§ 1 General Terms and Conditions

All contracts for deliveries and services concluded by 365 business development GmbH (hereinafter "we / us") with entrepreneurs, legal entities under public law or special funds under public law (hereinafter "customers") are subject to the following General Terms and Conditions (GTC).

Deviating, supplementary or amending agreements shall only apply to the extent that we have expressly agreed to them in writing. Conflicting terms and conditions of the customer shall not become part of the contract even without express objection.

The content of the contract is otherwise governed by the written agreements.

"Goods" within the meaning of this contract means all objects to be provided under the contract, including software, even where provided in non-physical form, e.g. electronically.

References to legal requirements, annexes or other documents refer, unless expressly stated otherwise, to the version in force at any given time. References to the contract include its annexes.

§ 2 Contracting Party

The contract is concluded with

§ 3 Formation of Contract

Our offers are generally non-binding and constitute a non-binding invitation to the customer to place a binding order for specific goods or services. Such a binding order by the customer shall only be deemed accepted if we confirm it in writing or have carried out the delivery or service.

We are entitled to fulfil our performance obligations by engaging suitable subcontractors.

§ 4 Provisions Governing the Purchase of Standard Software

Unless otherwise agreed in writing, the software subject to the contract is exclusively standard software that has not been developed or produced individually for the customer's needs. The customer is aware that it is technically impossible to develop standard software free from errors for all application conditions.

Where we are obliged to hand over the object code, this shall be done on a data carrier or by providing access to a download link.

Under no circumstances shall there be any claim to the release or disclosure of the source code.

Where we are obliged to install software, the customer shall ensure that the IT system environment requirements communicated to them are met prior to installation.

During any test operations and during installation, the customer shall ensure the presence of a reasonable number of competent and trained staff and shall, if necessary, suspend other work on the IT system. The customer shall back up their data before each installation.

§ 5 Provisions for the Development of Individual Software

The following provisions apply to the development of individual software and the making of individual extensions or individual adaptations of software developed or delivered by us:

If the customer intends to purchase certain (to be specified) standard software from us and have it adapted to the needs of their business, we shall deliver both the standard software and the adapted software to the customer, and shall, upon request, introduce the customer's employees to the software for a fee and conduct training sessions if necessary.

§ 6 Documentation

For standard software, the customer shall receive, depending on the manufacturer, an online help system or user manual as program documentation and working aid.

For other software including customer-specific programs, the customer shall receive an installation guide and - at our discretion - an online help system or program description.

§ 7 Licence Rights

Where software is provided solely for use, we remain the sole owner or rights holder.

For standard software, we grant the customer, in case of doubt, a simple (non-exclusive), unlimited, irrevocable and non-transferable right to use the software on their IT system to the agreed extent.

Where delivery of third-party software forms part of the subject matter of the contract, the terms of use of that third party shall apply; in this case we merely facilitate the licence agreement, which is concluded directly between the manufacturer and the customer. These terms of use shall be made available to the customer upon request - if requested, also prior to conclusion of the contract.

Unless otherwise agreed in writing, the subject matter of the contract does not include a network licence (multi-user licence). In the case of a network licence, the right of use applies only to the individual workstations of the contractually specified local network agreed in writing.

In the event of a change of hardware, the software must be completely deleted from the hardware used previously. Simultaneous storage, retention or use on more than one hardware unit is not permitted.

In all cases, the customer is obliged to take appropriate measures to prevent any unauthorised use by third parties, whereby branches, companies affiliated with the customer, shareholders or spatially or organisationally separate facilities of the same entity shall also be regarded as "third parties".

With regard to the development of individual software and the making of individual extensions or individual adaptations, the customer shall, in case of doubt, receive a simple (non-exclusive), unlimited and non-transferable right to use these for their own internal business purposes. This right includes further work results agreed under the contract (such as interim results, training materials and aids).

Where third-party software products are modified by us, the respective licence terms shall take precedence for the granting of rights, supplemented by the provisions of this clause.

Where open-source software is delivered together with the IT system, all rights of the customer in respect of that software shall be governed by the respective provisions of the rights holder or distributor. We shall notify the customer prior to delivery of the relevant systems of the inclusion of software subject to the GNU Public Licence (GPL) of any version or other so-called copyleft licences.

Unless otherwise agreed in writing or mandatorily required by law, the customer as licensee shall not be entitled to modify, adapt, copy or reproduce the software or text materials provided (source codes, documentation), either themselves or through third parties. Existing copyright notices or registration marks in the software must not be removed or altered.

The resale, rental for purposes other than commercial purposes, or lending of software, as well as any provision for independent use, is permissible within the limits of the law and only under the following additional, cumulative conditions:

• Any original data carriers are handed over to the acquirer or user,
• The name and address of the acquirer or user are notified to us by the customer in writing,
• The acquirer has agreed to our general terms of delivery and the terms of use of third-party manufacturers whose standard software is included in the software, and
• The customer has deleted or destroyed all copies or components of the software remaining in their possession from their system and all external data carriers, including backup copies, such that no possibility of use of the software or its components remains and this can be demonstrated to us upon request.

The above licence terms apply to every form of provision for use, whether known or unknown, including online distribution.

§ 8 Prices, Remuneration, Payment Terms

All prices are in EUR ex works, plus shipping, insurance and packaging costs and VAT applicable at the time of delivery.

Unless the contract provides otherwise, invoices are due for payment depending on the type of underlying contract as follows:

• Subscription contracts - 14 days, without deduction
• Service contracts - 14 days, without deduction
• Other contracts - Immediately, without deduction

Unless otherwise agreed, subscription contracts shall be invoiced in advance in accordance with the defined billing period. Any billing-relevant changes during the respective billing period shall be offset against the subsequent or final invoice.

Unless otherwise agreed, the payment date for deliveries of software and hardware shall be determined by the progress of delivery; software adaptations and other services shall be remunerated on a time-and-materials basis.

If no payment date has been agreed, the occurrence of default shall be governed by the statutory provisions.

The customer shall be in default, without any further declaration, 20 days after performance of the service and receipt of an invoice or equivalent payment statement.

In case of default, default interest shall be charged at a rate of 8% above the base interest rate (§ 247 BGB). The assertion of further damages or a higher interest rate on another legal basis is not excluded. For bank transfers, the timeliness of payments shall be determined by the date on which the amount is available to us.

We are entitled to apply payments to the oldest outstanding invoice, even if the customer has specified a different allocation.

§ 9 Retention of Title

We retain title to all goods delivered by us until all payments from the entire business relationship have been received.

Where a retention of title already exists in favour of the manufacturer or supplier of the delivered item, we acquire, in place of ownership, a vested right to transfer of ownership.

In the event of attachment or other third-party interference, the customer must notify us immediately in writing.

§ 10 Limitation of Liability and Contributory Negligence

For damages other than those arising from injury to life, limb or health, we shall only be liable to the extent that such damages are based on intentional or grossly negligent conduct, or on culpable breach of a material contractual obligation by us or our vicarious agents. A material contractual obligation is one whose fulfilment is a prerequisite for the proper performance of the contract and on whose compliance the customer may regularly rely. We shall only be liable for foreseeable damages that typically arise in such circumstances.

The foregoing provisions apply to all claims for damages (including damages alongside performance and damages in lieu of performance), regardless of the legal basis, in particular also in respect of defects, breach of obligations arising from the contractual relationship, or tort. They also apply to claims for reimbursement of wasted expenditure. Any further liability for damages is excluded.

The foregoing provisions do not reverse the burden of proof to the detriment of the customer.

We shall only be liable for loss of data in accordance with the foregoing paragraphs if such loss could not have been prevented by appropriate data backup measures on the part of the customer. Insufficient data backup shall in particular be the case where the customer has failed to take appropriate measures, in line with the state of the art, to protect against internal disruptions and external influences that could compromise individual data or an entire data set.

Liability for interruption, disruption or other damage-causing events attributable to telecommunications services provided by us or by third parties for whom we are responsible shall be limited to the amount of any right of recourse available to us against the relevant telecommunications service provider. We shall not be liable for the operability of communication systems to the servers subject to the contract, for power outages or for server failures outside our sphere of influence.

We shall not be responsible for material defects in deliveries obtained from third parties and passed on to the customer without modification; liability for intent and negligence shall remain unaffected.

Claims arising from any guarantee granted by us regarding the characteristics of the purchased item and from the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.

The limitation period for non-material breaches of contract is limited to two years.

Liability for software provided free of charge is excluded.

No liability is accepted for the content of the customer's data backups.

In the event of warranty or liability claims being asserted, any contributory negligence on the part of the customer shall be taken into appropriate account, in particular in the case of insufficient error reports or inadequate data backup.

§ 11 Material and Legal Defects

The customer must inspect our services without undue delay after delivery or performance, to the extent that this is practicable in the ordinary course of business, and must give notice of any defect without undue delay.

If the customer fails to give notice, the service shall be deemed approved, unless the defect was not identifiable during the inspection. If such a defect comes to light later, notice must be given without undue delay after discovery; otherwise the service shall also be deemed approved in respect of that defect. This provision shall not apply where the defect was fraudulently concealed.

To preserve the customer's rights, it is sufficient to dispatch the notice. The notice must be accompanied by a qualified description of the defect indicating when and in what context the defect occurs, where possible including the error messages displayed.

Warranty for services shall lapse if the customer or third parties make changes to the software or configuration parameters without our consent. This shall not apply if the customer proves that the defect is not attributable to the changes and that the changes did not make it more difficult to identify and remedy the defect.

In the case of legal defects for which we are responsible, we shall be entitled, at our choice, to eliminate by appropriate measures the third-party rights or their enforcement affecting the contractual use of the subject matter, or to modify or replace the subject matter in a way that does not infringe third-party rights, provided and to the extent that the agreed functionality of the subject matter is not materially impaired as a result. If this is not possible on economically reasonable terms or in a reasonable manner, the customer shall be entitled to withdraw from the contract.

The customer shall promptly notify us of any assertion of rights by third parties and shall grant us and any third-party manufacturer all powers of attorney and authorities required to defend the subject matter against the asserted third-party rights. If we are responsible for the legal defect, we shall reimburse the customer for the necessary costs of legal enforcement.

In the case of material defects, we shall provide warranty at our choice by way of subsequent performance in the form of rectification or replacement delivery.

We are entitled to remedy defects by means of software changes (including updates via releases, updates, service packs, hotfixes, etc.) to the extent that this does not more than insignificantly alter the contractual service.

Until the defect is remedied, we are entitled to provide an operational interim solution.

We are entitled to carry out defect analysis and correction on the customer's systems via remote data transmission.

For all rectifications and replacement deliveries that appear necessary to us, the customer shall, following coordination with us, allow adequate time and reasonable opportunity; otherwise we shall be relieved of liability for the resulting consequences.

Rectification shall be deemed to have failed after the third unsuccessful attempt, unless the nature of the item, the defect or other circumstances indicate otherwise.

Withdrawal shall be excluded where the reduction in the value or utility of our service is only insignificant; likewise where the customer is in default of acceptance or bears material responsibility for the defect.

If the customer wishes to claim damages in lieu of performance, they must first set us a period of four weeks with notice that they will refuse performance after expiry of the period.

In the event of withdrawal, the customer must provide reasonable compensation for benefits derived. For the purposes of calculation, the useful life of the software is deemed to be 4 years.

Warranty claims for services shall become time-barred after one year from the date of delivery, performance or, where applicable, acceptance by the customer, unless fraudulent conduct is involved or a guarantee as to quality has been given or a procurement obligation has been assumed.

§ 12 Customer Cooperation

The successful performance of the agreed services requires the cooperation of the customer. In particular, the customer must provide information to the extent required, render their own performance in good time and make the necessary decisions promptly. Obligations to cooperate are therefore primary obligations and material basis of the contract.

Each party shall designate to the other a contact person who is responsible for the contractual execution of the service relationship between the parties and is authorised to make relevant declarations. Contact persons must be professionally qualified and authorised to answer questions arising in connection with the performance of individual contracts and must have the necessary commercial decision-making authority.

The contracting parties assume that the IT systems subject to the contract will be operated solely by employees who have received appropriate training for their respective activities.

Where we carry out work on the customer's premises, this shall be done under the customer's responsibility and supervision.

The customer is obliged to report defects identified in the software in accordance with § 11. For any rectification, the customer must provide us with the information necessary for fault diagnosis and correction and, in the case of remote rectification, make available a trained and competent employee to assist with the rectification.

The customer shall, without undue delay after each significant change to the IT system, verify that the functionality of their data backup routines (completeness and recoverability) is still intact and shall record the result in writing.

If the customer fails to fulfil their cooperation obligations fully, on time or in any other manner correctly, our performance obligations shall be suspended until such cooperation obligations are fulfilled.

If the customer asserts a warranty claim and it turns out that no right to subsequent performance exists (e.g. user error, improper handling of goods, absence of a defect), the customer shall reimburse us for all costs incurred in connection with the inspection and subsequent performance, unless the customer is not responsible for having engaged us.

§ 13 Acceptance for Works Contract Services

After the installation of goods, in particular software, and their testing, we shall notify the customer in writing of operability and request the customer to carry out acceptance.

The customer may then test the operability of the goods. In the event that the goods are ready for acceptance, the customer shall declare acceptance without undue delay, at the latest within one week, in writing.

If no acceptance is given within this period, acceptance shall nonetheless be deemed to have taken place if the customer does not notify us of any significant defects preventing acceptance within that period. The customer's commissioning of the software or payment of the fee without written objection shall be equivalent to acceptance.

Acceptance cannot be refused on the grounds that minor defects exist.

At our request, partial acceptances shall be carried out for separable parts of the service that can be used independently, provided that the parts to be accepted are capable of separate testing. Once all parts of the service have been accepted, the last partial acceptance shall also constitute final acceptance.

§ 14 Subject Matter and Service Obligations for Service Agreements

We provide our services exclusively in the IT sector and, in so far as they relate to software, limited to our own software and - to be specified in more detail - standard software from third parties (in particular Microsoft Dynamics 365 Business Central); any information provided outside this scope or outside an existing consultancy agreement constitutes non-binding assessments and recommendations based thereon.

Where the subject matter of the contract includes introductory or support services in the context of training for IT systems delivered or recommended by us, we shall impart to the customer or third parties named by them all the knowledge and information needed to operate these IT systems, which are to be defined in advance in a separate system specification.

Where the subject matter of the contract includes advisory and support services (e.g. in the context of a helpdesk), we shall, through trained staff, make our specific know-how available in relation to a specific software product or IT system deployed by the customer in the context of a brief consultation (by telephone, chat, at our choice). The provision of a helpdesk does not replace user training or consulting the manual. Enquiries to the helpdesk may, in principle, only be placed by the agreed contact persons at the customer, unless there is an emergency.

Project management tasks shall be provided upon request under special terms.

Where the subject matter of the contract includes maintenance services and updates, the scope of the IT systems shall be determined by an inventory taken by us prior to conclusion of the contract. Maintenance comprises:

• Software maintenance in the version of the program contracted, meaning the care and preservation of the original functional capability and safe operability of the subject matter;
• Verification of the essential original functionalities of the programs;
• Distribution and installation of program updates (patches, releases, updates) and the care and preservation of their functional capability;
• Servicing and repair of the software subject to the contract (in particular through fixes or updates);
• Elimination of reproducible program errors.

The following are excluded from maintenance:

• Development, delivery and installation of program versions that represent, to a large extent or essentially, new programs or new products, or material further developments, including upgrades and updates;
• Programming work, in particular changes to source code and object code;
• Damage caused by intentional or wilful destruction by the customer or their legal representatives, employees, vicarious agents, other third parties, or by force majeure;
• Computer programs altered by the customer's own programming work;
• Restoring operational readiness due to the customer's change of location;
• Remedying the effects of operating errors or improper use.

Where the subject matter of the contract includes cloud services, we shall provide and manage cloud-based software and storage space for the customer for remote use on our servers or servers of selected third-party providers, or shall provide software-based functionalities billed according to usage volume ("Software as a Service"). Upon termination of the contractual relationship, we shall, upon request by the customer, make available the data stored by the customer. If no such request is made, we shall delete the customer's data stored with us 14 days after termination of the contract.

We are generally free in our choice of systems, storage location, storage media and associated software. If the technical or legal requirements change, the change request procedure shall be carried out.

§ 15 Change Request Procedure

The change request procedure applies to any change in the contract content, in particular the services, as well as in all other cases where the application of the change request procedure is contractually prescribed. The procedure is initiated by one party submitting a change request. Each party shall process the other party's change requests without undue delay. The procedure ends upon agreement of the parties with the conclusion of an amendment agreement.

No party is obliged to provide services in accordance with a change request before a corresponding amendment agreement has been concluded. If such services are nonetheless provided, the performing party shall bear the costs thereby incurred. Each party shall bear the costs incurred by them in connection with a change request procedure.

§ 16 Data Protection and Confidentiality

To the extent that we collect, process or use personal data in the course of providing the services, this shall be done exclusively on behalf of and in accordance with the individual instructions of the customer; details are governed by the respective data processing agreement pursuant to Art. 28(3) GDPR, which is to be concluded separately.

We shall only use employees to provide the services who, prior to commencing their respective activities, have been familiarised with the statutory provisions on data protection and the specific data protection requirements of this contract by appropriate measures, and who have been comprehensively obligated in writing to maintain confidentiality, including compliance with data secrecy and the protection of the customer's trade and business secrets.

Where we engage subcontractors for services that involve the collection, processing or use of personal data, we shall obtain the customer's prior written consent and impose the same data protection obligations on the subcontractors as those set out in the contract between the customer (as the controller) and us as the processor.

"Confidential information" means the contract and all other documents, data and information of one party that comes to the knowledge of the other party in connection with the preparation, negotiation, conclusion, performance or settlement of the contract, unless such information is generally known, has been released in writing by the other party as non-confidential, was already possessed at the time of disclosure without any obligation of confidentiality, or was lawfully received from third parties without any obligation of confidentiality. The recipient must endeavour to protect such information from unauthorised use or disclosure, applying at least the standard of care of a prudent merchant.

Notwithstanding the foregoing, each party is entitled to disclose confidential information with the consent of the other party. Without consent, disclosure is only permissible where required by a supervisory authority or other competent body, mandated by mandatory law, or made to employees, subcontractors or advisors of a party who are professionally bound to secrecy.

Upon termination of the contract, each party shall return all confidential information in their possession to the other party to the extent it is embodied; other confidential information shall be deleted.

These obligations shall continue after the termination of the contract.

§ 17 Term, Termination, Special Termination Rights

Subscription contracts are concluded for a subscription period of one month or one year, as chosen. If no termination is given at the end of the subscription term, the subscription contract automatically renews for the same subscription period. The subscription period is chosen at the start of the subscription and can be changed in writing at the end of each subscription term.

Other long-term contracts are concluded for a minimum period of 12 months. If no notice of termination is given with three months' notice before the end of the contract term, the contract automatically renews for a further year.

If we send the customer amended contract terms at the latest one month before the expiry of the notice period, or direct the customer to amended contract terms published on the internet, the contract shall renew with the inclusion of these new terms. If the customer objects, the sending of the amended terms shall be deemed a termination of the contract. Objections must be made in writing.

If, in the case of works contract services, the customer terminates the contract prior to completion of the works without good cause, we may, at our choice, demand the agreed fee or instead demand our expenses and lost profit in addition to the fee for services already rendered, plus a lump sum of 50% of the fee due for services not yet rendered at the time of termination.

The right of each contracting party to terminate the contractual relationship for good cause with immediate effect remains unaffected. Good cause shall exist for us in particular where:

• the customer is in default of payment for two consecutive due dates, or the customer has, over a period extending beyond two due dates, fallen into arrears with payment of an amount equal to the fee for two months;
• the customer is insolvent, insolvency proceedings have been opened over their assets, or the application for the opening of insolvency proceedings has been rejected for lack of assets;
• the customer breaches material contractual obligations, in particular the contractual duty to comply with the law when using our contractual services, and fails to remedy such breach without undue delay even after a warning or notification of the blocking of content by us.

All terminations must be made in writing.

§ 18 Miscellaneous

The customer is obliged to notify us in writing of any changes to their company details (trade name, legal form, address, e-mail address for reporting, bank account details).

Contract amendments shall be recorded in writing by the parties. There are no oral side agreements that deviate from or supplement the content of the written contract. Amendments and supplements to the contract shall be made by the management or persons specially authorised by the customer. Oral agreements or declarations by other persons are only valid if confirmed in writing by the customer's management.

The customer may only assign rights under this contract with our written consent.

The place of performance for contracts with merchants shall be our company's registered office for both parties.

These terms and conditions and the entire legal relationship between the parties are subject to the applicable substantive law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

The language of the contract is German.

Where the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be our company's registered office, provided we are entitled to bring proceedings against the customer before another statutory court.

The invalidity of any provisions of these terms and conditions shall not affect the validity of the remaining provisions. The parties are obliged to replace any invalid provision with a valid provision that comes as close as possible to the meaning of the invalid provision.