General Terms and Conditions of Delivery and Service

The following General Terms and Conditions (GTC) apply to all contractual relationships and pre-contractual negotiations with our customers (hereinafter also referred to as the client) in connection with deliveries and services of ICS adminservice GmbH (hereinafter referred to as ICS). Conflicting or deviating terms and conditions of the customer shall not apply, even if ICS has not expressly objected to their validity. This also applies if ICS provides a delivery and/or service to the contractual partners or third parties without reservation in knowledge of the general terms and conditions of the contracting parties or third parties.

These General Terms and Conditions shall also apply to future transactions, even if they are not expressly agreed upon again.

1 Offers and conclusion of contract

1. The offers of ICS are subject to change and non-binding. This shall also apply if ICS has provided the Client with catalogues, service descriptions, calculations, calculations or the like prior to the conclusion of the contract, to which ICS reserves the right of ownership and copyright. Acceptance of the offer can be declared either in writing (e.g. by order confirmation) or by delivery or provision of the other services to the customer.

2. All declarations of intent must be made in writing. Agreements entered into between ICS and the Customer for the purpose of executing this Agreement shall also be set forth in writing. The written form is also complied with by fax or e-mail from a person authorised to represent the company.

3. Performance data and characteristics are only binding if they are expressly agreed in writing. Ancillary agreements or oral statements made or made by our employees, employees and employees do not become part of the contract or any contractual obligation to perform.

2 Remuneration

1. Unless otherwise agreed, our prices are net without deductions plus the applicable VAT.

2. Unless otherwise agreed, the prices or daily rates plus travel and ancillary costs incurred apply. A day comprises 8 hours. Expenses for accommodation as well as travel expenses (e.g. rental car, fuel, train, flight, …) are paid by the client as incurred, additional meal expenses in accordance with statutory regulations. Travel times are charged at half an hourly rate. The mileage allowance for cars used is 0.40 euros/km.

3. The service is provided within the usual business hours of ICS Monday to Friday.

4. In the case of monthly recurring services (e.g. preparation of payrolls, services in finance and accounting, system support) or framework conditions, ICS is entitled to adjust prices appropriately if cost reductions or cost increases occur after the conclusion of the contract. ICS will notify this 3 months in advance and provide proof to the customer upon request. The evidence of wage cost changes can be provided on the basis of the (www.destatis.de) nominal wage index for Germany determined and published by the Federal Statistical Office (current base series, currently 2015 = 100). The changes must be taken into account in each case compared to the quarter in which the contract was concluded or in which the last adjustment was made. Adjustments are possible at the earliest 12 months after the conclusion of the contract or after the last adjustment.

5. Invoices are usually issued monthly for monthly recurring services. When carrying out projects, training courses or the like, invoicing takes place with the provision of the entire service or a defined partial service.

3 Payment Terms

1. Unless otherwise stated in the order confirmation/contract, the remuneration for all deliveries and services is due for payment within 14 calendar days from the date of invoice.

2. The Client shall only be entitled to offset and withhold if its counterclaims have been legally established or are undisputed.

3. If the Client is more than 14 days in arrears with payments of a not inconsiderable amount, ICS shall have the right to make all outstanding amounts from this relationship due immediately. In the case of monthly recurring services, there is a delay of a not inconsiderable amount as soon as the customer is in arrears with a total of 2 months’ remuneration.

4 Software Provision and Leasing / Work Results

1. If the subject matter of the contract includes the provision or transfer of software, ICS grants the customer the non-exclusive, non-transferable unlimited right of use – unless otherwise contractually agreed. The same applies to work results in the context of the performance of services.

2. If standard software is the subject of the contractually owed services, the supplied standard software may only be used in accordance with the license terms of the respective manufacturer of the software. Failure to comply with these license terms will result in the revocation of the license, among other things.

3. Unless otherwise agreed herein, ICS shall remain the sole and exclusive owner of all designs, processes, techniques, concepts, improvements, discoveries, ideas and inventions, whether patentable or not, whether used, manufactured or created in connection with the Services (collectively, the “Creations”), and all related patents, copyrights, trade secrets and all other associated intellectual property.

5 Reservation of Title and Rights

1. Items delivered by ICS remain the property of ICS until they have been paid for in full. This applies in particular to the ownership of material deliveries (e.g. data carriers, user manuals, other documentation, etc.) as well as to intellectual property rights (e.g. copyright rights of use to software programs and user manuals).

2. Deliveries or services of ICS may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The Client shall notify ICS immediately in writing if and to the extent that access by third parties is imminent or occurring.

3. Insofar as the Client is entitled to resell the deliveries or services received from ICS in the ordinary course of business, the Client shall hereby assign to ICS all claims in the amount of the final invoice amount (including VAT) of ICS’s claim arising from the resale against its customers or third parties. The customer remains authorized to collect this claim even after the assignment. This does not affect ICS’s ability to collect the debt itself. If the collection is carried out by ICS, the latter may require the customer to notify ICS of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the associated documents and to notify the debtors of the assignment.

6 Deadlines and dates

1. Delivery periods/dates shall only be deemed to be binding if they have been expressly assured in writing by ICS as binding. Compliance with deadlines/deadlines requires that the customer performs activities incumbent on him. If this requirement is not met, deadlines/dates will be extended accordingly.

2. If agreed work appointments cannot be met by the client, they must be cancelled at least three working days in advance. In the event of a short-term cancellation, ICS is entitled to charge the Client for additional costs and expenses.

3. If the non-compliance with deadlines/deadlines is due to force majeure, e.g. war, riot or similar events, e.g. strike, lockout, failure to deliver to the supplier on time, the deadlines/dates shall be extended accordingly.

7 Customer’s Duty to Cooperate

1. The Client shall be obliged to provide ICS with sufficient and professional support for the proper provision of the commissioned services. These include, in particular:

  • Unsolicited timely handover of the necessary data and documents or provision of information and information
  • Granting of access rights to relevant systems as well as provision or creation of the necessary structural, technical and other prerequisites, which are specified to the customer
  • compliance with the provision dates, transmission channels and form of data to be processed agreed in contracts for monthly recurring services (e.g. preparation of payroll accounting, services in finance and accounting, system support).
  • Designation of a contact person with the authorisation to make binding declarations and appointments
  • Decision-making within a reasonable period of time (usually 2 days)
  • Definition of test scenarios (e.g. functional test, checking special cases), timely provision of data and suitable business transactions for test purposes, execution of tests.

If these acts of cooperation are not carried out immediately or professionally by the Client after a reasonable deadline has been set by ICS, ICS shall be entitled to demand the damage incurred, including additional expenses incurred, or to withdraw from the contract.

2. Unless otherwise contractually agreed, ICS is not obliged to check the accuracy of the transmitted data. The Client shall indemnify ICS against any liability claims by third parties insofar as the claims are based on incorrect data transmitted by the Client.

3. In order to avoid damage – and unless otherwise contractually agreed – the customer is required to ensure that his data is backed up daily in accordance with the state of the art. ICS is not liable for the loss of data that could have been avoided by an appropriate data backup.

8 Warranty

1. ICS provides the contractually agreed deliveries and services with the care of a prudent businessman. The statutory provisions on the warranty apply. However, the warranty period is limited to 12 months.

2. Insofar as deliveries or services of ICS are defective, ICS shall, at its discretion, remedy these defects free of charge or repeat the services without defects. If the subsequent performance fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). However, in the case of only minor defects, the customer is not entitled to a right of withdrawal.

3. The customer is obliged to immediately inspect deliveries and services for completeness and obvious defects and to notify ICS of these immediately, at the latest within two weeks of receipt of the delivery or service, in text form to an authorized representative. In the case of non-obvious (hidden) defects, the customer is obliged to report them in text form to a person authorized to represent them after they have been discovered, at the latest within the limitation period. If the customer fails to make the above-mentioned complaints, liability for the defect not complained of is excluded.

4. The customer bears the burden of proof for compliance with and timeliness of the obligation to complain as well as for the existence and time of the discovery of a defect.

5. ICS shall be entitled to demand additional remuneration for expenses incurred by ICS as a result of the assertion of unfounded claims for defects.

9 Statute of limitations

To the extent that a claim for damages by the Client is not subject to a shorter limitation period by operation of law, it shall become time-barred one year from the date on which the Client became aware of the facts giving rise to the claim. If the object of performance is a new item, the limitation period for defects is two years. However, the statutory limitation periods apply in the following cases:

  • for claims for defects, if ICS has fraudulently concealed the defect or assumed a guarantee for the quality;
  • for claims for damages arising from injury to life, limb or health or under the Product Liability Act;
  • for other claims for damages due to an intentional or grossly negligent breach of duty;
  • for claims for damages arising from the breach of other essential contractual obligations.

10 Liability

1. ICS shall only be liable for damages to the extent that the cause of the damage is based on gross negligence or intent as well as on gross negligence or intent on the part of its executives or vicarious agents and vicarious agents. This limitation does not apply to damages that are based on injury to life, limb or health or to those that have arisen as a result of the violation of a main performance obligation or that ICS has expressly assumed a guarantee for the quality.

2. If ICS violates a material contractual obligation through slight negligence, the obligation to pay compensation shall be limited to the foreseeable damage typical for the contract. ICS is not liable for property damage and financial loss that has arisen as a result of a slightly negligent breach of essential contractual obligations, for loss of profit, indirect damage, consequential damage for defects and claims by third parties. In the case of slightly negligent breaches of duty, the liability for the contract as a whole is generally limited to 200,000 euros per damage event in the case of property damage, but only up to a maximum amount of 400,000 euros/year in the case of several damages. In the case of financial losses, liability is limited to 50,000 euros per damage event, but in the case of several damages, only up to a maximum amount of 100,000 euros/year.

3. ICS shall not be liable for defects in the software or for defects caused by defective software that the customer has obtained from third parties, unless ICS has made causal changes to this software for the purposes of liability. Insofar as ICS uses the software or telecommunications networks of third parties to provide its services, ICS shall not be liable if it is unable to provide its services because software or transmission channels are not available or are not available properly. Likewise, ICS is not liable for damages caused by the transmission routes or the technical equipment of third parties.

4. The customer is obliged to notify ICS immediately of any damage within the meaning of the above liability regulations, so that ICS is informed as early as possible and can possibly still reduce damage together with the customer.

5. Insofar as the liability of ICS is excluded or limited, this also applies to the personal liability of ICS’s employees, employees, employees, representatives and vicarious agents.

6. If the contracting parties are prevented from performing their services due to force majeure, the obligations to perform the contract shall be suspended until these circumstances and their consequences have been eliminated.

11 Contract Duration, Termination, Volume Reductions and Project Completion

1. Unless otherwise contractually agreed, the contract begins on the day of conclusion of the contract for monthly recurring services and has a minimum term of 3 years. The contract is automatically extended for one year at a time, unless it is terminated with a notice period of 6 months before the end of the minimum term or extension.

2. Unless otherwise contractually agreed, volume reductions apply outside the usual business framework (e.g. through M&A; mergers, insourcing decisions, etc.) as early termination. In such cases, ICS shall be entitled to demand a severance payment by the end of the term in the amount of the difference between the average billed quantity and the reduced quantity. The average monthly volume billed in the last six months before the reduction is decisive. If the contractual relationship exists for less than 6 months but more than one month at the time of the reduction, the average monthly billed quantity during the term of the contract is decisive. Volume increases in the subsequent period reduce the difference and thus the distance payment.

3. One-off services begin with the conclusion of the contract. The Client shall confirm the deployment times on the respective individual certificates to the ICS within 5 working days by signing them. If there is no response from the client within the 5 working days, the individual references are automatically considered confirmed. The contract shall be deemed to have been terminated and the use of ICS in the project shall be deemed to have been completed when the Client signs the Project Completion Protocol completed by ICS. If the client does not sign the protocol within 20 working days, the contract and the assignment in the project are automatically considered terminated. If the Client cancels one-off services in whole or in part, ICS is entitled to charge a cancellation fee of 30% of the contract value of the entire project that has not yet been invoiced, in addition to the services provided and accrued costs, unless it can prove that minor damage has occurred.

4. Termination for good cause remains unaffected by the preceding paragraphs. Good cause exists in particular if:

  • the Client is in default with due payments in whole or in part despite a reminder;
  • any other material provision of the contract or these GTC is violated even after a written warning;
  • concerns have arisen as to the solvency of the client and neither advance payment is made nor adequate security is provided within a reasonable period of time on request;
  • the execution of an order is significantly delayed or becomes impossible due to reasons for which the Client is responsible.

5. In the event of termination due to the customer’s conduct in breach of contract, the customer shall pay fees for the services in proportion to their processing status and costs incurred, and ICS shall be entitled to demand the return of any goods delivered (e.g. data carriers, user manuals, etc.) on the basis of retention of title and withdrawal, as well as to grant the customer any rights of use to intellectual property (e.g. rights of use to software programs).

12 Amendment Procedure

1. If the Client requests changes to the requirements, ICS will consider this request and inform the Client whether the proposed change is feasible within the scope of the agreed services. ICS will make an offer to implement the changes (change offer). In particular, the amendment offer contains the service description and its effects on the performance period, the dates and the remuneration.

2. Until the amendment offer is accepted, the work will continue on the basis of the previous contractual agreements.

3. The parties may agree that services affected by a proposed amendment shall be interrupted until the end of the examination or, if an offer of modification is submitted, until the expiry of the binding period. The performance periods shall be extended by the number of working days on which the work relating to the proposed modification or its examination was interrupted by mutual agreement or after consultation.

13 References

The Client shall allow ICS to designate the Client as a reference using its logo. This permission is valid until the written revocation of the client.

14 Data protection and confidentiality obligations, archiving

1. The contracting parties undertake to maintain confidentiality and to comply with the statutory data protection regulations.

2. The duty of confidentiality includes all information about the respective contracting party and its associated companies as well as about its (also potential) contractual partners (e.g. subcontractors). The contracting parties are obliged to ensure that third parties do not become aware of trade secrets. Confidential information and trade secrets are, in particular, personal data, company key figures, knowledge of procedures and business methods of the respective contracting party and its companies in technical, commercial and other terms. The content and conditions of offers and contracts are also subject to confidentiality.

3. The obligation applies to all information and facts, regardless of whether they have been expressly marked as confidential or secret, unless they are generally known or the Contracting Party concerned is obliged to disclose them by an official or statutory order or there is an explicit, prior written consent of the respective Contracting Party to disclosure to third parties. The duty of confidentiality continues to exist even after the termination of the contract.

4. If the subject matter of the contract is the processing of personal data, the parties undertake to conclude a data processing agreement in accordance with Art. 28 EU GDPR and, in the case of a third-country transfer, to conclude additional contractual provisions on data protection (e.g. EU standard contractual clauses).

5. After termination of the contract, all data and documents will be returned to the customer or destroyed. It is expressly pointed out that – unless expressly agreed otherwise – compliance with archiving obligations, in particular for payroll accounting as well as services in finance and accounting, is the responsibility of the customer.

15 Applicable law, place of jurisdiction, written form, severability clause

1. The legal relationship between ICS and the Client shall be governed by the law of the Federal Republic of Germany.

2. Insofar as the Client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Halle/Saale shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

3. Out-of-court dispute resolution/information obligations according to §36 Consumer Dispute Resolution Act (VSBG): Our offer and services are aimed exclusively at companies. We are therefore not obliged to participate in dispute resolution proceedings before a consumer arbitration board within the meaning of §2 VSGB.

4. Should individual provisions of these terms and conditions be or become invalid or unenforceable, the validity of the remaining provisions of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by the effective and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.

As of: August 2021