1. Subject matter of the contract
1.1 These GTC shall govern the general conditions for the commissioning of a contractor for the provision of independent services and work performances not bound by instructions within the scope of software developments by VTA Software & Service GmbH (hereinafter referred to as VTA) for its customers.
1.2 The respective services owed under an order are set forth in the offer submitted by the contractor or the order placed by VTA.
2. Scope of application
2.1 These GTC shall apply exclusively within the territory of the Federal Republic of Germany.
2.2 Services shall be provided exclusively on the basis of these GTC. They shall also apply to all future transactions with the customer, provided that such transactions are of the same or a related kind.
2.3 General terms and conditions of the contractor are hereby rejected. Their validity can only be agreed individually.
2.4 These General Terms and Conditions shall apply exclusively vis-à-vis entrepreneurs within the meaning of section 14 of the German Civil Code (BGB) as well as vis-à-vis legal entities under public law or vis-à-vis a special fund under public law within the meaning of section 310 paragraph 1 sentence 1 of the German Civil Code (BGB). Prior to the conclusion of the contract, VTA may require that the customer sufficiently proves its entrepreneurial status, e.g. by providing its VAT ID number or other suitable evidence. The data required for this purpose shall be provided completely and truthfully.
3. Performance by the contractor
3.1 The contractor shall perform its services in accordance with the agreed or industry-standard quality standards and in accordance with its professional qualifications carefully to the best of its knowledge and belief and on time. The contractor is obligated to perform the work owed by him with the diligence of a conscientious software developer/consultant in accordance with the state of the art and current methods. This shall also apply to the contractor's own employees and subcontractors. The employees deployed by the customer shall be subject exclusively to the instructions of the contractor. The contractor shall not be entitled to have the services owed by him performed by independent third parties which he commissions on the basis of a separate agreement.
3.2 If it is foreseeable during the term of the project that an agreed fee budget will be exceeded, the contractor shall inform VTA without delay.
3.3 The Contractor shall grant VTA's customer all rights of use and exploitation for the results of activities created during its work.
3.4 The equipment necessary for the execution of the order shall not be provided by VTA, but shall be provided by the contractor at his own expense. However, the contractor shall be entitled to rent such equipment from VTA, provided that it is in stock. The provision of the individual rental items as well as the rental fee shall be regulated in a separate agreement, if applicable.
4. Compensation for services
4.1 The contractor shall be compensated for its work on a time and material basis (working hours), which shall be agreed within the scope of the respective offer or the respective order.
4.2 The contractor shall provide VTA with monthly evidence of the hours worked by him on the basis of the services rendered in each case after progress of the work and by submitting confirmed performance records (timesheets) and shall prepare an auditable invoice and send it to VTA. The agreed hourly rate shall include all operating, fee and order-related additional expenses.
4.3 Business trips agreed upon in advance shall be compensated with 0.30 Euro plus VAT per kilometer driven, if they are completed by personal car. Expenses, if agreed upon in the order or offer, will be compensated according to the applicable flat rates under tax law, and hotel accommodation will be compensated against proof without surcharges. Travel times cannot be compensated. Hotel bills have to be attached to the respective travel expense invoice, whereby it has to be ensured that only the use of a middle-class hotel is billable. Other special costs as well as additional travel expenses shall be settled separately between VTA and the contractor and offered to VTA in advance. Costs incurred subsequently and not agreed upon or approved shall not be considered. The contractor shall be responsible for the taxation of the compensation and the payment of any social security contributions.
4.4 The term of payment shall be 30 days after receipt of the invoice.
4.5 The contractor shall send the invoice as a PDF file, including attachments (timesheets), by e-mail to rechnungen(at)vtasoftware.de. Other file formats are not permitted.
4.6 If VTA withdraws from or terminates the contract, the contractor shall be entitled to payment of the compensation for services already performed within the scope of the order/offer.
5. Handover, acceptance, warranty and compensation for work performances
5.1 Exclusively in the event that the contractor has to render work and services pursuant to §§ 631 et seqq. of the German Civil Code (BGB), the contractor shall report to VTA at regular intervals on the progress of the work. Furthermore, the contractor shall notify VTA without undue delay of the completion of agreed partial performances ("milestones") and of the overall performance.
5.2 VTA or its customer shall accept the performance immediately upon completion. In case of existing defects, VTA shall notify the contractor accordingly and set a grace period for the elimination of defects. The performance shall be considered accepted if the customer does not notify the contractor in writing of the defects detected by him within a period of thirty days after notification of completion. After fruitless expiry of the grace period, VTA shall be entitled to reject the rectification of defects by the contractor and to carry out substitute performance at the contractor's expense.
5.3 At the request of both parties, partial acceptances may also take place, which shall be agreed upon in writing. The same shall apply to agreements on different handover and acceptance provisions for individual services. Reservations during acceptance due to known defects must also be made in writing.
5.4 Payment shall be made after acceptance of the service or partial service. Payments on account may be agreed.
5.5 Unless otherwise agreed in the order or the offer, the statutory provisions shall apply to any warranty claims of VTA against the contractor.
6. Intellectual property, rights of use and exploitation
6.1 All industrial property rights, copyrights, trademark rights, design rights, utility model rights and other intellectual property of a contracting party existing at the time of conclusion of the contract, in particular - but not limited to - secret know-how, shall remain the exclusive property and, in the absence of an express agreement to the contrary, the exclusive right of use and exploitation of the respective contracting party.
6.2 VTA shall be entitled to all work results of completed and unfinished work achieved by the contractor alone or together with other contractors or employees of VTA in the performance of or on the occasion of the performance of the services, including all notes, plans, formulas, concepts, technical improvements made, inventions, trademarks, design patents and utility patents and other results, including Confidential Information (co)developed by the contractor (the "Work Results").
6.3 The contractor undertakes to disclose to VTA without undue delay all work results which are capable of being protected by intellectual property rights.
6.4 The contractor may only use the work results for purposes other than the provision of services within the scope of an order based on these GTC if VTA consents thereto in writing.
6.5 To the extent that the work results developed by the contractor are protected by copyright, the contractor shall, to the extent permitted by law, waive all rights that it may have with respect to the work results and shall grant VTA the exclusive, irrevocable, perpetual, transferable and in all respects unrestricted right of exploitation and use for all known and as yet unknown types of exploitation and use. This includes, in particular, the right to reproduce the aforementioned work results without the contractor's express consent, to transfer them to image, sound and data carriers, to distribute, process, transform or translate them and to publish and exploit them in modified form or in the original. Furthermore, VTA shall be authorized, without separate consent for each individual case, to transfer this right in whole or in part to others or to grant others rights of use. The same shall apply to any legal successors. The above provisions shall continue to apply for an unlimited period of time after termination of the contractual relationship between the parties.
7. Confidentiality and competition provisions
7.1 The contractor and VTA undertake to treat all relevant business matters and processes concerning them and VTA's customer as strictly confidential, also beyond the end of the cooperation, and to carefully store any documents provided, to protect them from inspection by third parties and to return them without being requested to do so after the end of the cooperation or to permanently destroy or delete them. Contractor and customer shall also commit their employees and vicarious agents accordingly.
7.2 All documents, records, data, drawings, etc. made available to the contractor by VTA shall remain the exclusive property of VTA. They shall be returned to VTA upon request, at the latest upon completion of the contractor's services.
7.3 The work results and inventions achieved during or with the order - this also includes possible specially developed computer programs including their sub- and support programs and hardware products - shall be created for VTA and shall be its unrestricted property. The contractor and its employees shall support VTA's efforts to apply for patents for inventions to the extent possible. This shall also apply after performance of the services.
7.4 The business relationships established with its customers are an essential corporate asset of VTA. For this reason, during the cooperation and for twelve months after the end of the cooperation, the contractor undertakes not to cooperate with the customer of the client in the same project or a follow-up project or in the same department directly or through third parties without the participation of VTA.
7.5 The Parties undertake not to poach personnel from each other.
7.6 During the term of an order, the contractor undertakes not to perform any additional work directly for VTA's end customer within the scope of its activities.
8. Data protection and commissioned processing
8.1 If the contractor acts as a processor pursuant to Art. 28 DSGVO, it undertakes to conclude a corresponding order processing agreement with VTA and to use the data of VTA's customers only for the purposes and in the specific ways specified in the order processing agreement.
8.2 The contractor shall comply with the provisions of the German Data Protection Regulation (DSGVO) and the German Federal Data Protection Act (BDSG) when providing services.
8.3 The contractor shall likewise oblige its employees and other third parties engaged by it to comply with the aforementioned clause.
8.4 In the event of violations of these obligations, the contractor shall pay a contractual penalty of up to EUR 10,000.00 at the most, depending on the case of damage, if VTA can prove that the damage occurred. The assertion of further damages shall not be excluded. For damage events caused by the contractor intentionally or by gross negligence, VTA shall claim compensation from the contractor.
8.5 The aforementioned obligations shall apply for an unlimited period of time to all orders and offers, whether accepted or rejected.
9. Liability
9.1 The contractor shall be fully liable for itself and its employees in the event of intentional or grossly negligent conduct for all damages and any consequential damages incurred by VTA or its customers.
9.2.The contractor shall be liable to VTA for being able to perform the agreed tasks on the basis of his professional qualifications and experience and taking into account an appropriate training period.
9.3 The contractor warrants that all of the results of its activities are free of third party intellectual property rights and that no other rights exist which exclude or restrict the agreed use by VTA's customer. The contractor is obligated to indemnify VTA against all claims of third parties asserted by them on the basis of an infringement of property rights which is attributable to the fault of the contractor.
9.4 If an employee deployed by the contractor on the premises of VTA (or its customers) suffers an accident at work without the knowledge of VTA, the contractor shall notify VTA of the accident without delay. If such notification is neglected culpably and, therefore, exculpatory evidence cannot be provided by VTA or if VTA can no longer reasonably provide such evidence, the contractor shall be obliged to prove that it is not at fault for the occurrence of the accident. In the event that the contractor is at fault, all claims against VTA to which the contractor may be entitled by virtue of its own or derived law shall be excluded for the contractor. The contractor shall reimburse VTA for the amounts paid as damages or indemnify VTA against claims insofar as VTA is held liable by the injured party or otherwise by third parties in connection with the accident.
9.5 The customer shall not assume any insurance coverage for property imported by the contractor and its employees.
10. Compliance with the minimum wage act (miLoG)
10.1 The contractor assures VTA to comply with the provisions of the German Minimum Wage Act (MiLoG) for the employees deployed by it as employees.
10.2 If VTA is held liable due to the contractor's violation of the provisions of the German Minimum Wage Act (MiLoG) of its employees, the contractor shall indemnify the customer against the financial damage incurred in this respect.
11. Social Security
11.1 No employment or employment relationship subject to social security contributions shall be established between the Parties. The contractor shall be responsible for the tax and social security obligations arising within the scope of this contract, in particular also for adequate insurance for old-age provision and also for protection against illness and in the event of nursing care.
11.2 If the contractor violates his obligations under clause 10.1, VTA shall be entitled to demand reimbursement of the employee contributions to social insurance and to demand reimbursement in the future if a health or pension insurance institution determines that an employment relationship is subject to social insurance.
12. Final Provisions
12.1 Amendments or supplements to these GTC as well as to the contents of the order must be made in text form; this shall also apply to the cancellation of this text form clause.
12.2 These General Terms and Conditions as well as the offers or orders based on them shall be governed exclusively by the laws of the Federal Republic of Germany, expressly excluding the UN convention on contracts for the international sale of goods (CISG) and the conflict-of-law rules of private international law.
12.3 The place of jurisdiction is - Gelsenkirchen.