 11 Liability
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ai-omatic is liable for the damages incurred by the customer in connection with the service provision, as far as these are caused by intentional or grossly negligent behavior, without limitation.
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ai-omatic is furthermore liable for the damages incurred by the customer in connection with the service provision, as far as they are caused by negligent violation of an essential contractual obligation. In this case the liability of ai-omatic is limited to the typically foreseeable damage at the time of conclusion of the contract.
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The above limitations of liability shall not apply in the case of liability for personal injury and in the case of liability under the Product Liability Act.
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As far as ai-omatic creates the work results according to the instructions of the customer and/or on the basis of content provided by the customer, ai-omatic does not assume any liability that the work results are legally compliant. For the content provided by the customer ai-omatic does not assume liability in any case. It is the responsibility of the customer to have the services or work results to be provided by ai-omatic legally verified prior to their publication.
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The customer is obliged to take effective measures to prevent and mitigate damages. For the loss of data and/or programs ai-omatic is not liable insofar as the damage is based on the fact that the customer has omitted to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
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Liability is excluded for defects in programs of the customer, which already exist before ai-omatic took over the program. Decisive is the processing status at the time of the beginning of the work of ai-omatic.
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The aforementioned regulations are also valid for the benefit of ai-omatic's vicarious agents.
§ 12 Deadlines
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Deadlines for the performance of services shall only be considered as bindingly agreed upon if they are confirmed in writing by ai-omatic.
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Delays in performance due to force majeure (e.g. strike, lockout, official orders, general disturbances of telecommunication, etc.) and circumstances in the area of responsibility of the customer (e.g. non-timely provision of cooperation services, delays by third parties attributable to the customer, changes of services, etc.) are not the responsibility of ai-omatic and entitle ai-omatic to postpone the provision of the affected services by the duration of the hindrance plus a reasonable start-up time. ai-omatic will inform the customer about delays in performance due to force majeure.
§ 13 Data protection
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ai-omatic undertakes to comply with the legal provisions on data protection, in particular to collect, process and use personal data only for the purpose agreed with the customer.
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ai-omatic commits itself to use only personnel that has been committed to data secrecy.
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ai-omatic further commits itself to entrust subcontractors/freelancers with the processing of personal data only if they have previously committed themselves in writing to comply with the data protection regulations.
§ 14 Confidentiality, press release
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The documents, knowledge and experience provided to the other party may be used exclusively for the purposes of the cooperation and may not be made available to third parties unless they are intended to be made available to third parties or are already known to the third party.
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Third parties do not include auxiliary persons such as freelancers, subcontractors, etc., who are called in to carry out the contractual relationship.
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In addition, the parties agree to maintain confidentiality about the knowledge gained during the execution of a project.
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The confidentiality obligation shall also apply beyond the termination of the contractual relationship.
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If one party requests it, the documents handed over by it such as strategy papers, briefing documents etc. are to be handed over to it after termination of the contractual relationship, as far as the other party cannot claim a legitimate interest in these documents.
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ai-omatic is allowed to name projects carried out for the customer publicly as reference.
§ 15 Non-solicitation
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The customer undertakes not to entice away any employees of ai-omatic or to employ them without the consent of ai-omatic for the duration of the cooperation of the parties and for a period of one year thereafter.
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For each case of violation of the poaching prohibition the customer will pay a contractual penalty to ai-omatic, the amount of which is placed in the reasonable discretion of ai-omatic and which in case of dispute can be reviewed by the competent court upon request of the customer.
§ 16 Miscellaneous
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The assignment of claims is only permitted with prior written consent of the other party. Such consent may not be unreasonably withheld. The provision of § 354 a HGB remains unaffected.
§ 17 Final Provisions
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Verbal collateral agreements do not exist. All amendments and additions to these terms and conditions must be made in writing to be effective. This shall also apply to the amendment of the written form clause itself.
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The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
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The place of jurisdiction for all disputes arising from or in connection with these terms and conditions is the registered office of ai-omatic.