General Terms and Conditions of DC Services GmbH
Status: 23.02.2021
1. Scope of Application
1.1 These General Terms and Conditions (hereinafter „GTC“) of DC SERVICES GmbH (hereinafter „DC SERVICES“) apply to all services (hereinafter „Services“) provided by DC SERVICES and its affiliated companies to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), as well as to all services from other providers (hereinafter „Services of Other Providers“) available through DC SERVICES, and are part of the respective contract between DC SERVICES and the customer (hereinafter „Customer“).
1.2 General terms and conditions of the Customer that deviate from these GTC are only valid if they have been expressly confirmed in writing by DC SERVICES. Any conflicting general terms and conditions of the Customer are not accepted, and their inclusion is hereby rejected.
1.3 Deviations from or supplements to these GTC require written form. Oral side agreements at the time of conclusion of the contract are only valid if confirmed in writing by DC SERVICES. This also applies to changes to the contract after its conclusion.
1.4 In order documents such as service descriptions, orders, and/or supplementary conditions, specific data relating to business transactions may be included, which apply to certain types of services (e.g., capacities or testing services). In case of contradictions between these GTC and such order documents, the latter shall take precedence over these GTC for the specific business transaction.
2. Conclusion of Contract
2.1 The offers of DC SERVICES are non-binding unless otherwise expressly agreed in writing and remain valid for a period of one month from the date of issue. However, DC SERVICES reserves the right to cancel or modify offers at any time.
2.2 A contract is concluded with the acceptance of an offer made by DC SERVICES by the Customer (hereinafter referred to as „Parties“) or by counter-signing a Customer order by DC SERVICES.
2.3 Price and service details, as well as other declarations or assurances, are only binding for DC SERVICES if they are given or confirmed in text form.
2.4 Offers may be revoked by DC SERVICES at any time until the Customer’s acceptance, unless otherwise agreed in writing.
2.5 Changes or additions to the offer or these GTC by the Customer shall be considered a new offer from the Customer.
3. Services of DC SERVICES
3.1 The scope of the agreed services is, in case of doubt, derived from the offer of DC SERVICES underlying the performance of the service.
3.2 DC SERVICES provides services to the Customer as described in the respective offer. Unless otherwise expressly agreed, the services are a provision of services; no specific result is owed.
3.3 Unless the respective offer states otherwise, the project and success responsibility remains with the Customer. However, DC SERVICES is responsible for the contractual provision of the services it is obligated to perform.
3.4 The services generally do not include the provision of hardware or software. Any agreement for the transfer of hardware or software in the context of the services will be made exclusively under the terms of a separately concluded hardware transfer or software license agreement.
3.5 The service hours of DC SERVICES are Monday to Friday (excluding public holidays at the main office of DC SERVICES) from 8:30 AM to 5:00 PM.
3.6 If the Customer does not provide specifications for the performance of the service (e.g., with respect to concept, design, and/or technology), DC SERVICES is free to implement the service provision.
3.7 If the Customer requests changes beyond the offer during or after the provision of the service, the Customer shall bear the additional costs.
3.8 If the execution of the order is delayed for reasons attributable to the Customer, DC SERVICES may demand a reasonable increase in the compensation.
3.9 The provision of services by DC SERVICES does not include legal advice, nor does DC SERVICES conduct any review of the legal, especially the competition, trademark, or copyright legality of the services. DC SERVICES also does not provide services in tax, investment, financing, insolvency, IT, auditing, or accounting matters.
3.10 DC SERVICES is entitled to provide the services itself or through its employees or through third parties, in particular affiliated companies of DC SERVICES.
3.11 DC SERVICES may offer services from other providers or a DC SERVICES service may enable access to services from other providers, for which the Customer may need to accept the conditions of these providers. By linking to or using services from other providers, the Customer agrees to their terms. DC SERVICES is not involved in these agreements and is not responsible for the services of other providers.
3.12 DC SERVICES business partners who use or make services available are independent from DC SERVICES and decide solely on their prices and conditions. DC SERVICES is neither responsible for their actions nor for their omissions, statements, or offers.
4. Customer’s Coöperation Obligations
4.1 Each party will designate a contact person for the duration of the implementation of an order/project. The necessary actions required by both parties to realize an order will be coördinated between these contact persons. The respective contact persons must be named in writing to the other party within 10 days after the conclusion of the contract.
4.2 To perform the services within the agreed time frame and budget, DC SERVICES relies on the coöperative collaboration of the Customer. This includes, in particular, the timely provision of all relevant information and necessary personnel, as well as early notification to DC SERVICES of any issues or concerns the Customer has regarding the services.
4.3 The coöperation obligations also include – to the extent necessary and/or agreed upon for the productive operational ability of DC SERVICES in relation to the specific individual contract – particularly the provision and setup of any required system accesses, network connections, roles and permissions, access to premises, tools, application software, infrastructure, data, hardware, and their administration, as well as the approval of costs, cost estimates, concepts, drafts, and, where applicable, acceptance of (partial) services. The responsibility for materials, information, data, and/or preliminary work provided by the Customer lies solely with the Customer. Timely transmission in the requested form is a fundamental requirement for the success of the respective project.
4.4 If the Customer has been provided with personalized access data in connection with the services to be performed, its further distribution, even within the Customer’s organization, is prohibited. The Customer shall immediately inform DC SERVICES if changes and/or risks arise concerning the access data provided by DC SERVICES, particularly if employees of the Customer with access rights leave the Customer’s company.
5. Third-Party Access to Work Results
5.1 The services are provided exclusively for the Customer; the contract does not constitute a contract in favor of third parties. Algorithms, designs, layouts, explanations, reports, evaluations, presentations, works, software, or other work results (collectively referred to as „Work Results“) created or provided in the course of the services are confidential information of DC SERVICES and are intended for the Customer’s internal use only, unless otherwise agreed in the individual contract.
5.2 The Customer is liable to DC SERVICES for any violations of the contract by its organs, employees, affiliated companies, and authorized or unauthorized recipients of the Work Results, as if they were the Customer’s own fault.
6. Performance/Delivery Deadlines and Dates
6.1 If no time frame is agreed upon for the respective specific service, the deadlines for the services to be performed will be agreed upon by the parties in writing at short notice.
6.2 Performance/delivery deadlines and dates (delivery time) are only binding if confirmed in writing by DC SERVICES.
6.3 The adherence to deadlines and dates depends on the complete clarification of the order, all required approvals being granted, and payments, securities, and other coöperation obligations (e.g., provision or submission of documents, provision of information, approval of concepts, drafts, or specifications that DC SERVICES submits to the Customer for approval) being timely received or fulfilled by DC SERVICES. Deadlines will be extended appropriately if these conditions are not met on time.
6.4 The delivery time is interrupted during the period of review of concepts, drafts, test versions, etc., by the Customer. The interruption is calculated from the day of sending to the Customer until the receipt of their response.
6.5 If the Customer requests changes to the order after the contract is awarded, which affect the duration of production, the delivery time will be adjusted accordingly.
6.6 Delays for reasons not attributable to DC SERVICES (e.g., force majeure, fault of third parties, or other unforeseeable events beyond their control) will result in a reasonable extension of the deadlines.
6.7 If DC SERVICES delays its performance, the Customer is entitled to exercise their legally granted rights only after setting a reasonable grace period.
7. Changes /„Change Request“
7.1 If the Customer requests additional services, extensions, or other changes to the contractually defined services („Change Request“), these must be agreed upon separately and remunerated.
7.2 The Customer will notify DC SERVICES of their Change Request in writing. DC SERVICES may refuse change requests without providing a reason, but may not refuse them unreasonably. After reviewing the technical feasibility, DC SERVICES will provide a Change Request offer. This offer will include a description of the services to be performed to implement the change request, as well as an estimate of the additional costs involved.
7.3 The Change Request will become part of the services owed only when the Customer accepts the Change Request offer from DC SERVICES in writing. If the Customer does not accept the Change Request offer, DC SERVICES is entitled to invoice the efforts incurred for the Change Request according to the agreed remuneration terms. This includes, in particular, the review of the change request and the preparation of the change proposal.
7.4 Regardless of the above procedure, changes may be agreed at any time by mutual consent between the parties. These agreements should be documented and confirmed in writing by the respective contact persons. If no separate remuneration or price changes or changes to the contract terms are agreed, the services will be paid according to the effort involved, based on the agreed remuneration rates.
8. Acceptance
8.1 DC SERVICES will make any work contract-related services accessible to the Customer upon completion and will inform the Customer about the completion.
8.2 The Customer is obliged to accept the service within 10 business days from the time DC SERVICES informs the Customer about the completion, provided the completion is in accordance with the approved concept. The Customer confirms the acceptance in writing.
8.3 If neither party requires formal acceptance or if the acceptance date requested by either party does not take place due to a circumstance attributable to the Customer, the contractual service provided by DC SERVICES is deemed accepted if the Customer uses the service or fails to report any significant defects in writing to DC SERVICES within ten days after receiving the service.
8.4 If the Customer unjustifiably refuses to accept the service properly offered to them (delay in acceptance), DC SERVICES is entitled to invoice all services as if formal acceptance had occurred.
9. Remuneration
9.1 DC SERVICES will receive the remuneration for the services described in its offer, plus the applicable VAT.
9.2 Invoice amounts are due upon receipt of the invoice and payment must be made within 30 days to an account specified by DC SERVICES.
9.3 Prepaid services must be used within the agreed period. DC SERVICES does not provide credits or refunds for prepaid one-time fees or any other amounts that have already been due or paid.
9.4 The Customer is only entitled to offset or exercise a right of retention if there are legally established, uncontested, or recognized counterclaims.
10. Right of Refusal /Default
10.1 If the customer is in default with their payment obligations, DC SERVICES is entitled to exercise a right of refusal concerning the contractually agreed services, provided that the customer has not settled the outstanding payment despite a deadline being set and proper notice being given.
10.2 While exercising the right of refusal, the customer is obligated to continue paying any non usage-dependent fees.
10.3 If the customer ceases payments, becomes insolvent, or applies for the opening of a settlement or insolvency procedure, or is in default with the redemption of due bills of exchange or checks, the total amount owed to DC SERVICES will become immediately due. The same applies in the case of a significant deterioration of the customer’s financial situation. In these cases, DC SERVICES is also entitled to demand sufficient security or to withdraw from the contract.
11. Intellectual Property Rights
11.1 If the services provided by DC SERVICES to the customer are legally protected, particularly by copyright, all rights to usage, modification, and exploitation remain with DC SERVICES, unless explicitly stated otherwise in the respective offer/contract.
11.2 Upon payment of the agreed remuneration, DC SERVICES grants the customer a simple, non-exclusive, non-transferable, non-sub-licensable right to use the respective service provided by DC SERVICES for the customer’s internal use within the scope of the customer’s operations, for the agreed purpose, and for the duration of the contract or agreed usage period. Any further use, modification, or exploitation, as well as the transfer of raw or working files, drafts, concepts, or source code, requires the written consent of DC SERVICES and is subject to the payment of a separate, reasonable fee.
11.3 The usage rights granted under Clause 11 do not include any rights to software used, developed, or provided by DC SERVICES as part of the services or deliverables. These may be provided to the customer only under separate licensing conditions, to be agreed in writing or text form.
11.4 If the customer is granted a time-limited usage right for the services, or if usage rights expire due to termination, the customer must return or destroy all copies, such as disks containing files, software, and databases, as well as all written documentation and materials, to DC SERVICES. The customer must also cease using these materials. The customer will delete all files, software, and databases stored by them or under their instruction unless they are legally obligated to retain them for a longer period.
11.5 If the customer uses the services provided to them without authorization, especially if they deviate from the agreed purpose, usage scope, and/or after the expiration of the agreed usage period, the customer agrees to pay an appropriate license fee for such usage, as well as a penalty fee determined by DC SERVICES, which can be judicially reviewed in case of a dispute. The customer will also indemnify DC SERVICES against any claims from third parties and associated expenses resulting from unauthorized use.
11.6 DC SERVICES reserves the right to use certain conceptual ideas or components introduced into custom strategies or works developed specifically for clients in other projects for other clients, unless explicitly excluded by the parties. Additionally, DC SERVICES may use and/or transmit data and/or information provided by the customer for statistical, benchmarking, research, and publication purposes, as well as industry comparisons, in anonymized and aggregated form, even after the completion of the project/assignment. The customer grants DC SERVICES and its affiliates irrevocable, simple, unlimited rights to use and modify this data as necessary.
11.7 Open source software is not covered by the above regulations. If open-source software is used within the scope of the contractual relationship, the conditions applicable to this open source software take precedence and govern the rights to such software. The usage rights for open-source software are subject to the respective license conditions.
11.8 Unless legitimate interests of the customer oppose, DC SERVICES may reference its own services in connection with the contract deliverables and/or promote its work for the customer in its own promotional materials.
12. Data Protection
12.1 The parties agree to comply with all relevant legal regulations and, in particular, to enter into all necessary data protection agreements.
12.2 The customer agrees that DC SERVICES may use electronic communication means such as email, the internet, and mobile telecommunications devices in communication with the customer, its affiliated companies, consultants, customers, and third parties.
12.3 DC SERVICES will not accept or request data deliveries via email. Data must be transmitted exclusively in encrypted form and/or via a secure data transfer portal. DC SERVICES cannot be held liable if data, particularly personal data, is sent unsolicited via email.
13. Confidentiality
13.1 Confidential information (“confidential information”) refers to: (i) the existence and terms of this contract, (ii) all information exchanged between the parties in connection with this contract, explicitly marked as „confidential“ or similar, (iii) all business secrets as defined in the German Trade Secrets Protection Act (GeschGehG), and (iv) technical or commercial information of any kind, or other data that is designated as confidential or is inherently confidential in nature. Data and/or information in anonymized and aggregated form as per Clause 11.6 are not considered confidential information of the customer.
13.2 The parties will treat all confidential information (i) with strict confidentiality, taking care to protect it and implementing appropriate measures to prevent unauthorized access, (ii) disclose it only to those employees, consultants, or affiliated companies who need access for the evaluation of the confidential information, and ensure that these individuals are also bound by confidentiality, (iii) not disclose it to third parties without written consent from the other party (third parties in this context do not include lawyers, auditors, or other professionals who are legally bound to confidentiality), and (iv) use it solely for the agreed purpose of performing this contract.
13.3 The parties are not obliged to maintain the confidentiality of confidential information that:
(i) is generally known or intended for publication upon disclosure,
(ii) was already in the possession of the other party prior to disclosure,
(iii) was developed or acquired independently by one of the parties without violating this agreement,
(iv) was approved for disclosure by the disclosing party in writing,
(v) was regularly made available to the parties by a third party without a confidentiality obligation, or
(vi) must be disclosed due to legal, stock exchange, or securities regulations, or governmental or judicial orders or similar requirements. The parties will notify the other party of any requirement or demand for disclosure as soon as they become aware of it, provided that such notice is not prohibited by law, governmental, judicial, or similar order.
13.4 The confidentiality obligation ends no earlier than five years after the termination of the contract.
13.5 This contract does not restrict DC SERVICES or its affiliates, organs, and employees from using information that individuals with access to confidential information may retain in their memory, and which becomes part of their experience, expertise, knowledge, and skills.
13.6 It is the business practice of DC SERVICES and its affiliated companies to serve clients who are in competition with each other or have conflicting interests, as well as parties on both sides of mergers, corporate acquisitions and sales, alliances, and joint ventures, while fully maintaining professional confidentiality obligations concerning customer information both internally and externally. DC SERVICES and its affiliated companies are not obliged to disclose or pre-arrange with the customer any contracts with or provision of services to other clients and are not restricted in providing their services
14. Non-Solicitation Clause
The contracting parties agree to refrain from any actions aimed at soliciting or employing employees of the other party. In particular, the customer agrees not to enter into any contracts with employees of DC SERVICES during the term of this agreement and for a period of 24 months after the termination of this contract. In the event of a breach of this provision, the customer agrees to pay a penalty to DC SERVICES equal to the gross annual salary of the employee recruited from DC SERVICES prior to their solicitation, which is not subject to judicial moderation.
15. Performance Deficiencies
15.1 The customer must immediately inform DC SERVICES in writing or in text form if they recognize that a service provided by DC SERVICES has not been performed in accordance with the contract. The customer must specify the non-conforming performance as precisely as possible when notifying DC SERVICES.
15.2 If the non-conforming performance is attributable to DC SERVICES and the customer has fulfilled their duty of notification in accordance with Clause 15.1, DC SERVICES is initially entitled and obligated to perform the affected service in accordance with the contract without additional cost to the customer within a reasonable time, provided that such rectification is possible and sensible.
15.3 If the rectification of the non-conforming performance is not possible or if it fails in substantial parts within a reasonable extension set by the customer, for reasons attributable to DC SERVICES, the customer is entitled to terminate the contract for good cause without notice. In this case, DC SERVICES is entitled to remuneration for the services rendered under the contract up until the effective termination.
15.4 Further claims due to performance deficiencies are excluded. This exclusion does not apply in cases of intent, gross negligence, or violations of life, body, or health, and liability under the Product Liability Act remains unaffected.
15.5 Claims related to performance deficiencies will become time-barred one year from the statutory start of the limitation period.
15.6 The aforementioned limitation period does not apply in cases of performance deficiencies due to intent or gross negligence by DC SERVICES, its legal representatives, or vicarious agents, the violation of life, body, or health, or liability under the Product Liability Act. In these cases, the statutory limitation period applies.
16. Liability
16.1 The services and work results cannot replace the customer’s management decisions and the procurement of services from third parties, especially in the areas listed in Section 3.9. The customer is solely responsible for their management decisions, the use of the services and work results, the operation and safety of their business, and compliance with applicable laws.
16.2 DC SERVICES and its affiliated companies‘ total liability under or in connection with the contract, services, and work results, regardless of the legal basis, is limited, in cases of simple negligence, to a total amount of EUR 25,000 (in words: twenty-five thousand euros). In the case of gross negligence, this maximum liability amount increases to EUR 50,000 (in words: fifty thousand euros).
16.3 In any case, DC SERVICES and its affiliated companies are only liable for breaches of material obligations, the fulfillment of which makes the proper performance of the contract possible in the first place and upon which the customer could reasonably rely („cardinal duties“), but only for typical, foreseeable damages.
16.4 DC SERVICES and its affiliated companies are also not liable if the liability arises from incorrect or incomplete data or information received from the customer or its affiliates or vicarious agents.
16.5 DC SERVICES is not liable for damages arising from violations of the customer’s obligations under Section 4.
16.6 DC SERVICES and its affiliated companies are not liable for lost profits.
16.7 All claims for damages under this section will be time-barred, to the extent legally permissible, within one year; the commencement of the limitation period is governed by Section 199 (1) of the German Civil Code (BGB).
16.8 To the extent that liability is excluded or limited under this section 16, such exclusion or limitation also applies to the personal liability of employees, vicarious agents, representatives, or bodies of DC SERVICES and its affiliated companies.
16.9 The liability limitations under Sections 16.3 to 16.8 do not apply in cases of intent, gross negligence, injury to body, life, or health, and liability under the Product Liability Act remains unaffected.
17. Duration and Termination/Continuing Obligations
17.1 Unless otherwise stipulated in the respective contract/offer, an ongoing contract is generally concluded for an indefinite period.
17.2 Unless otherwise regulated in the respective contract/offer, the contract can be terminated by either party at any time with one month’s notice to the end of the month during the term of the contract.
17.3 In the event of termination, the customer remains obligated to pay the remuneration (including incidental costs) plus statutory VAT in the amount incurred until the termination becomes effective or whose occurrence cannot be avoided after the termination becomes effective.
17.4 The contract can also be terminated without notice by either party for good cause if circumstances arise that make it unreasonable for one party to continue the contract, taking into account all circumstances and weighing the legitimate interests of both parties. A good cause exists, in particular, if the other party seriously violates a material provision of the contract and this violation (if curable) is not remedied within 90 (ninety) days after receiving a written request from the other party, or if a party is prevented from fulfilling its obligations under the contract due to force majeure for more than two months.
17.5 DC SERVICES is entitled to suspend the service completely, temporarily, or partially if a payment delay of more than 10 business days occurs.
17.6 The termination or other cessation of the contract does not affect liability, claims, or obligations arising before the termination or cessation, unless otherwise regulated in this contract. In particular, the provisions of Sections 11 (Protection Rights), 12 (Data Protection), 13 (Confidentiality), and 14 (Non-Solicitation) of this contract remain in effect even after termination.
17.7 Any termination must be made in text form.
17.8 After the termination of the contractual relationship, DC SERVICES is no longer obliged to provide the contractual services. DC SERVICES may delete all data transmitted and/or provided by the customer, including emails stored in mailboxes, after a period of ten days. It is the customer’s responsibility to ensure the timely storage and backup of the data.
18. Miscellaneous Provisions
18.1 The contract and the rights and obligations set forth therein may not be assigned or transferred by the parties unless otherwise specified in the contract. The provisions of § 354a HGB remain unaffected. Notwithstanding the first sentence, the customer hereby grants consent for the contract and the rights and obligations therein to be assigned and transferred by DC SERVICES to an affiliated company of DC SERVICES.
18.2 The contract contains all agreements and arrangements between the parties regarding the subject matter of the contract and supersedes all prior negotiations, arrangements, and agreements concerning the subject matter of the contract. There are no oral side agreements.
18.3 Any changes and additions to the contract (including this written form requirement) must be made in writing.
18.4 Should these terms and conditions or any contract entered into between the parties be incomplete or become impracticable or ineffective in individual provisions, the remainder of the contract shall remain valid.
18.5 In place of an impracticable provision, an enforceable regulation shall take effect, which comes closest to the economic objective the contracting parties intended with the impracticable provision.
18.6 In the event that provisions have not become part of the contract, are incomplete, or are ineffective, the content of the contract shall be governed by the applicable statutory provisions.
18.7 For contracts concluded based on these terms and conditions and for any claims arising therefrom, of any kind, particularly with regard to all services provided under the contract, German substantive law shall apply, excluding conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods.