General Terms and Conditions
§1 Validity
(1) The following General Terms and Conditions (GTC) apply to all services offered by OBS Solutions GmbH - hereinafter referred to as "OBS". These terms and conditions are part of all contracts with OBS for services and deliveries. Deviations from these conditions require the express written consent by OBS.
(2) The open source software Odoo is manufactured by Odoo S.A. and is provided to the client free of charge and will not be delivered by OBS. The use of Odoo and all OBS installations, customizations, and support parametrizations and programmings are governed by the terms of the GNU Affero General Public License v3. A warranty claim for the Odoo code by OBS is therefore explicitly excluded.
§2 Cooperation
(1) Odoo implementation projects are executed on the basis of "agile software development". Before the project is started, the content and time schedule and a budget for the support services are defined together. Configuration and adaptation of the software then run in successive sprints, in which the concrete target system for the client is created.
(2) Subtasks may be modified or replaced during project implementation. Change requests of the client require the text form and the consent of OBS. OBS examines the change request and informs the client of the temporal and resource-related effects. If it is predictable that the agreed budget will be exceeded due to the change request of the client, OBS will inform the client in text form. OBS will also make an additional offer about the expected additional financial expenses. The change request is implemented if the client agrees with the temporal and resource-related effects and, if applicable, with the financial overhead.
(3) The parties cooperate with confidence. If a contracting party recognizes that information and requirements, whether its own or those of the other contracting party, are incorrect, incomplete, ambiguous or unworkable, it must immediately notify the other party in text form of the fact and the recognizable consequences. The parties will then seek an interest-based solution.
(4) Unless otherwise communicated in writing, each party grants to the other party the non-exclusive, non-transferable, free, time and space unlimited right to publish the name, address, logo / company mark and trademarks of the other party. The right of use applies solely to the reference to the other party as a customer or supplier on websites, press releases and other marketing materials (reference).
§3 Service Obligations
(1) The scope of services of OBS results from the specific offer and the corresponding documentation.
(2) For all workshops, consultations, configurations, trainings, adjustments without a fixed price and other support services, the regulations for service contracts apply.
(3) For own OBS modules and fixed price programming, the regulations for service contracts apply.
(4) Odoo Community Modules are to be procured by the client. Alternatively, OBS can be entrusted with the purchase in trust. The costs for the module and the handling costs are borne by the client. For third-party modules OBS assumes no warranty.
(5) The services and / or service sections contained in the offer may be amended, supplemented or extended at any time in writing and in agreement with the OBS standard billing conditions if both parties agree.
(6) Should there be no separate after sales service agreement, services such as consultations, system maintenance, configuration, installation of security updates and system upgrades, trainings and minor adjustments are covered by OBS standard billing conditions. Programming is offered separately at a fixed price.
(7) OBS is entitled to outsource (partial) services to knowledgeable third parties, if this already results from the offer, if the effects of a notified change request are indicated, or if the client agrees. Invoicing will continue via OBS.
§4 Obligations and Requirements
(1) The client shall designate a project manager who actively accompanies the project and who clarifies the questions and decisions arising in the production process in a timely manner for OBS.
(2) The calculation of all services is subject to the assumption that all information that the client must provide (data, lists, texts, images, etc.) is delivered to OBS in an electronically editable form.
(3) The client must ensure that OBS is granted unlimited access to the technical facilities and premises required for the provision of services.
(4) The client prepares the end user documentation required for training purposes. If required, OBS can support or create the documentation in cooperation with the client.
(5) Any necessary post-processing or additional activities of any kind will be remunerated according to the OBS standard billing conditions. In particular, for the use of images under license of third parties OBS assumes no liability.
§5 Acceptance
(1) The client undertakes to thoroughly test each adaptation, programming, modification of the system and module extension for freedom from defects and usability in its specific situation before beginning the operational use of the program. This also applies to programming that he receives as part of the liability for defects and the care of OBS.
(2) The client is expressly advised that even a minor change to the software can affect the performance of the entire system.
(3) After partial acceptance of programming for the fixed price or the operational readiness declaration of the final system by OBS, a 14-day acceptance period start. OBS informs the client of the beginning of the term in text form. Any defects must be named by the client during this period for subsequent improvement by OBS in text form and must be reproducible. If no defect is reported within this period, the acceptance is deemed granted. Minor improvements do not delay the decrease. The total acceptance after the operational readiness declaration may not be refused because of defects which were already recognizable during the partial acceptance, but which were not communicated by the client.
§6 Compensation, payment terms and conclusion of contract
(1) OBS has a claim for compensation equal to the agreed and exhausted budget plus any agreed additional financial expenses.
(2) All services specified in the offer as lesson packages and modules will be remunerated in full by the client in advance.
(3) Fixed price programming will initially be paid with half the down payment. The remaining payment is due with the operational readiness declaration or partial acceptance of the programming. If the customer has a reasoned reservation of acceptance of the purchase, he is entitled to withhold up to 10% of the order value for programming at a fixed price until the complete acceptance has been made.
(4) All other rendered services and productions are remunerated on a monthly basis according to expenditure and on the basis of the valid OBS standard billing conditions. The payment period is 10 calendar days.
(5) All prices are VAT exclusive.
(6) In the event of default of payment by the client, OBS shall be entitled to charge default interest at the statutory rate and to cease further provision of services in accordance with S 3 for the duration of the delay. OBS is not responsible for any resulting delays.
(7) The client must notify OBS immediately if insolvency proceedings are requested or opened against his assets or if he ceases his payments.
§7 Material and legal defects liability for work services
(1) Claims for defects become statute-barred after twelve months, unless the defect was fraudulently concealed. The limitation begins with the total acceptance or its final refusal.
(2) The supplementary performance must be carried out within a reasonable period, irrespective of the number of attempts.
(3) The enforcement of warranty claims depends on the fact that defects are reported in writing within two weeks after their first detection and are reproducible.
(4) OBS can refuse supplementary performance as long as the client is in default with payments from the contract / project and the client has no legitimate interest in withholding the outstanding remuneration.
(5) OBS shall not be liable in cases in which the client has made changes to the services rendered by OBS, unless these changes had no influence on the occurrence of the defect.
(6) The client shall assist OBS in the determination and rectification of the defect and grant it immediate access to the documents from which the more detailed circumstances of the occurrence of the defect arise.
(7) Insofar as a claimed defect, after appropriate examination, can not be attributed to a liability for defects of OBS and the client could have recognized this, the customer may be charged with the expenses incurred by OBS for verification and troubleshooting at the respectively valid remuneration rates.
(8) The above provisions on liability for defects only apply to works contract services provided by OBS.
§8 Liability
(1) OBS is liable for intent and gross negligence in accordance with the statutory provisions. OBS is liable for slight negligence only in case of breach of an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance of which the contractual partner can regularly rely, as well as for damages resulting from injury to life, limb or health. OBS is not liable for slightly negligent breaches of secondary obligations. The essential contractual obligations of OBS are described in S 3 para. 1 and 2 of this contract.
(2) OBS is in no case liable for atypical and therefore unforeseeable consequential damages of any kind. OBS has concluded a liability insurance with a coverage of EUR 500,000.00. The client will inform OBS if there is a risk of large sums of damages, so that an insurance can be concluded with a higher coverage. Without any information to the contrary to OBS, the liability for typical and foreseeable damages is limited to the contract price. OBS is not liable for damages, as far as the client could have prevented their occurrence by reasonable measures, in particular by a program and data backup and sufficient product training of the user.
(3) In particular, OBS assumes no liability for the services and availability of hardware and software or services that are brought into the project by third-party companies that were not commissioned by OBS.
(4) OBS assumes no liability if the customer has general administration access to the system, the server platform or the Github repository.
(5) With the exception of claims arising from tort, claims for damages of the customer, for which liability is limited according to this clause, expire one year from the beginning of the statutory limitation period.
(6) Insofar as the liability of OBS is excluded or limited, this also applies to the personal liability of its employees, employees and other employees and auxiliary persons.
(7) Claims under the Product Liability Act remain completely unaffected.
§9 Termination and Poaching Restraint
(1) Cooperation may be terminated at any time by both parties with a notice period of one month to the end of the month. The termination must be in writing. Remaining fees for services already performed must be paid by the client. The client is not entitled to a refund of already paid hourly packages, modules or other advance payments.
(2) The client undertakes not to actively solicit OBS employees or to offer employment without the consent of OBS for the duration of the contracts of the parties and for a period of one year thereafter. For each case of culpable infringement, the client undertakes to pay OBS a contractual penalty in the amount of the three previous or last gross monthly salaries of the employee who has been recaptured.
§10 Confidentiality
(1) The documents, knowledge and experience provided to the other party of the contract may only be used for the purposes of this contract and not made available to third parties, unless they are intended to be disclosed to third parties or are already known to the third party. Third parties are not the auxiliary persons involved in carrying out the contractual relationship, such as freelancers, subcontractors, etc.
(2) In addition, the parties agree to maintain confidentiality as to the content of this agreement and the knowledge gained in its performance.
(3) The confidentiality obligation also applies beyond the termination of the contractual relationship.
(4) If a contracting party requires so, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be issued to it after termination of the contract, unless the other contracting party can assert a legitimate interest in these documents.
§11 Final Clauses
(1) All changes and additions to contractual agreements must be made in writing for verification purposes. Terminations must be made in writing. Notifications that have to be made in writing can also be made by e-mail.
(2) Should individual provisions of the party agreements be or become wholly or partially ineffective, this shall not affect the validity of the remaining provisions. The parties undertake in this case to replace the invalid provision with an effective provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.
(3) The law of the Federal Republic of Germany applies excluding the UN sales law.
(4) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is 57462 Olpe. OBS is also entitled to sue at the general place of jurisdiction of the client.
