1. Scope of application

a) The terms and conditions are an integral part of all deliveries, services and offers of CONIGON GmbH, Gathmannstraße 9 in 66763 Dillingen for all countries outside France, as well as of Conigon France SAS for France – both hereinafter referred to as ‘CONIGON’. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of services or goods. Conflicting terms and conditions of the customer shall only be recognised if they have been expressly agreed in writing. Collateral agreements and additions to the contract are legally invalid unless confirmed in writing.

b) Employees of CONIGON are not authorised to make verbal collateral agreements or give verbal assurances that go beyond the content of the respective contract, including these terms and conditions.

c) CONIGON is authorised to amend or supplement these General Terms and Conditions at any time. If the customer does not object within 14 days of receipt of the notification of change, but at the latest by the time at which the changes are to come into force, they shall become effective in accordance with the announcement. If the customer objects in due time, CONIGON shall be entitled to terminate the contract at the time at which the amended terms and conditions are to come into force.

d) CONIGON is authorised to transfer contractual services in whole or in part with all rights and obligations to third parties or to have them carried out by third parties.

e) These GTC shall also apply to all future business relationships.

2. Collaboration

a) The parties shall work together in a spirit of trust and shall inform each other immediately in the event of deviations from the agreed procedure or doubts as to the correctness of the contractual partner’s procedure.

b) If the customer recognises that its own information and requirements are incorrect, incomplete, unclear or impracticable, it must inform CONIGON of this and the consequences it recognises without delay.

c) The contracting parties shall name contact persons and their deputies who shall be responsible for and expertly manage the implementation of the contractual relationship for the contracting party naming them.

d) The parties must notify each other immediately of any changes in the named persons. Until such notification is received, the previously named contact persons and/or their deputies shall be deemed authorised to make and receive declarations within the scope of their previous power of representation.

e) The contact partners shall communicate at regular intervals about progress and obstacles in the implementation of the contract in order to be able to intervene in the implementation of the contract if necessary.

3. Software deliveries, projects, acceptance

a) Insofar as software is included in the scope of delivery, the customer shall be granted a right of use for an unlimited period of time and territory, insofar as this does not conflict with the conditions specified by the manufacturer. A multiple right of use requires a special agreement with the manufacturer of the software. In the event of infringement, the customer shall be liable for all damages incurred. Furthermore, the terms and conditions of the respective software manufacturer shall apply. In the case of software deliveries, the service content and scope of services are set out in the service description.

b) The right to use project results can only be transferred to third parties with the consent of CONIGON. Consent may be granted in the contract in which the realisation of the respective project is agreed. All copyrights to project results are reserved.

c) In the case of the development of (customised) software, the customer shall receive the right of use and disposal for the entire result of the work carried out by CONIGON. The right to use software developed or supplied by CONIGON includes the use and duplication for the customer’s internal use. The customer may not make the software accessible to third parties, either in whole or in part. Persons who exercise the right of use on behalf of the customer or who are wholly owned subsidiaries are not deemed to be third parties.

d) Unless otherwise stipulated above, CONIGON assumes no liability within the scope of service contracts for the respective service result sought by the client, in particular not that it is free of third-party property rights or does not infringe such rights.

e) CONIGON shall make the software developed in accordance with the contract available for acceptance by notifying the customer without delay. Delivery of the software is equivalent to notification. If the customer does not accept the work after the software has been made available for a reason other than an immediate and justified complaint, the software shall be deemed to have been accepted one week after delivery. Use of the software by the client, whether in whole or in part, shall be deemed equivalent to acceptance.

f) Unless expressly agreed otherwise in writing, CONIGON shall retain the copyrights and industrial property rights as well as the exploitation rights to the software created and delivered.

4. Indemnification obligation for SaaS or ASP contracts.

a) If CONIGON provides the customer with the option of using software solutions installed and running on CONIGON servers by way of SaaS (Software as a Service) or ASP (Application Service Providing) contract models, the customer alone shall be responsible for any use of CONIGON’s servers and the software programmes provided by CONIGON using their access accounts and access data. In this respect, the customer expressly undertakes not to carry out or cause to be carried out any unlawful acts, in particular acts in breach of competition or copyright law or criminal offences, including denial of service (DoS) attacks or similar activities, via CONIGON’s servers or using the programmes running on CONIGON’s servers.

b) The customer undertakes to provide compensation for any damages incurred by CONIGON as a result of actions within the meaning of paragraph 1 using the customer’s access accounts or access data, including as a result of any claims by third parties, e.g. for removal, omission, compensation, etc.

c) The customer further undertakes to indemnify CONIGON against all claims for damages and other claims as a result of actions using the customer’s access accounts or access data via CONIGON’s servers and using the software programmes provided by CONIGON, to which CONIGON may be exposed by third parties. This indemnification obligation also includes the obligation to fully indemnify CONIGON from legal defence costs (e.g. court and lawyer’s fees etc.).

d) If and insofar as the customer uses its access accounts and access data, CONIGON’s servers and the software programmes provided by CONIGON for unlawful conduct within the meaning of paragraph 1 or the access accounts and access data, CONIGON’s servers and the software programmes provided to the customer by CONIGON are used for unlawful conduct within the meaning of paragraph 1, CONIGON shall be entitled to block or restrict the customer’s access in an appropriate manner. Furthermore, in these cases CONIGON is also entitled to terminate the contract for good cause.

5. Exemption obligation for hosting contracts

a) If CONIGON provides the customer with computer storage space for the storage of the customer’s website (host providing), the customer alone shall be responsible for the content that the customer stores on the contractual storage space and/or makes accessible on the Internet using the contractual storage space. The customer hereby expressly assures that he will not store any content on the contractual storage space or / and make it accessible on the Internet using the contractual storage space, the provision, publication or use of which violates applicable law or the rights of third parties, in particular criminal, competition or copyright regulations.

b) The customer undertakes to indemnify CONIGON against third-party claims of any kind that result from the illegality of content that the customer has stored on the contractual storage space and/or made accessible on the Internet using the contractual storage space. The indemnification obligation also includes the obligation to fully indemnify CONIGON from legal defence costs (e.g. court and lawyer’s fees).

c) If and as soon as the customer uses the contractual storage space to store illegal content and / or to make illegal content accessible on the Internet, CONIGON shall be entitled to block access to this content via the world-wide-web by means of suitable measures.

d) The customer shall only be authorised to transfer the contractual storage space to a third party for use in part or in full, for a fee or free of charge, if CONIGON agrees in writing to such a transfer of use to the third party and the third party has assumed the obligations provided for in the above paragraphs 1-3 jointly and severally with the customer in writing to CONIGON.

e) If the customer or a third party to whom the customer has transferred the contractual storage space for use in part or in full, whether for a fee or free of charge, persistently breaches its obligations in accordance with paragraphs 1 to 4 above, CONIGON shall be entitled to terminate the contract for good cause.

6. Obligations of the customer to cooperate

a) The customer shall support CONIGON in the fulfilment of its contractually owed services. This includes in particular the timely provision of information, data material and hardware and software. The customer shall instruct CONIGON in detail regarding the services to be provided by CONIGON.

b) The customer shall provide the required number of its own employees with the necessary expertise to fulfil the contractual relationship.

c) If the customer has undertaken to provide CONIGON with materials (image, sound, text or similar) as part of the execution of the contract, the customer must provide these to CONIGON immediately and in a common, directly usable, preferably digital format. If it is necessary to convert the material provided by the customer into another format, the customer shall bear the costs incurred for this. The customer shall ensure that CONIGON receives the rights required to utilise these materials.

d) The customer is obliged to carry out data backups and to ensure that lost data can be restored with reasonable effort. The additional costs incurred by CONIGON as a result of the customer having breached this obligation in a reasonable manner shall be charged to the customer. CONIGON reserves the right to claim further damages.

7. Third party participation

The customer shall be liable for third parties who work for CONIGON in the customer’s area of activity at the instigation of or with the tolerance of the customer, in the same way as for vicarious agents. CONIGON is not responsible to the customer if CONIGON is unable to fulfil its obligations to the customer in full or in part or in good time due to the behaviour of one of the aforementioned third parties.

8. Appointments

a) Dates for the provision of services may only be confirmed on the part of CONIGON by the contact person.

b) CONIGON shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions to telecommunications, etc.) and circumstances within the customer’s area of responsibility (e.g. failure to provide co-operation services on time, delays caused by third parties attributable to the customer, etc.) and shall entitle CONIGON to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up time. CONIGON shall notify the customer of delays in performance due to force majeure.

9. Service changes

a) If the customer wishes to change the contractually agreed scope of the services to be provided by CONIGON, it shall express this change request to CONIGON in writing. The further procedure shall be governed by the following provisions. CONIGON may dispense with the procedure set out in paragraphs 2 to 5 in the case of change requests that can be checked quickly and are likely to be implemented within 8 working hours.

b) CONIGON shall check what effects the desired change will have, in particular with regard to remuneration, additional costs and deadlines. If CONIGON recognises that services to be provided cannot be performed or can only be performed with a delay due to the review, CONIGON shall inform the customer of this and inform the customer that the change request can only be reviewed if the affected services are initially postponed for an indefinite period of time. If the customer agrees to this postponement, CONIGON shall carry out the review of the change request. The customer is entitled to withdraw his change request at any time; the initiated change procedure then ends.

c) After reviewing the change request, CONIGON shall explain to the customer the effects of the change request on the agreements made. The presentation shall contain either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.

d) The contracting parties shall immediately agree on the content of a proposal for the implementation of the amendment request and attach the result of a successful vote to the text of the agreement to which the amendment relates as a supplementary agreement.

e) If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged. 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 inspection in accordance with paragraph 2.

f) The dates affected by the change procedure shall be postponed taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be carried out. CONIGON shall inform the customer of the new dates.

g) The customer shall bear the costs arising from the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. If the parties have agreed on daily rates, the expenses shall be calculated according to these rates, otherwise according to CONIGON’s usual remuneration.

10. Remuneration

a) CONIGON shall be remunerated in accordance with the current CONIGON price list. This shall be made available to the customer. Billing shall be based on time spent on a monthly basis.

b) CONIGON is authorised to change the remuneration rates on which the agreements are based at its reasonable discretion (§315 BGB) due to circumstances arising after the conclusion of the contract.

c) Travelling expenses
For service days provided by Conigon GmbH on the client’s premises, travelling and accommodation costs will be invoiced separately. Expenses are included in the daily rates and will not be invoiced additionally.
• Travelling expenses: Charging from Dillingen Saar in the amount of a DB 1st class ticket or, if travelling by car, a flat rate of € 0.30 per kilometre driven.
• Flight costs Europe: Offset of an economy class flight ticket
• Accommodation costs: according to receipt (maximum €100 per night) – unless the hotel is provided by the client
• Travelling time will be charged at 50%

d) If the parties have not reached an agreement on the remuneration of a service provided by CONIGON, the provision of which the customer could only expect in return for remuneration, the customer must pay the usual remuneration for this service. In case of doubt, the remuneration rates demanded by CONIGON for its services shall be deemed customary.

e) All contractually agreed remuneration is subject to statutory value added tax.

11. Rights

a) CONIGON grants the Customer the simple right to use the services provided in accordance with the contract, which is not restricted in terms of time or place. If software is the subject of the services, §§69 d and e UrhG shall apply.

b) CONIGON provides support as part of its services. Support can be reached by e-mail on working days (Monday – Friday) during CONIGON’s business hours.

c) Any use beyond that described in paragraph 1 is not permitted. In particular, the customer is prohibited from granting sub-licences and from reproducing, renting or otherwise exploiting the services.

d) Until full payment of the remuneration, the customer is only permitted to use the services provided on a revocable basis. CONIGON may revoke the use of such services for which the customer is in default of payment for the duration of the default.

12. Liability and limitation of liability

a) CONIGON shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent and gross negligence, including intent or gross negligence on the part of representatives or vicarious agents of CONIGON. Insofar as CONIGON is not accused of wilful breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.

b) CONIGON shall be liable in accordance with the statutory provisions if a material contractual obligation has been culpably breached; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.

c) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

d) Claims for damages arising from impossibility of performance (§§ 275 ff. BGB), from positive breach of contract (§§ 280, 241 Para. 2 BGB), from culpa in contrahendo (§ 311 BGB) and from unauthorised action are excluded both against CONIGON and against its vicarious agents, unless intentional or grossly negligent action is involved. This restriction does not apply in the case of slight negligence if essential contractual obligations (i.e. obligations whose proper fulfilment makes the execution of the contract possible in the first place) have been breached. CONIGON is also liable for slight negligence if the damage is covered by its public liability insurance. CONIGON undertakes to maintain the insurance cover in place when the contract is concluded.

e) Insofar as it is not a matter of direct personal injury or damage to property, CONIGON shall only be liable up to the amount of the simple equivalent value of the order value. CONIGON shall not be liable for loss of profit, loss of savings or indirect and/or consequential damages. These limitations of liability do not apply to damages based on intent, gross negligence or the absence of warranted characteristics. CONIGON shall not be liable for the recovery of data unless it must accept that the destruction of the data is attributable to gross negligence or wilful intent and that the customer has taken appropriate, state-of-the-art security measures to ensure that this data can be reconstructed with reasonable effort.

f) The customer shall be liable for ensuring that the content of the artwork and documents supplied does not violate statutory provisions. Similarly, the customer shall be liable for ensuring that such templates are not subject to third-party copyrights. In all cases, the customer shall indemnify CONIGON against third-party claims.

g) In the event that, despite proper instruction in data backup by CONIGON, damage occurs as a result of data loss, data corruption or other circumstances as a result of which data can no longer be used as intended, CONIGON shall only be liable if it or one of its employees can be accused of intent or gross negligence, the customer has ensured that the data can be recovered in a reasonable manner by taking appropriate and state-of-the-art backup measures and by following instructions.

h) Unless otherwise stipulated above, liability is excluded.

14. Cancellation agreement

In case the customer cancels or reduces the scope of the project ordered, the services no longer to be provided shall be invoiced with a cancellation fee of 50% of the fee claims not incurred as a result of the cancellation, as well as a possible minimum quantity surcharge on services already provided.

15. Prohibition of poaching

For the duration of the co-operation between the parties and for a period of one year thereafter, the customer undertakes not to poach any employees from CONIGON or to employ them without CONIGON’s consent. For each case of culpable infringement, the customer undertakes to pay a lump sum to be determined by CONIGON of 80% of the annual gross salary of the respective employee and, in the event of a dispute, a contractual penalty to be reviewed by the competent court.

16. Secrecy, press release

a) The documents, knowledge and experience provided to the other contracting party may only be used for the purposes of this contract and may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to the third party. Third parties shall not include auxiliary persons such as freelancers, subcontractors, etc. called in to fulfil the contractual relationship.

b) In addition, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained during its execution.

c) The confidentiality obligation shall also apply beyond the termination of the contractual relationship.

d) If a contracting party so requests, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other contracting party can assert a legitimate interest in these documents.

e) Press releases, information etc. in which one party refers to the other are only permitted after prior written agreement – also by email.

17. Arbitration

a) In the event of any differences of opinion arising from or in connection with this contractual relationship, the parties shall first endeavour to reach a solution through in-depth discussion between the contact partners.

b) Differences of opinion that cannot be resolved by the parties should be settled by arbitration. If a party refuses to take part in arbitration proceedings, it may take recourse to the ordinary courts if it has notified the other party of this in writing in advance.

c) In order to conduct an arbitration procedure, the parties shall call upon the arbitration board of the Bundesverband Digitale Wirtschaft (BVDW) e.V., Berliner Allee 57 in 40212 Düsseldorf, with the aim of settling the difference of opinion in whole or in part, provisionally or finally, in accordance with its arbitration rules.

d) The dates affected by the conciliation procedure, including the preceding discussion between the contact persons, shall be postponed, taking into account the duration of the conciliation and, if applicable, the duration of the conciliation results to be executed.

18. Miscellaneous

a) The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. The regulation of §354 a HGB remains unaffected by this.

b) A right of retention can only be asserted due to counterclaims arising from the respective contractual relationship.

c) The contracting parties may only offset claims that have been recognised by declaratory judgement or are undisputed.

d) CONIGON may name the customer as a reference customer on its own website or in other media. CONIGON may also publicly reproduce or refer to the services provided for demonstration purposes, unless the customer revokes this consent.

19. Final provisions

a) All amendments and additions to contractual agreements must be recorded in writing for verification purposes. Cancellations must be made in writing. Notifications that must be made in writing may also be made by email.

b) Should individual provisions of the party agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the agreements.

c) The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.

d) The place of jurisdiction for all legal disputes arising from or in connection with this contract is Saarlouis for Conigon GmbH and Metz for Conigon France SAS.