General Terms and Conditions of elio GmbH

elio GmbH
Georg-Elser-Straße 5
35394 Giessen

E-mail: info@elio-systems.com
Website: elio-systems.com

Managing Director: Sascha Vorderstemann

Sales tax ID: DE 271 233 703

§ 1 Scope

(1) These General Terms and Conditions (hereinafter ‘GTC’) apply to all contracts for IT services, in particular software development, maintenance and further development, interface adaptation, customisation, installation and configuration, documentation, integration tests, and support and consultancy services (hereinafter ‘services covered by the contract’), which elio GmbH, Georg-Elser-Straße 5, 35394 Gießen (hereinafter “elio”) concludes with its customers (hereinafter “the Client”; elio and the Client collectively the “Parties”).

(2) These GTC apply exclusively to businesses within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

(3) Any conflicting, deviating or supplementary general terms and conditions of the Client shall not form part of the contract unless elio expressly agrees to their validity in writing. This shall also apply where elio provides services without reservation whilst being aware of conflicting terms and conditions of the Client.

(4) Individually negotiated contractual agreements, in particular provisions in a software contract, framework agreement or individual contract concluded between the parties, including their annexes, shall take precedence over these General Terms and Conditions (Section 305b of the German Civil Code (BGB)). In this respect, these General Terms and Conditions shall apply only in a supplementary capacity, insofar as the individual contract contains no provision or no exhaustive provision.

(5) These General Terms and Conditions, in the version available at www.elio-systems.com/en/conditions at the time the contract is concluded, shall also apply to all future business relationships between the parties, without the need for any further express notification.

§ 2 Offers; Conclusion of Contract; Contractual Components and Order of Precedence

(1) Offers made by elio are subject to change. A contract is only concluded upon written confirmation of the order by elio; the sending of an invoice shall be deemed equivalent to an order confirmation.

(2) The specific content and scope of the services shall be negotiated by the parties prior to the placing of the order and set out in writing or in text form (service specification). On the basis of this service specification, elio shall first draw up a concept; implementation requires approval by the client, although there is no obligation to grant such approval. Upon commencement of the provision of services, the contract shall be concluded on the basis of the service specification, the concept drawn up and these General Terms and Conditions, even in the absence of express approval.

(3) The constituent parts of the contract are, in the following order of priority: (a) the individually concluded software, framework or individual contract, including its annexes and appendices; (b) the relevant quotation or statement of work; (c) these General Terms and Conditions. In the event of any contradictions, the provision of higher priority shall prevail; however, provisions in the relevant individual contract or its annexes that purely describe the services shall always take precedence. With regard to the processing of personal data, an agreement on data processing concluded between the parties in accordance with Article 28 of the GDPR shall take precedence.

(4) Subsequent amendments and additions to the contract are only possible with the consent of both parties; they must be made in writing or in text form.

(5) Delivery and performance deadlines shall be extended appropriately in the event of force majeure or other obstacles for which elio is not responsible, as well as in the event of requests for changes by the client during project implementation, insofar as these have a significant impact on the delivery or service.

§ 3 Provision of Services

(1) elio shall provide the services covered by the contract in accordance with the contractual agreements and in line with the current, generally recognised state of the art. elio shall take into account recognised procedural guidelines and industry standards, as well as – provided this is reasonable for the client and communicated in writing prior to the commencement of services – the client’s specific provisions, methods and application practices.

(2) Where the deliverables consist of documentation or other texts, elio shall produce these in German or English.

(3) Where agreed, elio shall grant the Client access rights to the work deliverables within the development and collaboration systems used (e.g. GitLab, Confluence, Jira Service Desk) – in the case of software that has been wholly or partly programmed or further developed, this shall include access to its object and source code at all stages of development, including interim and final stages, together with the associated documentation. The Client shall have the option to view and back up this data. At the Client’s request, elio shall instruct the Client’s developers on deployment and provide the necessary access details for viewing the SBOM.

(4) Any declarations of approval by the Client – in particular within the ticketing system – shall be deemed to constitute (partial) acceptance within the meaning of § 7.

(5) Each party is responsible for complying with the legal framework applicable to it (e.g. commercial, tax, trade, data protection and copyright regulations) and shall obtain and maintain any necessary regulatory approvals in good time and at its own expense. Where elio provides services in accordance with the Client’s specific requirements, the Client is responsible for ensuring that these requirements do not contravene the applicable legal framework (e.g. legally compliant pricing information).

(6) elio endeavours to ensure that all services offered are always technically up to date and to guarantee the greatest possible availability of the websites and systems it manages for its clients. As software errors can never be completely ruled out given the current state of the art, and as availability also depends on factors beyond elio’s control (e.g. browser compatibility, third-party infrastructure), 100 per cent availability at all times is not guaranteed.

§ 4 Client’s Obligations to Cooperate

(1) The Client shall facilitate the provision of the contractual services through active and appropriate cooperation. In particular, the Client shall provide elio with the information, data and documents necessary for the performance of the contract in a timely manner and, where necessary, shall grant elio’s staff access to its business premises during its business hours, as well as the necessary system and data access.

(2) The Client shall provide the agreed personnel resources for project management and project implementation and shall ensure that the staff deployed by it possess the necessary experience.

(3) Unless otherwise agreed, the Client shall be responsible for securing any data generated in the course of the provision of services and stored within its control.

(4) elio shall inform the Client in good time, in writing or via an agreed planning tool (e.g. a ticketing system), of the nature, scope, timing and other details of the cooperation required of the Client. Beyond the contractual obligations to cooperate, elio may only require further acts of cooperation insofar as these are necessary for the proper provision of services.

(5) If the Client fails to provide the necessary cooperation, or fails to do so in a timely or proper manner, agreed deadlines and dates shall be extended accordingly; elio may invoice for any proven additional expenditure caused thereby at the agreed rates or, failing that, at reasonable market rates. For its part, elio shall take reasonable measures to compensate for or mitigate any disruption to performance arising therefrom; the mutual liability of the parties shall otherwise be governed by Section 254 of the German Civil Code (BGB).

(6) The Client grants elio a non-exclusive, non-transferable right to use the intellectual property rights, information, data and documents provided by the Client, limited to the purpose and duration of the contractual services to be performed, within its own organisation and through authorised subcontractors.

§ 5 Project Management; elio Staff; Subcontractors

(1) Insofar as is appropriate for the performance of the contract, each party shall appoint a project manager and a deputy as permanent points of contact. The project managers must be empowered to take all decisions relating to the project themselves or to ensure that such decisions are taken promptly. Both parties shall ensure that they are available as required by the project and shall inform the other party without delay in the event of any inability to attend.

(2) elio shall carefully select the staff deployed to perform the services owed under the contract and shall ensure that the staff deployed are reliable and suitable for the intended services.

(3) elio shall retain exclusive authority over its staff; the staff deployed shall be subject solely to elio’s right to issue instructions. The Client is not authorised to issue direct instructions to elio’s staff regarding the provision of services; such staff shall not be integrated into the Client’s organisation. Unless otherwise agreed, elio’s staff shall use their own work equipment.

§ 6 Procedure for Changes to Services (Change Requests)

(1) The Client may request changes to or additions to the services at any time.

(2) elio shall review change requests and notify the Client of the outcome, together with the resulting costs, other financial implications, technical risks and effects on the project schedule, in the form of a binding quotation. elio shall offer changes to services at the contractually agreed prices, remuneration rates and fees and, in all other respects, on reasonable, market-based terms. The Client shall review the offer within ten (10) working days of receipt.

(3) If the Client accepts the offer, the changes shall form part of the contract. During an ongoing service amendment procedure, elio shall continue to provide the services covered by the contract as scheduled. If, prior to the conclusion of the procedure, services are to be provided which, due to the requested changes, would no longer be usable in whole or in part, elio shall notify the Client of this immediately in text or written form; the Client must then instruct elio to suspend or restrict the provision of the services in question until a decision on the service amendment has been made.

§ 7 Test phase; acceptance

(1) The provisions of this § 7 apply to services under a contract for work and materials, unless acceptance is precluded by the nature of the services.

(2) Once the agreed services have been implemented, a test phase shall commence during which the services provided by elio shall be reviewed, in particular with regard to their complete and error-free implementation. elio shall notify the client in text form of its readiness to carry out the test phase; the client shall commence the test phase within the agreed period or, failing that, within a reasonable period. Any errors occurring during the test phase must be listed individually and notified to elio in writing or in text form; the Client shall set elio a reasonable deadline for rectifying them. The Client may engage expert third parties of its choice to carry out and assess the test phase, provided that these are not direct competitors of elio and are subject to appropriate confidentiality obligations.

(3) The Client shall review the services provided within the agreed period, or alternatively within a reasonable period (‘review period’), and shall declare acceptance upon expiry of the review period if the services contain no errors or only errors of error classes 3 and 4 in accordance with § 8. Acceptance must be in text or written form (including via provided acceptance reports or tickets); Section 640 (1), second sentence, and (2) of the German Civil Code (BGB) remain unaffected.

(4) If non-trivial defects (Section 640(1) of the German Civil Code (BGB)) or defects in defect classes 1 or 2 as defined in Section 8 are identified, the Client may terminate the acceptance test. The Client shall notify elio in writing or in text form of any defects identified, either upon completion or termination of the acceptance test, in accordance with the defect classification, and shall set a reasonable deadline for their rectification. Once the deadline has expired, elio shall once again make the fault-free and acceptable services available for acceptance; during the subsequent acceptance test, only the documented faults shall be tested, insofar as they can, by virtue of their function, be the subject of an isolated test.

(5) Unless otherwise agreed, the subject of partial acceptance shall be the functionality of the partial service considered in isolation Section.

§ 8 Fault Classes

(1) The following classification of defects applies:

(2) Defect Class 1 (critical defects): The defect prevents the use of a service covered by the contract or essential parts thereof; use is wholly or almost entirely impossible, so that immediate rectification is essential (e.g. failure of the entire system or essential modules, login not possible, data storage not possible).

(3) Error Class 2 (significant errors): The error impairs usage to such an extent that reasonable use is no longer possible, or is only possible at disproportionate expense (e.g. failure of individual modules, serious impairment of performance, password reset not possible).

(4) Error class 3 (easily workable errors): The error has no significant impact on functionality and usability; an equivalent function can be achieved by taking additional steps. A fix is necessary but not urgent (e.g. errors in a form that can be circumvented by a workaround).

(5) Error class 4 (other errors): The error does not restrict the use of the service (e.g. purely visual defects with no impact on usability).

(6) A fault is also classified in a higher fault class if the faults in the lower fault class(es) collectively have the effects described in a higher fault class. A fault may be reclassified into a lower fault class following partial rectification or the identification of a workaround.

(7) The parties shall jointly decide on the classification of any faults that arise into the respective fault class. If elio incurs additional costs as a result of the Client miscategorising a fault, the Client shall reimburse these costs upon presentation of evidence, provided that elio has previously notified the Client in writing, in text form or via a ticket system in use, stating the reasons why it considers the fault classification to be incorrect, and the Client has nevertheless insisted on the fault being rectified in accordance with its own categorisation.

§ 9 Remuneration; Terms of Payment

(1) The amount of remuneration shall be agreed in advance between the parties. Unless otherwise agreed, elio’s services shall be invoiced on a time-and-materials basis using hourly and daily rates in accordance with elio’s price list valid at the time of commissioning (budget-based invoicing system). Any remuneration caps or flat rates agreed in the contract remain unaffected and shall take precedence.

(2) The agreed remuneration shall cover all necessary work, services, costs, expenses and other outlays incurred by elio, unless expressly agreed otherwise.

(3) All remuneration rates and prices are exclusive of the applicable statutory value-added tax.

(4) elio shall issue the client with an invoice in accordance with statutory requirements for each billable service. Unless otherwise agreed, the remuneration is due for payment without deduction within fourteen (14) days of receipt of a valid invoice and must be paid by bank transfer to the account specified by elio.

(5) Where partial acceptance has been agreed, the remuneration attributable to the respective stage of performance shall become due upon each partial acceptance, unless the parties have agreed on a different method of payment (e.g. monthly invoicing based on time spent).

§ 10 Warranty (Liability for Material and Legal Defects)

(1) Liability for material defects and defects of title shall be governed by the statutory provisions, unless otherwise provided for below.

(2) The parties shall inform one another without delay of any defects in performance that arise. Where several defects exist simultaneously, the Client shall be entitled to specify priorities to elio for their rectification; elio shall inform the Client of the progress and outcome of the rectification.

(3) If, due to the nature of the rectification, significant operational disruptions at the Client’s premises cannot be ruled out, the rectification must be carried out in a manner that minimises such operational disruptions as far as possible; in this case, the parties shall agree on the procedure.

(4) In the event of a defect which partially or completely restricts or prevents the functionality of the services covered by the contract and which cannot be rectified at short notice, elio may initially provide the client with a reasonable temporary solution enabling the client to maintain essential tasks and functions until the defect has been finally rectified.

(5) If the defect is due to a fault in the product of a supplier who does not act as elio’s vicarious agent, but whose third-party product elio merely passes on to the Client (e.g. payment services such as PayPal or Klarna), the Client’s claims for defects shall initially be limited to the assignment of elio’s claims for defects against its supplier.

(6) Any modifications or extensions to the services carried out by the client themselves or by third parties shall invalidate the client’s claims for defects, unless the client can prove that the modification or extension was not the cause of the defect. Furthermore, elio shall not be liable for defects attributable to improper operation, unsuitable operating conditions or the use of unsuitable operating resources by the client.

(7) elio’s liability for defects is excluded if the Client, contrary to a justified recommendation by elio (e.g. for reasons of necessary compatibility or IT security), refuses to update the systems and software (in particular shop systems, databases and third-party products) and the material defect is caused thereby.

§ 11 Liability; Insurance Cover

(1) elio shall be liable without limitation for damage caused intentionally or through gross negligence by elio, its legal representatives or senior executives, as well as for damage caused intentionally by other vicarious agents; in the case of gross negligence on the part of other vicarious agents, liability shall be determined in accordance with the provisions governing slight negligence in paragraph 5.

(2) elio shall be liable without limitation for damage caused intentionally or through negligence resulting from injury to life, limb or health by elio, its legal representatives or vicarious agents.

(3) elio shall be liable for damage arising from the absence of guaranteed characteristics up to the amount covered by the purpose of the guarantee and which was recognisable to elio at the time the guarantee was given.

(4) elio shall be liable for damages arising from product liability in accordance with the Product Liability Act.

(5) elio shall be liable for damages arising from a breach of fundamental obligations by elio, its legal representatives or vicarious agents; fundamental obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfilment of which the client may rely. In the event of a breach of cardinal obligations due to slight negligence, elio’s liability shall be limited to the damage typical of the contract and foreseeable at the time of performance, but shall not exceed EUR 1,000,000.00 per claim and EUR 2,000,000.00 in total for all claims arising from and in connection with the contract; any different amounts agreed in the individual contract shall take precedence.

(6) In all other respects, elio’s liability – regardless of the legal basis – is excluded.

(7) elio shall maintain, for the duration of the contract, business liability insurance customary in the industry, including financial loss liability insurance, and shall provide evidence of such cover to the Client upon request. Any minimum sums of cover agreed in the individual contract shall take precedence.

(8) Where the Client claims damages on the grounds of gross negligence, the statutory rules on the burden of proof shall apply. § 12 Limitation Period (1) The limitation period for claims for defects is twelve (12) months from acceptance or, where no acceptance takes place, from delivery. In the case of the delivery of updates, upgrades and new versions, the limitation period for these components shall commence upon their respective acceptance or delivery. (2) The reduction referred to in paragraph 1 shall not apply to claims under § 11(1) to (4) or in other cases where the law does not permit a reduction in the limitation period (in particular § 438(3) and § 634a(3) of the German Civil Code (BGB) in cases of fraudulent misrepresentation); in such cases, the statutory limitation periods shall apply.

§ 13 Confidentiality

(1) The parties undertake to protect all confidential information of the other party obtained prior to and in the course of the performance of the contract for an indefinite period in the same way as they protect their own comparable confidential information, and at the very least to treat such information as confidential with due care. Disclosure to third parties is permitted only insofar as this is necessary for the receiving party to exercise its rights or to fulfil the contract, and provided that such third parties are subject to essentially comparable confidentiality obligations. Each party may disclose the other party’s confidential information to its employees, members of its governing bodies, advisers and subcontractors involved in the performance of the contract.

(2) The duty of confidentiality shall not apply to information which (a) has been demonstrably developed independently by the recipient without recourse to the disclosing party’s confidential information, (b) has become generally available to the public without any breach of contract by the recipient, or has been lawfully obtained from an authorised third party without any obligation of confidentiality, (c) was already known to the recipient without restriction at the time of disclosure, or (d) has been released by written consent of the disclosing party.

§ 14 Data Protection; Data Backup and Data Security

(1) The parties shall comply with the relevant data protection regulations (www.elio-systems.com/en/privacy), in particular the GDPR and the BDSG.

(2) Insofar as elio processes personal data on behalf of the Client for the purpose of providing the services covered by the contract, the parties shall enter into a data processing agreement in accordance with Article 28 of the GDPR; this shall take precedence over the provisions of this § 14.

§ 15 Term of the Contract; Termination

(1) Unless otherwise stipulated in the relevant contract, contracts for ongoing services (in particular maintenance, further development and support) shall be concluded for an indefinite period and may be terminated by either party without giving reasons, subject to one (1) month’s notice to the end of the month. For services under a contract for work and materials, Section 648 of the German Civil Code (BGB) remains unaffected; Section 16(3) applies mutatis mutandis.

(2) Each party’s right to terminate the contract extraordinarily for good cause remains unaffected. Good cause shall be deemed to exist for one party in particular if (a) insolvency proceedings are opened in respect of the other party’s assets or the opening of such proceedings is refused due to lack of assets, or (b) the other party culpably breaches material contractual obligations even after receiving a formal warning and the expiry of a reasonable period.

(3) Any notice of termination must be in writing to be valid.

§ 16 Consequences of termination of the contract

(1) At the Client’s request, elio shall assist the Client or third parties designated by the Client, at the Client’s expense, in taking over third-party contracts or negotiating new third-party contracts necessary for the continuation of the services.

(2) Unless otherwise agreed in the contract, any further support services and post-contractual services must be commissioned and remunerated separately by the Client. As soon as the proper handover has been confirmed, elio shall delete or destroy all remaining parts of the system, copies, documents or data which the Client does not wish to be handed over, in accordance with data protection regulations, and shall confirm this in writing upon request; with the exception of documents required to prove or enforce the parties’ claims or which are subject to statutory retention obligations.

(3) Following ordinary termination, the Client shall only be liable for payment for the work results demonstrably performed and handed over up to the date on which the termination takes effect, on a pro rata basis in the case of partial services, even where flat-rate prices have been agreed.

§ 17 Final Provisions

(1) Subject to the assignment of monetary claims in accordance with § 354a of the German Commercial Code (HGB), the parties are not entitled to transfer their rights and obligations under the contract, in whole or in part, to third parties without the prior written consent of the other party.

(2) The Client may only set off undisputed or legally established claims or exercise a right of retention on the basis of such claims. elio is entitled to withhold services if the Client is in default with the acceptance of services or partial services, or with payment for accepted services, where the amount in arrears is 3,000.00 EUR net or more.

(3) Additions to, amendments of and ancillary agreements relating to the contract must be in writing; this also applies to the waiver of this requirement for written form. Transmission in text form, in particular by email, shall suffice to satisfy the requirement for written form. Individual contractual agreements within the meaning of Section 305b of the German Civil Code (BGB) shall take precedence.

(4) The law of the Federal Republic of Germany shall apply, to the exclusion of conflict-of-law rules that refer to another legal system, and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(5) If the Client is a trader, a legal person under public law or a special fund under public law, or if the Client has no general place of jurisdiction in the Federal Republic of Germany, the place of performance and the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be the registered office of elio GmbH (Section 38(1) of the German Code of Civil Procedure (ZPO)). In addition, elio is entitled to bring proceedings against the client at the client’s general place of jurisdiction.

(6) Should any individual provisions of these General Terms and Conditions or of the contract be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In such a case, the parties shall negotiate in good faith to agree on an appropriate provision that comes as close as possible to the meaning and purpose of the invalid or unenforceable provision; the same shall apply to any gaps in the provisions.