General Terms and Conditions amotIQ solutions GmbH hereinafter referred to as amotIQ

Status: 04/2021

§ 1 General information

  1. The following General Terms and Conditions apply to all amotIQ offers and contracts concluded with the client, including in current or future business relationships. They are recognized at the latest upon acceptance of the service by the client and do not have to be expressly agreed again.
  2. If, in individual cases, contractual or quasi-contractual relationships are established between amotIQ and a person other than the customer, the following terms and conditions shall also apply in this relationship.
  3. Deviating agreements, such as amendments, collateral agreements and supplements as well as deviating general terms and conditions or terms and conditions of purchase of the amotIQ customer are hereby expressly and finally rejected.
  4. Agreements and ancillary agreements deviating from our General Terms and Conditions are only effective if they have been confirmed by amotIQ in text form.

§ 2 Conclusion of the contract

  1. The commissioning is a binding offer. amotIQ can accept this offer within three weeks of receipt by sending an order confirmation or by providing the commissioned service to the customer.
  2. Any special agreements with amotIQ representatives or employees as well as verbal orders require confirmation in text form to be effective.

§ 3 Scope of the order

  1. The subject matter of the order is the agreed service, whereby the scope of services is determined exclusively by the written order of the client and / or the written order confirmation.
  2. Additions and amendments to the original order are possible at any time.
  3. Subsidiary agreements, amendments and additions (e.g. agreed on site by employees in the course of ongoing order processing) are valid and binding if they are set out in writing in an additional agreement (order extension).

§ 4 Execution of the order

  1. The client is obliged to provide amotIQ with all documents required for the execution of the order prior to the execution of the order and to provide amotIQ with all additional information that may be of importance for the execution of the order. This also applies to such documents / information that only come to the attention of the client after the order has been placed and that are important for the execution of the order. These are to be forwarded to amotIQ immediately after the client becomes aware of them.
  2. On the basis of the documents / information provided, amotIQ creates the commissioned service, whereby amotIQ assumes that the documents / information provided are complete and correct. amotIQ is not obliged to procure documents / information beyond this independently and otherwise.
  3. The customer shall provide amotIQ with the working environment required for the fulfillment of the order, such as employees, work rooms, hardware and software, data and telecommunications equipment, etc., at our discretion and free of charge. He grants amotIQ access to his hardware and software via remote data transmission. Otherwise, the additional costs incurred by amotIQ as a result are to be reimbursed by the client.
  4. If obvious discrepancies arise in the documents/information supplied during the execution of the order, the client must be informed accordingly. The client is obliged to clarify these discrepancies without delay within the bounds of reasonableness.
  5. If a time-limited order cannot be executed on time due to the new facts mentioned in Clause 1 or the obvious discrepancies arising in Clause 3, amotIQ must inform the customer of this. In this case, the contracting parties shall set a new date for the completion of the order.
  6. If, due to the nature of the order, the determination of a new completion date is not possible or if the customer no longer has an interest in the completion of the order due to the new facts, amotIQ is entitled to remuneration for the service already partially provided by amotIQ.
  7. If a flat-rate fee has been agreed for the execution of the order, additional remuneration is due for the additional service provided due to the new fact on the basis of the time spent multiplied by amotIQ’s usual hourly rates, plus ancillary costs in accordance with the current fee table.
  8. If the actual content of the order is significantly changed by the new facts mentioned under point 1, the original order is considered terminated. amotIQ is also entitled in this case to reimbursement of remuneration for the service already partially provided in accordance with the amotIQ presentation under § 4, point 5. At the same time, a new order between the parties is considered agreed, unless the client objects in writing within a reasonable period of time after amotIQ has informed the contractual partner of the consequences of his silence. The order can be extended by mutual agreement by written amendment and supplement.
  9. If amotIQ has to present the result of the activity in writing, only the written presentation is authoritative. Verbal statements and information provided by amotIQ employees outside of the order placed are always non-binding.
  10. amotIQ is not obliged to provide the services in person. For the execution of the order, amotIQ may use employees or freelancers as vicarious agents. With the consent of the client, amotIQ is entitled to entrust the order to a competent third party. In this case, amotIQ is only obliged to name the executing third party to the customer.

§ 5 Cancellation of the order

The contract can be terminated by either contracting party with a notice period of 3 months to the end of the quarter. Orders that have already begun must be completed and remunerated as agreed regardless of the termination of the contract.

§ 6 Poaching

The client and his employees or vicarious agents shall refrain from jeopardizing the independence of amotIQ employees and vicarious agents. In particular, he undertakes to pay a contractual penalty of EUR 25,000 in each individual case for offers of employment and for offers to accept orders on his own account.

§ 7 Protection of intellectual property

The customer undertakes to use the services provided by amotIQ, in particular the production of expert opinions, diagrams, analyses and templates for the creation of software programs, only for the contractual purpose and for his own purposes. Any disclosure to third parties requires the prior written consent of amotIQ. In all other respects, the statutory provisions on the protection of intellectual property apply. If no contract is concluded, documents and text programs provided in advance must be returned to amotIQ or deleted. In any case, further use is prohibited. For each case of infringement, a contractual penalty of EURO 25,000.00 per individual case is due. § 8 Duty of confidentiality

  1. amotIQ undertakes to maintain confidentiality with regard to those facts that come to amotIQ’s knowledge during the execution of the order, unless the client releases amotIQ from this obligation. The duty of confidentiality continues to exist even after termination of the contractual relationship.
  2. The client has the right to release amotIQ from the duty of confidentiality, whereby he can determine the scope of the release from the duty of confidentiality himself. This must be communicated to amotIQ in writing.
  3. In liability cases, amotIQ is released from the duty of confidentiality to the extent that amotIQ’s liability insurance requires information in order to be able to settle the insured event.

§ 9 Remedy of defects

  1. amotIQ provides a warranty for any defects arising from the contractual relationship.
  2. The customer’s right to rectify defects is limited to subsequent performance through elimination or rectification of an existing defect or replacement delivery, at amotIQ’s discretion. If the subsequent performance fails, the client has the right to demand the rescission or reduction of the remuneration. In the case of only minor defects, however, the client has no right of withdrawal.
  3. The client must notify amotIQ in writing of obvious defects within two weeks of acceptance, otherwise the assertion of the claim for rectification of defects is excluded. Timely dispatch is sufficient to meet the deadline. The client shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notification of defects. The claims according to clause 2 expire one year after the start of the statutory limitation period, unless amotIQ can be accused of gross negligence and in the event of physical injury and damage to health attributable to amotIQ or in the event of loss of life of the customer.
  4. If the client chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he is not entitled to any additional claims for damages due to the defect.
  5. Obvious inaccuracies, such as typographical errors, calculation errors and formal defects contained in amotIQ reports, expert opinions, etc., can be corrected by amotIQ at any time, including vis-à-vis third parties. In principle, only our product description is deemed to be agreed. Public statements, promotions or advertising do not constitute a proper statement of quality.

§ 10 Liability

  1. In the event of slightly negligent breaches of duty, amotIQ’s liability shall be limited to the direct average damage foreseeable at the time of conclusion of the contract. This also applies to slightly negligent breaches of duty by amotIQ’s legal representatives or vicarious agents.
  2. Claims of the client arising from product liability or from bodily injury and damage to health attributable to amotIQ or in the event of loss of life of the client are not affected by the limitation of liability.
  3. The customer must test the service provided by amotIQ before using the service productively. Furthermore, he must provide proof that he has tested the service provided by amotIQ. The result of the test must be handed over to amotIQ in writing. If the customer does not fulfill this obligation, any liability of amotIQ for the service provided and any resulting claims expires. If defects occur during the tests of the service to be provided or provided by amotIQ, §9 of amotIQ’s GTCs comes into force.

§11 Retention of title

  1. amotIQ retains title to the goods until all claims arising from an ongoing business relationship have been settled in full.
  2. The client is obliged to treat the goods with care. If maintenance and inspection work is required, the customer must carry this out regularly at his own expense.
  3. amotIQ must be informed immediately in writing if a third party gains access to the goods, in the event of seizure, other damage or destruction of the reserved goods.
  4. amotIQ is entitled to withdraw from the contract and demand the return of the reserved goods if the customer acts in breach of contract – in particular in the event of default of payment or breach of an obligation under Clause 3 of this provision.
  5. the client is entitled to resell the reserved goods in the ordinary course of business. He hereby assigns to amotIQ all claims in the amount of the invoice amount that accrue to him through the resale to a third party. amotIQ accepts the assignment. After the assignment, the customer is authorized to collect the claim. amotIQ reserves the right, however, to collect the claim itself as soon as the customer does not properly meet his payment obligations and falls into arrears.

§12 Default of acceptance and failure of the customer to cooperate

If the customer is in default of acceptance of the service offered by amotIQ or if he fails to cooperate in accordance with § 4, amotIQ is entitled to declare within a reasonable period of time that amotIQ will refuse to continue the execution of the order after the fruitless expiry of the period set by amotIQ. After fruitless expiry of the deadline, amotIQ is entitled to terminate the contract. In this case, amotIQ is entitled to remuneration for the service already rendered. Instead of termination, amotIQ can also demand compensation instead of performance. In this case, the customer is obliged to pay a lump-sum compensation amounting to 30% of the net purchase volume. The customer is at liberty to prove that lower damages or no damages were incurred in the individual case. amotIQ is entitled to prove higher damages in individual cases and to assert these against the customer.

§13 Right of retention

As long as the claims made by amotIQ from the contractual relationship have not been settled in full, amotIQ has a right of retention. This extends to all documents provided by the customer – and to all documents produced by amotIQ – with the exception of those that the customer absolutely needs to fulfill legal obligations.

§14 Remuneration

  1. The amotIQ offer and price lists are subject to change and non-binding, subject to written order confirmation.
  2. All prices are quoted in EURO plus the applicable VAT, freight and packaging and only for the respective individual order. They apply only to the services listed; special services are charged separately.
  3. The prices quoted by amotIQ correspond to the current cost situation. They apply on the condition of unhindered order execution and constant labor costs. Should cost increases occur up to the date of completion, amotIQ is entitled to recalculate the prices applicable at the time of completion. If the price increase significantly exceeds the general cost of living, the client may withdraw from the contract. In non-commercial transactions, this only applies if completion takes place more than four months after conclusion of the contract.
  4. Orders for which fixed prices have not been expressly agreed shall be invoiced at our prices valid on the day of delivery/completion. Clause 3 shall apply mutatis mutandis.
  5. In addition to the remuneration, amotIQ is entitled to demand reimbursement of the expenses incurred.
  6. Furthermore, amotIQ is entitled to demand reasonable advances on remuneration and reimbursement of expenses and to make the delivery of the service dependent on full satisfaction of the claims.
  7. Several clients are liable as joint debtors.
  8. Offsetting against fee claims and reimbursement of expenses is only permitted with undisputed or legally established claims. The same shall apply if the client’s counterclaim is disputed but ready for decision.

§15 Reference

The client can be listed in the amotIQ customer list and is available as a reference after consultation.

§16 Choice of law / place of fulfillment

Claims arising from the contractual relationship are subject to German law with the exception of the UN Convention on Contracts for the International Sale of Goods. Unless otherwise agreed and stipulated by law, the place of performance shall be Saarbrücken. The place of jurisdiction for commercial transactions for all disputes arising from legal relationships between amotIQ and the client is Saarbrücken.

§17 Partial invalidity

In the event that individual clauses are or become invalid, this shall not affect the validity of the remaining clauses. An invalid clause shall be replaced by a clause that comes as close as possible to the economic interests of the contracting parties. §18 Data protection We refer to our privacy policy at www.amotiq.eu.