General Terms and Conditions (AGB)

General Terms and Conditions for Software Transactions and IT Services

I. General provisions for all services

The following provisions apply to all software transactions and IT services provided by Sematell GmbH (Saarbrücken) for the customer. The basis of Sematell's services is the respective offer, unless Sematell has declared it to be non-binding and the customer has accepted the offer by placing a corresponding order within the period of validity of the offer.

1. cooperation of the customer

1.1 The Customer must notify Sematell immediately of any change of domicile or registered office as well as any changes in the legal form and liability relationships of its company.

1.2 The Customer will promptly provide Sematell with all information and documents that are necessary for the performance of Sematell's services, in particular about devices, data, programs and program parts that are to interact with Sematell's software. The Customer must provide Sematell with the necessary information about the intended field of application, about business policy and procedural objectives and priorities and about all other requirements within its sphere of responsibility. To the extent necessary, the Customer must provide the consent of third parties. At Sematell's request, the Customer shall provide, free of charge, any personnel required for reasons of accident prevention for services within the Customer's premises.

1.3 If Sematell's performance consists of the delivery and/or installation of software, the Customer shall

2. service changes and extensions (change requests)

3. rights of use to software

3.1 Upon full payment of the agreed remuneration, Sematell grants the Customer the non-exclusive right, unlimited in time, to use the Software within the Federal Republic of Germany for his own purposes by loading, displaying, running, transferring or storing it in whole or in part in his company. The right of use is only granted for the data processing unit(s) specified in the offer, the users specified therein and their number, as well as the scope of reproduction specified therein. The customer is entitled to create and store a backup or archiving copy of the software within the scope of the intended use of the software.

3.2 If the user documentation is provided on a machine-readable data carrier, the provisions of Section 3.1 shall apply accordingly. Printed user documentation is provided to the customer for the purpose of handling the software and may be reproduced for this purpose.
3.3 The customer is entitled to combine the software provided with other computer programs. The retranslation of the software into other code forms (decompilation) is only permitted within the legal framework. The actions specified in this statutory provision may only be transferred to third parties if Sematell is not prepared, after a reasonable period of consideration, to undertake the desired creation of interoperability in return for reasonable remuneration.

3.4 The Customer may edit the Software for the purpose of correcting errors, provided that these actions are necessary for the intended use of the Software within the scope of the Customer's own use and Sematell is not prepared to carry out these actions within a reasonable period of time and on reasonable terms. Under no circumstances does the Customer's own use include the distribution of the software. The Customer must prove the necessity of the actions to be taken to correct errors in the software.

3.5 Identifications, trademarks, proprietary rights or other legal owner notices on delivered data carriers and user documentation may not be removed and must be transferred unchanged to copies of machine-readable data carriers made by the customer.

3.6 The Customer may permanently transfer the right of use granted here to the Software, including the user documentation, to a third party while relinquishing its own right of use, provided that the third party has agreed in writing to the continued application of the Customer's obligations under this contract, in particular with regard to the right of use, also vis-à-vis the Customer - the third party. The Customer must notify Sematell immediately of the transfer and name the third party. In the event of transfer, the Customer must hand over to the third party all copies of the software, including existing backup or archiving copies, or destroy the copies not handed over. The customer's right to use the software shall expire with the transfer. 

3.7 The right to reproduce and distribute, the right to transfer and sublicense to third parties, the right to edit and modify, including the use and reproduction of the respective results and their corresponding distribution are otherwise excluded. 

3.8 The rights to the open source components contained in ReplyOne remain with the respective rights holders. The license conditions specified by the rights holders shall apply. The license texts are included in the delivery of ReplyOne, the corresponding source code of these components can be provided upon request of the customer.

3.9 If additional software (open source or commercial) is required for the services ordered by the Customer from Sematell, the Customer will procure such software and the necessary licenses in its own name and for its own account and make them available to Sematell.

3.10 The above provisions in this Clause 3 shall apply mutatis mutandis to all further developments (upgrades, releases, new versions, etc.) which Sematell creates for the Customer within the scope of the contractual relationship (in particular in the case of software maintenance agreements).

4. remuneration, terms of payment

4.1 The Customer shall pay the agreed remuneration. If no remuneration has been agreed for a service provided by Sematell, the prices, daily or hourly rates (daily rates include 8 hours of work per day) of Sematell valid at the time of conclusion of the contract shall apply in accordance with its price list valid at that time. Unless otherwise agreed, the remuneration shall apply ex Sematell's registered office.

4.2 The remuneration is exclusive of VAT at the respective statutory rate and country-specific duties for deliveries abroad. Travel expenses shall be invoiced in addition to the agreed remuneration. Travel times are considered working hours.

4.3 If an expense-related remuneration has been agreed, the Customer is obliged to make payments on account at Sematell's request. In these cases and in the case of the final invoice, which must take into account any payments on account, the remuneration is payable immediately after the respective invoice is issued without deduction, unless the parties have agreed payment on specific dates.

4.4 If a lump-sum payment has been agreed for services, this shall be paid as follows: 40 % upon conclusion of the contract; 30 % eight weeks after conclusion of the contract or on the agreed date and 30% after acceptance.

4.5 Sematell reserves the right to increase the remuneration for projects for the adaptation or creation of software whose agreed realization period is longer than 12 months with a notice period of three months if no fixed lump sum price has been agreed. The increase may not exceed 5 % of the agreed remuneration within one year of the last request for an increase.

4.6 The initial remuneration for the maintenance services ("Service Level Agreement") is calculated on the basis of the scope of the license ordered and results from the offer and the subsequent contractual agreement between the Customer and Sematell. This remuneration is agreed for at least 24 months after conclusion of the initial maintenance agreement. Sematell is entitled to increase the remuneration for subsequent maintenance services by up to 5% (based on the initial maintenance sum) if this is announced at least 6 months in advance. A further increase may be made by Sematell after a further 24 months by 5% (based on the increased maintenance sum) with corresponding notification.

4.7 All claims of Sematell shall become due immediately if the payment dates and deadlines are not met without cause or if there is a significant deterioration in the financial circumstances of the Customer.

4.8 If a payment by the Customer does not settle all of Sematell's claims due against the Customer, the payment will first be set off against the unenforceable and not legally pending liabilities and finally against the enforceable liabilities, in each case first against the older and then against the more recent.

4.9 The Customer may only set off undisputed or legally established claims against Sematell's claim for remuneration. The Customer may only assert a right of retention in cases of undisputed or legally established claims.

5. warranty

5.1 The limitation period for claims for defects is one year after delivery (for standard software) or after acceptance (for concepts or customization, creation and installation of software).

5.2 A defect exists if the contractual software with documentation does not have the contractually agreed quality or is not suitable for the contractually agreed use. The contractual quality results from the offer or the concept of Sematell. The Customer must notify Sematell of any defects immediately upon discovery, describing the appearance of the defect.

5.3 Sematell is entitled to a reasonable period for subsequent performance. Sematell may, at its discretion, either remedy the defect or provide the service again. The instruction of Sematell to a reasonable work-around of the software defect is a sufficient remedy of the defect. The parties agree that, due to the complexity and scope of software programming, more than two attempts to remedy the defect are generally necessary. Withdrawal is excluded in the event of only an insignificant reduction in the value or suitability of the concept, as well as if the customer is in default of acceptance or is primarily responsible for the defect. If the delivered, adapted or created software is used without complying with the conditions of use, the obligation for subsequent performance shall lapse unless the customer proves that the defect is not attributable to this.

5.4 In the event of an unjustified notice of defect, the Customer shall bear the costs incurred by Sematell if the Customer has culpably failed to recognize the absence of the defect.

6 Term of the contract, termination

6.1 Agreements on the adaptation, creation, installation and provision of software and concepts as well as consulting and training services may only be dissolved in accordance with the statutory provisions.

6.2 A contract for software maintenance or servicing generally begins on the agreed date (start: service period see initial maintenance invoice) and is concluded for a period of at least 12 months. If the terms of individual parts of the contract differ, the service period may be consolidated by mutual agreement. The contract shall be extended by one year in each case if it is not terminated by one of the contracting parties with three months' notice to expiry. The right of termination can also be exercised with regard to a part of the contract for individual software parts, provided this is reasonable for the other contractual partner and the parts are functionally separable. Termination of maintenance for a user license quota is excluded. The right to terminate without notice for good cause remains unaffected by the above termination provision. Important reasons for termination by Sematell are in particular

a) if Sematell, as a result of a failure by a third party to deliver new program versions for which it is not responsible
is not efficient, although Sematell has made every reasonable effort to obtain the new program versions;
b) if the customer has tampered with the software to be maintained or has had it tampered with by third parties;
c) if changes and extensions to the software to be maintained by Sematell initiated by the Customer lead to changes in Sematell's performance, in particular to additional expenses;
d) if the customer refuses to accept a new release; or
e) if the customer is more than two months in arrears with a payment or fails to pay two (not necessarily consecutive) invoices within the agreed period

Notice of termination must be given in writing.

7. liability

7.1 A contractual partner shall only be liable for itself and its vicarious agents, irrespective of the legal grounds, if a material contractual obligation has been culpably breached in a manner that jeopardizes the purpose of the contract or if the damage is attributable to intent or gross negligence. An essential contractual obligation is an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. If the culpable breach of such an essential contractual obligation is not intentional or grossly negligent, liability shall be limited in terms of reason and amount to such contract-typical damages as were reasonably foreseeable at the time the contract was concluded. 

7.2 Sematell shall only be liable for the recovery of data if the Customer has taken reasonable precautions, in particular by making daily backup copies of all data, to ensure that such data can be reconstructed from machine-readable data material with reasonable effort. 

7.3 Insofar as liability is excluded or limited under these terms and conditions, this shall also apply to the personal liability of the bodies, employees, workers, staff, representatives and subcontractors of this party. 

7.4 The limitation of liability contained in these terms and conditions does not apply to claims under the Product Liability Act. 

7.5 The contracting parties shall not be liable for the breach of obligations arising from this contract and the orders agreed under it if the breach is due to force majeure, in particular war, civil war, natural disasters, acts of terrorism, strike (not lockout), embargo. Strikes shall not be deemed force majeure within the meaning of this section if the strike was caused by unlawful acts of the respective contracting party. If one of the parties is prevented from fulfilling its contractual obligations due to force majeure, this shall not be deemed a breach of contract and the deadlines stipulated in the contract or on the basis of the contract shall be extended appropriately in accordance with the duration of the impediment. Immediately after the occurrence of the force majeure event, the affected party shall inform the other party in writing of the nature of the event, the time and date of its occurrence and the likely impact of the result on its ability to perform its contractual obligations.

8 Confidentiality, data protection

8.1 Unless otherwise agreed, each contracting party shall treat the information provided to it by the other contracting party (together with documents, samples, etc.) as trade secrets entrusted to it, use it only within the scope of the purpose of the contract and not make it accessible to third parties. This obligation does not apply if the information 

a) were accessible to the public before the reception, or 
b) became accessible to the public after receipt without the recipient of the information being responsible for this, or 
c) has been made available to the recipient of the information at any time by a third party authorized to do so to the best knowledge of the recipient of the information; or 
d) were known to the recipient of the information prior to receipt or are independently developed by the recipient; or 
e) are made available to a third party by Sematell for the performance of its service and Sematell makes the third party confidentiality in accordance with this confidentiality agreement, 
f) are entrusted to a consultant of a contractual partner who is bound by professional secrecy (tax consultant, accountant, lawyer) to provide the contractual partner with appropriate advice, or 
g) must be disclosed on the basis of a final or legally binding official or judicial decision or a law. If such a reason becomes known, the recipient of the information must inform the provider of the information immediately. 

8.2 The contracting parties shall exercise the same care in keeping the information confidential as they do with regard to their own trade secrets. They shall vouch for each other that their employees - insofar as they can obtain knowledge of information - are obligated accordingly. 

8.3 All rights to the information shall remain with the informing contractual partner. Irrespective of the term of the agreement, each contracting party shall use the information provided to it only in accordance with this agreement for a further three years after receipt of the information. 

8.4 The contracting parties shall comply with the provisions of data protection law. Each contracting party shall oblige the persons working on its side to obtain any necessary instructions from the controller in accordance with Art. 29 GDPR.

8.5 Insofar as Sematell processes personal data of the Customer on its behalf and according to its instructions or Sematell accesses the Customer's IT systems during the provision of services and access to personal data cannot be excluded, the necessary consents will be obtained in the form provided for this purpose in compliance with the provisions of Art. 28, 29 GDPR.

8.6 Sematell may, at its own discretion, provide contractual services itself or through subcontractors. Insofar as a subcontractor obtains access to personal data of the Customer or such access cannot be excluded, Sematell will conclude (i) for subcontractors within the European Union (EU) or the European Economic Area (EEA) an agreement on commissioned data processing that meets the legal requirements and (ii) for subcontractors in third countries an agreement in accordance with the provisions of the GDPR for the transfer of personal data to processors in third countries in accordance with the GDPR.

II Special provisions for certain services

The following provisions apply to the respective services provided by Sematell within the agreed scope:

1. concept development

1.1 Sematell shall prepare a concept in the form of written documentation on the basis of the offer. The objective of the concept is to create a data processing basis for the Customer for individual software to be created and/or software to be adapted, in particular software to be parameterized. 

1.2 In the Concept Sematell analyzes, evaluates and documents the Customer's requirements. It describes the functions and the tasks that the software has to fulfill in order to achieve the customer's objectives, as well as the workflows, the interfaces and the interaction of the functions and the information required and to be generated by them. The concept is created by Sematell in close cooperation with the customer. 

1.3 The content of the concept is only a guarantee of quality if this has been expressly declared in writing. Performance dates or performance periods are non-binding unless Sematell has expressly agreed to them as binding. 

1.4 If the work result essentially corresponds to the agreements, the Customer must declare acceptance in writing without delay, at the latest within four weeks of receipt of the concept. If there are significant deviations from the contractually agreed requirements, Sematell must remedy these deviations within a reasonable period of time. Sematell will then make the work result available to the Customer for renewed acceptance. The Customer's acceptance may also take place subject to the reservation of his rights due to a defect. 

1.5 If the Customer does not declare acceptance without giving reasons, Sematell may set a reasonable deadline for the submission of the declaration. The work result is deemed to have been accepted upon expiry of the deadline if the Customer does not specify the reasons for refusal of acceptance in writing within this deadline. 

1.6 Sematell grants the Customer the non-exclusive and non-transferable right to use the concept developed for the Customer's business operations as a basis for the creation or adaptation of its software. Sematell's right to create concepts with comparable tasks for third parties remains unaffected.

2. consulting and training services

2.1 Sematell shall advise and/or train the Customer in accordance with the offer. 

2.2 If the Services have not been performed or have not been performed in accordance with the contract, Sematell shall be obliged to perform the Services in accordance with the contract within a reasonable period of time if the Customer has notified Sematell of this in writing.

3. provision of standard software

3.1 Sematell provides the Customer with standard software (hereinafter "Software") in the object program with user documentation. The scope of services and functions of the software provided is determined by Sematell's product description valid at the time of conclusion of the contract. 

3.2 The Software is executable on the hardware and software environment specified by Sematell in the product description or in the contract. The conditions of use are specified in the product description or in the offer. Additional agreements, e.g. on the interaction with other programs or networking options, depend on the customer-specific situation and may have to be agreed separately. 

3.3 The technical data and descriptions in the product description are not a guarantee of quality, unless Sematell has expressly designated the description as a guarantee of quality. 

3.4 The customer shall receive a copy of the software on the machine-readable data carrier specified in the contract and a copy of the user documentation. The user documentation shall be provided to the customer in printed form or on a machine-readable data carrier, if necessary on the same carrier on which the software copy is recorded. At the customer's request, delivery shall be made on a machine-readable data carrier provided by the customer at his own expense. 

3.5 Additional services, such as installation of the software on the Customer's hardware, instruction and training are to be agreed and remunerated separately if these services are to be provided by Sematell. The maintenance of the software, customer-specific adaptations of the software and the maintenance of customer-specific adaptations are only part of Sematell's services if they have been offered in writing by Sematell and ordered by the Customer.

4. maintenance of standard software

4.1 Sematell shall perform maintenance services on the standard software specified in the offer, including the relevant user documentation, if applicable. The maintenance services on the software serve to maintain the functionality of the software, but do not include any guarantee that the software will always operate without malfunction or interruption. Sematell offers various service levels for the provision of maintenance services for its standard software. The type, scope and content of the maintenance services are determined by the agreed service level. Insofar as maintenance services are owed by Sematell according to the respective offer without a service level being specified, the maintenance services will be provided by Sematell in accordance with the Service Level Agreement "Standard" as amended from time to time. The applicable Service Level Agreement will be provided to the Customer upon request, unless it is already enclosed with the offer. 

4.2 The customer may change from the currently agreed service level to another service level with a higher service profile by notifying Sematell at least 60 days before the end of the respective contract term. The new service level will then apply for the first time at the beginning of the new contract year. Remuneration is then determined according to the applicable Sematell price list corresponding to the respective service level. 

4.3 The provision of new program versions (hereinafter "version") with performance and functional enhancements through reprogramming of essential parts of the software - including the possibility of using new technologies, if applicable - may be the subject of a separate software licensing agreement in return for payment.

5. creation, customization and installation of software

5.1 The nature and scope of the services to be provided by Sematell for the creation, customization and installation of software are set forth either in Sematell's offer or in the concept that Sematell has created for the Customer on the basis of these Terms and Conditions. 

5.2 If its services are functional, Sematell will make the work result available to the Customer in the agreed form and will notify the Customer in writing of the functionality. Acceptance of services provided by Sematell requires a successful functional test, which must begin within two weeks of receipt of the notification and be carried out within a further two weeks. If the work result is essentially in accordance with the contract, the Customer must declare acceptance in writing. If the customer does not declare acceptance without giving reasons, Sematell may set a reasonable deadline for the submission of the declaration. The work result shall be deemed to have been accepted upon expiry of the deadline if the Customer does not specify the reasons for refusal of acceptance in writing within this deadline. If the Customer sufficiently justifies the non-acceptance, Sematell is obliged to rectify the work result in order to obtain acceptance. If Sematell does not provide a work result suitable for acceptance even after two subsequent improvements, the Customer may terminate the contract in accordance with Section I 6.2. 

5.3 The contracting parties may agree in writing on acceptance criteria which must be guaranteed within the scope of the functional test and without compliance with which the functional test shall be deemed not to be in accordance with the contract. 

5.4 Sematell shall remedy material deviations from the contractually agreed requirements within a reasonable period of time. A material deviation from the contractual requirements is deemed to exist if, due to a disruption in parts of the program sequences, not insignificant disruptions occur so that parts of the software cannot be used or if a sustained disruption of the software sequence occurs with the resulting inability of the system to function or disruption of parts of the system, which leads to disruption of all work processes at the Customer. Sematell will then make the work result available to the Customer for renewed acceptance. 

5.5 The customer's acceptance can also take place subject to the reservation of his rights due to a defect. In this case, the provision of the preceding paragraph shall apply equally to significant deviations in respect of which the customer has reserved its rights. 

5.6 If different points in time have been agreed for the provision of functional capability for services, the functional test shall be limited to the respective partial service. Upon acceptance of the last partial service, a functional test, in which all partial services are included, shall determine the contractual interaction of all services. 

5.7 Each contracting party shall name a contact person responsible for arranging meetings and for providing and receiving information relating to the project. Immediately after conclusion of the contract, the customer shall name in writing the persons whose technical or legal declarations are binding for the customer. Both contracting parties shall each appoint a project manager who shall be responsible for clarifying all technical issues in connection with the provision of contractual services. In the event of a change of project manager, the other contracting party must be informed of this in writing.

III Final provisions

1. the underlying offer of Sematell including any supplements is an integral part of this contract. 

2. the place of performance for Sematell's services is Sematell's registered office. The place of jurisdiction for all disputes arising from the contract is the court responsible for Sematell's registered office. 

3. collateral agreements, amendments and supplements to the contract must be made in writing. This written form requirement can only be waived by a written agreement. 

4 The contractual relationship between the contracting parties shall be governed by the law of the Federal Republic of Germany. The application of the Vienna UNCITRAL Convention on Contracts for the International Sale of Goods of April 11, 1980 and the application of the German conflict of laws are excluded. 

5. if the present contract contains a loophole or a provision is or becomes invalid in whole or in part, the remainder of the contract shall remain valid. In place of the missing or invalid provision, a provision shall be deemed to have been agreed which comes closest to the economic purpose originally intended by the contracting parties for the missing or invalid provision. However, the contract shall be invalid in its entirety if adherence to it would constitute an unreasonable hardship for one of the contracting parties, even taking into account the intended amendment. 

6 Sematell is entitled to transfer its rights and obligations under this contract in whole or in part to its group parent company or its affiliated group companies (within the meaning of § 15 AktG) or to assign rights under this contract to them. The Customer may only transfer its rights and obligations under this Agreement in whole or in part with the written consent of Sematell. 

(7) The Customer is advised that personal data disclosed in the course of the contractual and business relationship will be stored and processed by Sematell in accordance with the Data Protection Act, insofar as this is expedient for the performance of this contract. 

8. the customer agrees that Sematell may name him as a reference customer for the solution created within the scope of this project. This also includes permission to use the Customer's name and the application created for marketing purposes. In addition, Internet and Intranet solutions of the Customer created or supported by Sematell contain a reference to the fact that the solution was realized with the help of Sematell products and services (button "powered by Sematell"; link to the Sematell homepage "www.Sematell.com").

Sematell GmbH_AGB-Software_2021-10-27