General Terms and Conditions of AlphaNodes GmbH

CONTENTS:

  • A. IT-SERVICES AND CONSULTING
  • B. SOFTWARE DEVELOPMENT AND RENTAL
  • C. TERMS OF USE

A. CONSULTING AND IT-SERVICES

1. Scope of Application

(1) This section A. of the General Terms and Conditions (hereinafter referred to as “T&C”) shall apply to contracts regarding consulting services, e.g. in the areas of project management and of employment of project management software, and/or IT services like e.g. installation, configuration, maintenance and support for software, including without limitation project management software or managed hosting, but except for services coming under subsection A.1.(2) of the present T&C, concluded between AlphaNodes GmbH, Bavariafilmplatz 3, 82031 Grünwald (hereinafter referred to as “we” or “us”) and the customer (hereinafter referred to as “Customer” or “you”).

(2) This section A. of the T&C does not apply to the development and rental of software as this is subject to the provisions of section B. of the T&C.

(3) Contradicting and/or additional terms and conditions of the Customer shall not become part of the contract.

(4) The present T&C shall solely apply to our business transactions with entrepreneurs within the meaning of the statutory definition in section 14 of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”), i.e. solely to natural or legal persons, or to partnerships with legal capacity, who or which enter into the business relationship with us for purposes of their trade, business or profession.

(5) The T&C shall also apply to all future contracts regarding consulting and IT services within the meaning of section A.1.(1) of the T&C, without the need for any further agreement on application of the T&C.

2. Conclusion of Contract

Contracts are concluded by way of individual correspondence via email, fax, phone or mail, or in presence of the parties.

3. Data Backups by Customer in case of IT Services

(1) Immediately prior to our performance of IT services the Customer shall prepare full backups of all data which we come in contact with when performing our services hereunder and/or which are existing on computers or other data carriers or storage media which we are coming in contact with in connection with the performance of our services hereunder.

(2) The Customer shall perform the data backup in such kind and manner and shall preserve the backed up data in such kind and manner as to format, processing, storage media and/or other relevant criteria, that the data can continuously be used, in case of loss or damage of the data, without interruption and in the same kind and manner as before.

(3) To the extent possible, the Customer shall prepare data backups in the aforesaid kind and manner as often as reasonably advisable, but no less than two times daily, and continue to prepare such data backups during our performance of IT services and, thereafter, up and until the completion of a given test phase and/or up and until the system in question runs stably again, as the case may be and as applicable.

(4) Any further going responsibility of Customer to secure data under the applicable laws shall remain unaffected.

4. Customer’s Obligations to cooperate

The Customer shall ensure that all of its cooperation duties required for the performance of the contractual services, e.g. the making available of SSL certificates, third party plugins subject to a charge or other third party software, license keys or access data will be fully provided to us in time and free of charge. Where the Customer does not fulfil or not fully fulfil its aforesaid cooperation duties, any increase of cost or deferral of time limits resulting therefrom shall be borne by the Customer.

5. Results of Consultation

The Customer shall use illustrative material, designs, concepts and other documents and/or materials which we make available to the Customer, for a limited time period or without limitation in time, in connection with our consulting services solely for the intended purposes of the respective consulting contract. Any use for a consultation of third parties which consultation would be in competition to our own consulting services shall not be permitted.

6. Remuneration, Invoicing

(1) The Customer shall pay for the elected services in accordance with the respective prices set forth in our service description and/ or price list for the respective products as current at the time of conclusion of the contract.

(2) Should we increase our prices generally, we shall be entitled to also increase the prices hereunder accordingly. The first modification of the prices hereunder may, however, not occur before the expiration of 6 months after the beginning of the agreement and not before the expiration of 6 months after the last preceding modification of prices hereunder. In addition, the increase of prices must be within the range of reasonable discretion (section 315 para. 3 of the German Civil Code {‘Bürgerliches Gesetzbuch’}, abbr. BGB).

(3) We shall be entitled to submit invoices in electronic form.

7. Use for Reference Purposes

We shall be entitled to use the name/designation, company name and/or logo of the Customer for reference purposes in online, print and/or other media.

8. Claims arising from Defects/ Warranty

Where our services are subject to the laws applicable to contracts to produce a work as such contracts are regulated in sections 631 pp. of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”), our liability for defects shall, in relation to entrepreneurs, be subject to the following:

The warranty period for Customer’s claims regarding defects shall be one year from acceptance of same by the Customer. This shall not apply to customer’s claims (i) for damages directed at a compensation for a bodily injury or for an injury to health, and where such claims are based on a defect for which we are responsible, or (ii) based on gross negligence of us or of a person assisting us in the performance of our obligations; the aforesaid claims defined under the aforesaid subsections (i) and (ii) of this sentence shall be subject to the applicable limitation period provided for under the applicable laws.

9. Exclusions and Limitations of Liability

Our liability for damages shall be subject to the following:

(1) In case of intention or gross negligence, also on part of any persons assisting us in the performance of our obligations, we shall be liable in accordance with the applicable laws. The same shall apply in case of a damage caused by negligent violation of life, body or health.

(2) In case of a damage to property or a financial damage, we shall solely be liable in case of breach of an essential contractual obligation, subject, however, to a maximum amount equal to the damage which was foreseeable at the time of conclusion of the contract and typical for the contract; essential contractual obligations within the aforesaid meaning shall be deemed such obligations the fulfilment of which is a prerequisite for performance of the contract and which the other party may generally expect to be complied with.

(3) Otherwise our liability, regardless of its legal grounds, shall be excluded.

(4) The exclusions and limitations of liability under the above paragraphs (1) to (3) shall apply correspondingly in favour of the persons assisting us in the fulfilment of our obligations.

(5) Any liability based on the assumption of a guarantee or under the German Product Liability Act (“Produkthaftungsgesetz”) shall not be affected by the exclusions and limitations of liability under the preceding paragraphs (1) through (4).

10. Choice of Law, Jurisdiction

(1) Applicable Laws

The laws of Germany shall apply. The Convention on the International Sale of Goods shall not apply. Where the customer is a Consumer, such choice of law shall only apply to the extent that it does not affect mandatory provisions of the country where the customer has its habitual place of abode.

(2) Court of Jurisdiction

For dealings with merchants, legal persons under public law or separate estates under public law, the courts of our place of business shall have jurisdiction over all conflicts arising hereunder. However, we shall remain entitled, at our choice, to file a lawsuit at the user’s location instead.

B. SOFTWARE - DEVELOPMENT AND RENTAL

1. Scope of Application

(1) This section B. of the Terms and Conditions (hereinafter referred to as “T&C”) shall apply to the

  • a. development of software specifically for the Customer and the making available of the software to the Customer for the term of the contract

  • b. rental of standard software (software already existing) to the Customer for the term of the contract

(both aforesaid kinds of software - software individually developed for the customer and software already existing - hereinafter referred to as “Software”) through AlphaNodes Gmbh, Bavariafilmplatz 3, 82031 Grünwald (hereinafter referred to as “we” or “us”) for/ to the customer (hereinafter referred to as the “Customer” or “You”). Software hereunder may include without limitation plugins and/or functional extensions and/or improvements to existing open source software, e.g. to the project administration software “Redmine”.

(2) The present T&C shall solely apply in relation to entrepreneurs within the meaning of section 14 of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”). „Entrepreneur“ within the immediately aforesaid meaning is each natural or legal person, or partnership with legal capacity, who or which enters into the business relationship with us for purposes of its trade, business or profession.

(3) Contradicting or additional terms and conditions of the Customer shall not become part of the contract.

(4) The T&C shall also apply to all future contracts regarding the development and/or rental of software, without the need for any further agreement on application of the T&C.

2. Conclusion of Contract

Contracts are concluded by way of individual correspondence via email, fax, phone or mail, or in presence of the parties.

3. Services

(1) Where Software is developed hereunder, it shall be designed in mutual consultation with the Customer. Scope, functions and descriptions of other qualities are defined in the documentation provided in connection with the offering. They are the basis for the calculation of prices.

(2) Third Party Software: To the extent that, in connection with our services, third party software will be included, the Customer shall purchase the required license separately. Accordingly, such third party software shall not be part of our services. By contrast, our services shall include our adaptation and/or modification, if any, of the respective third party software, as well as plugins developed by us and interacting with the respective third party software (e.g. plugins developed by us).

(3) Open-Source-Software: If and to the extent that, in connection with our services, open-source-software will be integrated, such open-source-software shall not be part of our services. By contrast, our services shall include autonomous software developed by us, like e.g. plugins interacting with the respective open-source-software.

(4) We shall undertake, upon Customer’s request, reasonable efforts to carry out subsequent requests of the Customer for modifications or supplements like e.g. an extension of the scope, implementation of additional functions or a modification or extension of processing stages or elements already released by the Customer. We shall be under no legal obligation to carry out subsequent requests for modifications or extensions, except if there is no apparent factual reason for rejection of such modifications. We shall promptly notify the Customer where we reject subsequent requests of the Customer for modifications. Any surplus time and material due to modifications or supplements shall be remunerated separately.

4. Prerequisites on the Part of the Customer

The contractual use of our software shall be conditional on whether or not the hard- and software employed by the Customer comply with the minimum technological requirements for the use of the Software. Such minimum requirements are indicated in the description of services on our website and/or in the offering documentation.

5. Rental of the Software, Usage Rights, Source Code

(1) The Software shall be made available to the Customer for the time period indicated in the services description. The Customer shall be granted the non-exclusive, non-transferable right to use the Software in accordance with the following provisions:

(2) The Software may, at any given point of time, only be used on a single computer. Use on further computers a separate license needs be purchased in each applicable instance.

(3) Reproduction or modification of the Software shall solely be permitted to the extent mandatorily provided under sections 69c 2nd paragraph, 69d 1st paragraph and 69e of the German Copyright Act (“Urheberrechtsgesetz”, abbr. “UrhG”).

(4) The Customer shall not be entitled to sublicense, to third parties, the rights granted hereunder and/or to grant rights of use to third parties hereunder.

(5) There shall be no right of Customer to receive the source code from us or to have it disclosed by us to Customer.

6. Rental

The Software shall be made available by way of download.

7. Protection of the licensed Material

(1) We shall remain the owner or holder of any and all rights of use in the Software and related user documentation granted through the present T&C.

(2) The Customer shall preserve, without modifications, notices on proprietary rights contained in the Software and user documentation, like e.g. copyright notices.

8. Data Backups

The Customer shall be responsible to prepare data backups at regular intervals, however no less than once per day, in order to be in a position to reconstruct its data in case of a loss of data in connection with the Software.

9. Co-operation of Customer

(1) The Customer shall timely provide us with all information, documents and/or other materials required to adapt our standard software to the use of the Customer (hereinafter referred to as the “Content”). The Customer shall solely be liable for Content provided by it. We shall not assume any obligation of inspection. Including without limitation, we shall not be responsible to check whether the Content is up to date, in accordance with the law, correct and/or suitable.

(2) The Customer guarantees that it is entitled to grant us the rights in the Content as per the grant of rights provided hereunder and that such aforesaid grant of rights does not violate any rights of third parties.

(3) The Customer shall ensure that the requirements in the Customer’s IT infrastructure (computer capacity, operating system and -version, server, bandwidth etc) communicated by us are in place or will, otherwise, be provided by the Customer in time.

(4) The Customer shall, for purposes of necessary mutual consultation, denominate staff which is authorized to decide independently and shall guarantee that such aforesaid staff will be available.

11. Use for Reference Purposes

We shall be entitled to use the name/designation, company name and/or logo of the Customer for reference purposes in online, print and/or other media.

12. Claims arising from Defects/ Warranty

(1) Should the services rendered by us be defective because their usability for the contractual purpose is unmade to an extent which is not insignificant only, then we shall be liable in accordance with the provisions on defects of goods and rights under the applicable laws. For defects of the Software which were already existing at the time of our making available of the Software to the Customer, we shall only be liable in case that we are responsible for such aforesaid defects.

(2) The Customer shall promptly indicate defects, if any.

(3) Claims based on defects shall lapse upon expiration of one year. This shall not apply to Customer’s claims (i) for damages directed at a compensation for a bodily injury or for an injury to health, and where such claims are based on a defect for which we are responsible, or (ii) based on gross negligence of us or of a person assisting us in the performance of our obligations; the aforesaid claims defined under the aforesaid subsections (i) and (ii) of this sentence shall be subject to the applicable limitation period provided for under the applicable laws.

13. Exclusions and Limitations of Liability

Our liability for damages shall be subject to the following:

(1) In case of intention or gross negligence, also on part of any persons assisting us in the performance of our obligations, we shall be liable in accordance with the applicable laws. The same shall apply in case of a damage caused by negligent violation of life, body or health.

(2) In case of a damage to property or a financial damage, we shall solely be liable in case of breach of an essential contractual obligation, subject, however, to a maximum amount equal to the damage which was foreseeable at the time of conclusion of the contract and typical for the contract; essential contractual obligations within the aforesaid meaning shall be deemed such obligations the fulfilment of which is a prerequisite for performance of the contract and which the other party may generally expect to be complied with.

(3) Otherwise our liability, regardless of its legal grounds, shall be excluded.

(4) The exclusions and limitations of liability under the above paragraphs (1) to (3) shall apply correspondingly in favour of the persons assisting us in the fulfilment of our obligations.

(5) Any liability based on the assumption of a guarantee or under the German Product Liability Act (“Produkthaftungsgesetz”) shall not be affected by the exclusions and limitations of liability under the preceding paragraphs (1) through (4).

14. Choice of Law, Jurisdiction

(1) Applicable Laws

The laws of Germany shall apply. The Convention on the International Sale of Goods shall not apply.

Where the customer is a Consumer, such choice of law shall only apply to the extent that it does not affect mandatory provisions of the country where the customer has its habitual place of abode.

(2) Court of Jurisdiction

For dealings with merchants, legal persons under public law or separate estates under public law, the courts of our place of business shall have jurisdiction over all conflicts arising hereunder. However, we shall remain entitled, at our choice, to file a lawsuit at the user’s location instead.

C. TERMS OF USE

The terms of use can be found here.