These General Terms and Conditions set out the rights and obligations that apply to the use of the software products and services provided to you by 123onsite.de GmbH (hereinafter referred to as “123onsite”).

The General Terms and Conditions are divided into General Provisions and Special Provisions (hereinafter collectively referred to as

“GTC”) as follows:

 

General provisions

Part A- General provisions

 

Special provisions

Part B- License terms (purchase and rental/SaaS) Part C- Terms for consulting services Part D- Terms for maintenance and support

Part E- Provisions for customer-specific software customization

 

The General Terms and Conditions(Part A) apply to every order for the use, maintenance and support of any software and all other services and works provided by 123onsite. The Special Provisions(Part B – E) relate to the specific software products and services ordered from 123onsite and apply in addition to the General Provisions if and insofar as these software products and services have been ordered by the customer.

 

In the event of contradictions, the Special Provisions shall take precedence over the General Provisions. In the event of contradictions between these GTC and the contracts, the contents of the contracts shall take precedence. Accordingly, the following order applies: contract – special provisions – general provisions.

 

Special terms and conditions (license or terms of use) may be agreed for third-party software which 123onsite co-distributes. Third-party software shall then be made available by 123onsite on the basis of these separately agreed special terms and conditions, which may in particular contain deviating provisions for rights of use and liability. In the event of contradictions, these special terms and conditions shall take precedence over these GTC.

 

Part A – General provisions

1. definitions

In these General Terms and Conditions and in the Special Terms and Conditions of 123onsite (together “General Terms and Conditions”), the terms listed below shall have the following meanings:

 

Description of requirements: Description of the agreed quality, in particular the functionality of the software and the requirements that the customer-specific software customization must meet.

 

User manual: Electronic or other documentation of the software by 123onsite.

 

Bugfix: A bugfix is a correction delivery/correction version for software or data to eliminate defects – usually to close security gaps that have become known – or to retrofit features that were previously not available.

 

Client: An end device that calls up services from a server (e.g. PCs, laptops, etc.).

 

Content Von 123onsites predefined planning data (e.g. CAD components) and elements that are integrated into the software or can be used with it. This includes in particular master service specifications items with unit prices, construction elements, the general element catalog and EKT calculation data. These contents are standardized data records and information developed and made available by 123onsite to support planning and its evaluations in the construction industry. They are not part of the actual software program, but represent supplementary data and information that can be used in conjunction with the software.

 

Customizing: Generic term for adaptations to standard software. Adaptation to the customer’s operational requirements (including configuration, installation, parameterization, setting up standard interfaces, data migration, etc.).

 

Third parties: Neither 123onsite nor companies/persons commissioned by 123onsite to provide services.

 

Third-party provider: Legal entities that are not 123onsite or the customer and that develop and/or offer third-party software.

 

Third-party software: Software, parts of software, software components, connection of components, or software platforms (e.g. hosting services) which are developed and/or offered by a third-party provider and made available to the customer by 123onsite.

 

Installation: Process in which the software is made ready for operation, i.e. the software is copied to a computer, server etc. and set up.

 

Configuration: The compilation of the software from various modules and the “linking” of these modules.

 

Customer: (Legal) person for whom 123onsite provides services or software under the contract or with whom 123onsite conducts contract negotiations.

 

Customer-specific software adaptations: Software, software components or interfaces that have been developed or modified by 123onsite on behalf of the customer in accordance with the agreed specification of requirements and are not part of 123onsite’s standard software. Customer-specific software adaptations are outside the product description or the intended use of the features defined therein and are usually made by modifying the source code.

 

Services: All services and work to be provided by 123onsite as well as delivery and provision of software for sale, rental, etc. as described in more detail in the contract.

 

Defect: A defect exists if the software deviates significantly from the functionality specified in the product description (quality agreement) and, if a certain usability has been contractually agreed or contractually assumed, this or the value of the software is significantly canceled or reduced. If a quality has not been agreed, § 434 BGB or, in the case of the SaaS license model, § 536 BGB shall apply.

It does not constitute a defect if a new, updated version of the software no longer has a feature that was available in a previous version. This does not apply to features that are owed according to the contract/product description.

 

(Minor) Update: Update of a Tier of the software, which may contain an adjustment, a problem solution or an improvement to the software. This can also include bug fixes.

 

123onsite: 123onsite Bausoftware GmbH or one of its subsidiaries, if they act as a provider of a service or software product of 123onsite.

 

Parameterization: The adaptation of the standard software to the range of functions required by the customer by setting parameters available in the software. No changes are made to the source code.

 

Product description: Description of the quality, in particular the functionality of the software and the requirements that the standard software must meet. The product description represents a quality agreement between the parties.

 

Release/Major Update: Includes significant innovations to the software, e.g. functional areas that are supported for the first time. A major update means that so many changes have been made to the code that it is no longer compatible with lower Tier versions. A major update is always accompanied by a release change.

 

Remote access: Remote access enables access from a remote location (local computer) to remote computers, servers, networks or other IT components. The connection is usually established with the help of remote desktop software (e.g. Teamviewer).

 

SaaS: Sub-area of cloud computing. Software as a Service (SaaS) is a license (rental) model in which the software is offered via the Internet, i.e. as a service.

 

Service times: Working days from Monday to Friday (excluding public holidays) during the normal business hours of 123onsite. The currently valid business hours of 123onsite are listed in the contract and/or on the 123onsite homepage.

 

Software: Standardized software program from 123onsite with all features and modules, user interfaces and graphical elements, standardized interfaces as well as databases and data sets that are an integral part of the software (with the exception of third-party components), which is made available to the customer in accordance with the contract (in particular product descriptions), as well as all updates such as bug fixes, updates and major releases. To be distinguished from customer-specific software adaptations. In addition, the software includes the associated content.

 

Other business combinations: Companies or “other mergers” (e.g. bidding consortia, consortia, joint ventures) in which the customer or a joint venture partner within the meaning of Sections 15 et seq. within the meaning of §§ 15 ff. AktG (German Stock Corporation Act) holds or will hold at least 20% of the shares (irrespective of the type of shareholding).

 

System requirements: The requirements define which hardware and which software of the customer is required for the operation of the software.

 

Affiliated companies: Group companies of the customer or of 123onsite in accordance with §§ 15 ff. AktG or § 271 HGB analogously as well as any other corporation or partnership in which the customer or 123onsite has a statutory, contractual or other co-decision right.

 

Tier number: 123onsite generally adheres to a versioning system for all software products in which the Tier consists of three numbers: The major update/release, minor update and bug fixes (x.y.z).

 

Contract: All documents which represent the agreement reached between the customer and 123onsite regarding the provision of services or delivery of software products (in particular quotations, order confirmations, etc.), including those documents which have been included in the contract in part (in particular product descriptions).

 

2. general

2.1 These General Terms and Conditions shall also apply to all future contracts with the customer for the licensing of software and other services of 123onsite, even if they are not expressly agreed again.

 

2.2 Deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if 123onsite executes a contract without expressly objecting to such terms and conditions. Anything to the contrary shall only apply if 123onsite has expressly recognized them in writing; the General Terms and Conditions of 123onsite shall then apply in addition.

 

2.3 Any provisions deviating from these General Terms and Conditions shall only be binding if they have been agreed in writing and shall only apply to the relevant This also applies to the waiver of the written form requirement.

 

2.4 The written form requirements stipulated in these General Terms and Conditions may also be complied with by fax or e-mail.

 

2.5 123onsite shall be entitled to revise these General Terms and Conditions from time to time. 123onsite shall only make such changes for valid reasons, in particular due to new technical developments, changes in the license conditions of third-party software, changes in jurisdiction/legislation, changes in market conditions or other equivalent reasons. Otherwise, changes require the consent of the customer.

The amended General Terms and Conditions shall enter into force on the date on which 123onsite notifies the changes. The amended General Terms and Conditions shall apply to contracts concluded after the aforementioned amendment. However, the amended terms and conditions shall also apply to contracts already concluded unless the customer objects to 123onsite in writing within six (6) weeks of notification of the proposed amendment to the General Terms and Conditions.

 

3. offer and contract

3.1 Offers made by 123onsite to the customer are non-binding. Every order placed by the customer requires acceptance and confirmation by 123onsite, which may accept or reject an order at its own discretion. A contract shall only come into effect upon written confirmation of the order by 123onsite.

 

3.2 An order placed by the customer which deviates from the terms of an offer by 123onsite, even if only in insignificant points, shall always be deemed to be a rejection of this offer and a new offer by the customer. A contract in accordance with the new offer shall only be concluded after written acceptance and/or order confirmation by 123onsite.

 

3.3 Silence or implied action on the part of 123onsite shall not constitute acceptance or order confirmation.

 

4 Prices and terms of payment

4.1 The amount of the remuneration owed for the services and software products is set out in the offer or the order confirmation. If no price has been agreed in the individual case, the remuneration for the services and software shall be calculated at the 123onsite prices generally applicable at the time the contract is concluded. The prices of 123onsite are always net prices plus statutory VAT and other taxes, duties and surcharges of any kind that are levied by the government or any other competent authority now or in the future. It is the customer’s responsibility to ensure that any statutory taxes are paid to the relevant authorities.

 

4.2 All payments shall be due within 14 calendar days of invoicing by 123onsite.

 

4.3 Upon conclusion of the contract, the customer shall owe 123onsites remuneration for the services and software products ordered, irrespective of whether the customer actually makes use of them or not.

 

4.4 123onsite may (at its own discretion) offer the customer various payment methods (bank transfer, SEPA direct debit). Insofar as 123onsite offers the customer a specific payment method and the customer accepts this, the customer agrees that additional terms and conditions of 123onsite or third parties shall apply to this payment method.

 

4.5 If, when selecting the SEPA direct debit payment method, the direct debit is not honored due to insufficient funds in the account or due to the provision of incorrect bank details or if the customer objects to the direct debit although he is not entitled to do so, the customer shall bear the fees incurred by the respective credit institution as a result of the chargeback if he is responsible for this In addition, a credit and data check is carried out for the direct debit payment option

 

4.6 123onsite may require the customer to make a full or partial advance payment or provide sufficient security for the fulfillment of its contractual obligations towards 123onsite if there is no business relationship with the customer yet, if the delivery or service is to take place in/abroad or if the customer has its registered office abroad or if there are reasons to doubt the punctual payment by the customer or if the customer does not meet its payment obligations or does not meet them on time or 123onsite is aware of a significant deterioration in the customer’s financial or payment situation.

 

5 Offsetting, retention

 

5.1 The customer may only offset or exercise a right of retention against due claims of 123onsite with undisputed or legally established counterclaims.

 

5.2 The customer also has no right of retention or set-off if his claim is time-barred, irrespective of whether the claim still existed when the right of retention or set-off arose.

 

5.3 In the event of a justified set-off/retention, the customer may only retain or set off payments to a proportionate extent taking into account the claim.

 

5.4 The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.

 

6. default of payment

6.1 If the customer fails to pay on time, the customer shall be in default without a notice of default being required. 123onsite shall be entitled to demand interest at the applicable statutory default interest rate as damages for default.

 

6.2 123onsites expressly reserves the right to assert further claims for damages.

 

6.3 If the customer is in default of payment, 123onsite may revoke agreed payment terms for all claims.

 

6.4 123onsite shall also be entitled to provide further services only against advance payment or against security in the form of a performance guarantee from a credit institution or credit insurer authorized in the European Union The advance payment must cover the respective billing period or – in the case of one-off services – their remuneration.

 

6.5 In addition, 123onsite shall be entitled to revoke, discontinue or restrict and/or block the use of software products and services from other contracts with 123onsite in the event of default in payment by the customer without this giving rise to any compensation or other claims by the customer.

 

6.6 The customer shall assure 123onsite in lieu of an oath and confirm in writing that he has ceased use after 123onsite has revoked the right of use. 123onsite shall restore the right of use to the customer after the customer has made the payments in accordance with the contract.

 

7 Delivery and deadlines

7.1 Delivery deadlines and dates are only binding for 123onsite if 123onsite has confirmed them in writing.

 

7.2 Insofar as preparatory actions or cooperation by the customer are required for the performance of the delivery or service, the delivery period shall only commence upon completion of these actions or the deadline shall only be met if these actions are completed on time.

 

7.3 All delivery periods and dates shall be determined by 123onsite to the best of its knowledge on the basis of the information available at the time and shall be adhered to as far as possible, but are not fixed periods or dates. Exceeding these deadlines or failing to meet these dates shall not entitle the customer to compensation, repayment or discount or to terminate the contract with 123erfasst.

 

7.4 123onsite shall deliver the software in the current version within 12 months of the conclusion of the contract. Shorter delivery dates require the express written consent of 123onsite.

 

7.5 123onsite is entitled to make partial deliveries or render partial services, provided that these are reasonable for the customer.

 

7.6 Section 271 applies

 

8. subcontractors

In principle, 123onsites is permitted to entrust subcontractors in whole or in part with obligations arising from the contract, provided that this does not impair the customer’s interests worthy of protection. The customer may only object to an obligation of subcontractors for good cause. 123onsite shall be responsible for the fault of its subcontractor to the same extent as for its own fault.

 

9. place of performance

 

9.1 The place of performance shall be the registered office of 123onsite.

 

9.2 Depending on the type of service, the services may be provided externally/remotely or locally at the customer’s premises at 123onsite’s discretion.

be carried out if this is reasonable for the customer.

 

10. transfer of risk

10.1 The risk of accidental destruction, loss, theft, misappropriation or damage to items, data (including: user names, codes and passwords), documents, software or data files created, provided or used in the performance of the contract shall pass to the customer in accordance with the following provisions.

 

10.2 123onsites shall hand over the software to the customer digitally by electronic transmission (e.g. by remote data transmission, e-mail, etc.) or by making it available for download.

 

{a} If the software is transmitted electronically, the risk shall pass to the customer upon receipt by the telecommunications service provider commissioned by 123onsite to forward the software.

 

{b} If the software is made available for download, 123onsites shall inform the customer of the provision. The risk shall then pass to the customer when the software is made available and the customer is informed of this.

 

11. obligation to give notice of defects

 

11.1 The customer shall inspect the delivered software within 14 working days of delivery by 123onsite, in particular with regard to completeness and basic functionality. 123onsite must be notified of any defects that are detected or recognizable in this process within a further 10 working days by registered letter (written form in accordance with 126 BGB is required; Section 2.4 Part A shall not apply in this respect). The complaint must contain a detailed description of the defects so that 123onsite is able to assess the defects.

 

11.2 Defects that are not recognizable in the course of a proper inspection must be reported within 10 working days of discovery in compliance with the complaint requirements set out above.

 

11.3 In the event of a breach of the obligation to inspect and give notice of defects, the software shall be deemed to have been approved with regard to the defect in question. This shall not apply to fraudulently concealed defects or insofar as 123onsite has assumed a guarantee for the quality of the software.

 

11.4 A complaint by the customer shall not suspend the customer’s payment obligations.

 

11.5 The obligation to give notice of defects also applies to software that the customer receives as part of the warranty and maintenance or support.

 

12. reservation of title

12.1 The contract does not transfer ownership of a right or an object to the customer.

 

12.2 Insofar as 123onsite is obliged by a contract to transfer ownership of an item (including software – including that which is to be provided by means of remote data transmission) to the customer, ownership shall not pass until all claims owed by the customer have been paid in full.

 

12.3 If the customer defaults on payment, 123onsite shall be entitled to demand that the customer surrender the products subject to retention of title even if 123onsite does not withdraw from the contract. In the case of software, the deletion on the hardware used can be demanded by the customer with a corresponding declaration of deletion in lieu of an oath.

 

13. intellectual property rights

 

13.1 All registered and unregistered copyrights, patents, registered trademarks, trade names, database rights, design rights and other intellectual and industrial property rights and all similar rights relating to the protection of the software (including to the extent that customer-specific software has been created by specifications or cooperation of the customer) and the documentation are the sole property of 123onsite or its licensors. None of the provisions may be interpreted in such a way that it leads to a complete or partial transfer of these rights to the customer.

 

13.2 The customer may not modify, remove or render unrecognizable 123onsite’s intellectual and industrial property rights in whole or in part. The customer may not use or register the intellectual and industrial property rights of 123onsite in any jurisdiction worldwide. Any use of the intellectual and industrial property rights of 123onsite is reserved to 123onsite itself and any benefit arising from such use shall accrue to 123onsite.

 

14 Third-party property rights

14.1 If a third party asserts claims against the customer which are based on the infringement of his industrial property rights through the use of the software products and services of 123onsite, and if 123onsite is obliged to remedy this defect of title within the scope of the warranty, 123onsite shall also defend the customer against the claims of the third party as follows and shall be indemnified by the customer within the scope of the agreed limitation of liability (see Part A Clause 19)

 

14.2 123onsite shall assume the legal defense against such claims at its own expense. 123onsite shall reimburse the customer for the expenses incurred by the customer as a result of a legally effective judgment.

 

14.3 The prerequisites for this claim of the customer against 123onsite are that (a) the customer notifies 123onsite immediately of the assertion of the corresponding claim by the third party and (b) the customer has left the sole legal defense against these claims to 123onsite. Insofar as the customer is unable to fully transfer the legal defense to 123onsite, the customer shall instead grant 123onsite control over this and shall only and always act in agreement with 123onsite in the context of the legal defense or in settlement negotiations.

 

14.4 The customer shall support 123onsite in the preparation and implementation of the legal defense or settlement negotiations without restriction and free of charge.

 

14.5 123onsites shall only be liable for infringements of third-party rights within the European Union and the European Economic Area.

 

14.6 The limitation period for the indemnification claim corresponds to the limitation period for the customer’s warranty of title claims (Section 1 Part B).

 

14.7 Notwithstanding the other provisions of Section 19 Part A , 123onsite shall not be liable to the customer insofar as a claim is based on the following grounds:

 

{a} Use of the 123onsite software or services in connection with data, Equipment or software that 123onsite has not provided and where the 123onsite software or services do not in themselves cause an infringement or would otherwise be the subject of a claim;

 

{b} Use of the 123onsite software or services by the customer contrary to the contract, these GTC or the user manual;

 

{c} customization of the Software by any person other than 123onsite (other than persons authorized by 123onsite); or

 

{d} Infringement by 123onsite on the basis of an express instruction from the customer.

 

14.8 The customer shall indemnify 123onsite against the claims referred to in this Section 7 Part A if these are asserted directly against 123onsite.

 

14.9 If the customer is prohibited from using the software or services by a court decision due to an unlawful act in accordance with Section 1 Part A of these General Terms and Conditions, or if, in the opinion of 123onsite, there is a possibility that the software may be the subject of a successful claim for damages, 123onsite may, at its own discretion and at its own expense

 

{a} provide the customer with the right to continue using the software in accordance with these General Terms and Conditions;

 

{b} replace or adapt the software in such a way that it no longer infringes the law, provided that its functionalities remain essentially unchanged; or

 

{c} if options (a) and (b) are not reasonably realizable in the opinion of 123onsite, terminate the contract including the rights granted therein with respect to the unlawful software.

 

15. third-party software

 

15.1 The 123onsite software may include third-party components/services and/or other 123onsite software products.

 

15.2 If and insofar as 123onsite software or services contain third-party software, the license terms and conditions of use applicable between 123onsite and third parties shall also apply between 123onsite and the customer. In the event of contradictions, these shall take precedence over these GTC. At the request of the customer, 123onsite shall make these provisions of the third party available to the customer.

 

15.3 The Customer acknowledges that it has read and understood these Third Party Terms and that the Customer is aware that these Terms may be amended from time to time and that it is the Customer’s responsibility to familiarize itself regularly with any changes. The Customer’s continued use of the 123onsite Software and the Third Party Software after such changes shall be deemed to constitute the Customer’s acceptance of the revised terms, unless otherwise specified in these Terms.

 

15.4 Third-party software that is embedded in 123onsite software or sublicensed to the customer is licensed by 123onsite to the customer in its current state (as is).

 

15.5 In the event of a material or legal defect in the third-party software or other damage caused by the third-party software, the contracting parties agree the following: (a) 123onsite hereby assigns to the customer all rights that 123onsite may have against the third party in such a case The customer hereby accepts this assignment. (b) In such a case, the customer shall initially assert claims against the third party in full and assert the assigned rights against the third party (also in court). (c) Only thereafter, and insofar as the assertion against the third party (e.g. due to its insolvency or untraceability) has been unsuccessful, shall the customer be entitled to assert claims against 123onsite in accordance with the provisions of these GTC for warranty (liability for defects) and liability.

 

15.6 The Customer accepts that 123onsite has no control over the services and (software) products of third parties and that the Customer’s access to or use of the services and (software) products of third parties may be suspended or terminated at any time for any reason.

 

15.7 Termination of the offer of third-party software/services and/or access to another 123onsite software product shall not entitle the customer to any compensation.

 

15.8 123onsite gives no guarantee for a (good) connection with third-party services or with regard to the functionality and quality of the third-party software or services.

 

15.9 The provisions of clauses 1 to 15.8 Part A shall apply mutatis mutandis to the use of open source software.

 

16. transferability

16.1 The customer may only transfer the software to third parties if the third party expressly agrees to the continued application of the 123onsite GTC to him.

 

16.2 The license may only be transferred in full and not in parts. In particular, this means that purchased license volume packages may not be split up.

 

16.3 In the event of transfer, the customer must hand over all copies of the software to the third party, including any existing backup copy, or destroy the copies not handed over and confirm the complete handover or destruction to 123onsite in writing on request. The customer shall be obliged to inform 123onsite in writing of the name and full address of the third party and to submit a written declaration of assumption by the third party, according to which the third party assumes the existing contractual obligations and agreements (e.g. license agreements, maintenance agreement, etc.) with 123onsite with regard to the software and undertakes to bear any costs incurred in transferring the contract to the third party.

 

16.4 The customer may not make the software available to third parties for a limited period of time in return for payment (e.g. renting, leasing, sublicensing), in particular not by way of application service providing or host providing, unless this has been expressly permitted by 123onsite by contract.

 

16.5 Likewise, the customer may not provide the software to third parties free of charge for a limited period of time (e.g. loan).

 

16.6 The customer is also not permitted to allow third parties to use or manage the software (including timesharing or outsourcing).

 

16.7 The customer may not make the software available to third parties (including its employees) if there is reasonable suspicion that the third party will violate the contractual terms and conditions and/or these 123onsite GTC, in particular by making unauthorized copies.

 

17 Obligations of the customer to cooperate

17.1 In order to ensure a smooth process, the customer shall appoint one or more contact persons for the duration of the service provision. These must have the necessary experience, specific knowledge of the subject matter and an understanding of the objectives desired by the client.

 

17.2 The customer shall ensure that the contact person designated by him provides 123onsite with the documents, information, data and telecommunications facilities necessary for the provision of the service and – if necessary – a high-performance Internet connection to the extent required, in good time and free of charge. In addition, the customer shall ensure that these documents, information and data are complete and correct. 123onsite may assume that these documents, information and data are complete and correct, unless 123onsite recognizes or must recognize that they are incomplete or incorrect.

 

17.3 123onsite shall deploy suitably trained employees with the necessary specialist knowledge and shall continuously supervise and monitor them in the provision of services. Within this framework, 123onsite shall decide at its own discretion which employees 123onsite deploys or

 

17.4 If 123onsite’s employees perform their services at the customer’s site, the customer shall ensure that these employees can carry out their work undisturbed. The customer shall grant the employees unrestricted access to all software, documentation and to any location insofar as this is necessary for the provision of services at the discretion of 123onsite and is reasonable for the customer.

 

17.5 Insofar as it is necessary for the provision of services, the customer shall provide 123onsite with remote access to the necessary tools at any time upon request. 123onsite shall be responsible for selecting the tool used for remote maintenance and shall also provide the necessary licensing. The customer shall grant all required consents and, if necessary, obtain third-party approvals without delay.

 

17.6 In the case of services that take place on premises provided by the customer (e.g. events, training courses, workshops, etc.), the customer shall be responsible for providing the necessary technical equipment and a suitable environment. On request, the customer shall be informed of the specific requirements before the order is executed by 123onsites. If this is not the case and services cannot be performed or cannot be performed as agreed for this reason, the customer shall bear the responsibility for this and the resulting expenses. Any liability on the part of 123onsite is excluded in this case.

 

17.7 The customer must regularly carry out data backups and failure precautions appropriate to the type of data and risk. 123onsite points out that before the installation of updates and/or the performance of maintenance and support services by 123onsite or other interventions by 123onsite or by third parties commissioned by 123onsite, a data backup must be carried out in order to avoid data loss, in particular for the data created with the software (e.g. project data). The data backups must be stored in such a way that the backed-up data can be restored at any time.

 

17.8 The Customer must: a) ensure at all times that the Software and Documentation, as well as its Equipment and telecommunications and Internet connections, are adequately protected against misuse, damage (including damage caused by latency such as viruses, worms, Trojans, logic bombs, etc.), theft or destruction from any source; b) prevent any unauthorized person from copying, reproducing, translating, adapting, decompiling, recreating, modifying, rewriting or otherwiseb) prevent any unauthorized person from copying, reproducing, translating, adapting, decompiling, recreating, altering, reconstructing, accessing or otherwise duplicating or modifying the software and/or documentation; c) immediately inform 123onsite of any special circumstances of which the customer becomes aware regarding unauthorized copying, modification or use of the software and/or documentation as well as all other unauthorized actions; d) ensure that the number of actual users does not exceed the number of authorized and commissioned users.

 

17.9 In particular, the customer must make the necessary settings to its firewall, virus protection or similar data protection mechanisms and its network or server to ensure the functionality of the software.

 

17.10 The aforementioned obligations to cooperate are essential contractual obligations. If the customer fails to cooperate, 123onsite shall not be responsible or liable for any resulting restriction or postponement of the contractual services or for any resulting damage. For example, 123onsite shall not be liable for any resulting loss of data or for any delay in the extension of any performance deadlines to be met by 123onsite caused by the breach of cooperation obligations.

 

17.11 In this case, 123onsite shall make reasonable efforts to fulfill the contractual services regardless of the lack of cooperation. Insofar as 123onsite incurs additional costs or expenses as a result of such efforts, 123onsite shall be entitled to invoice these to the customer (in particular also in the case of a maximum or fixed price agreement without offsetting against the agreed sum).

 

18. audit law

 

18.1 123onsite shall be entitled to carry out an audit and/or inspection, or have it carried out by a third party, to determine whether the customer is complying with the terms of the contract, provided that such audit and/or inspection is carried out during normal business hours and does not unreasonably hinder the customer’s activities. Such an inspection shall be carried out by an expert selected and appointed by 123onsite. This expert shall draw up a summary report in which he shall set out his findings, but shall not provide 123onsite with any information other than that which becomes known to the expert during his examination and/or inspection. The costs of this inspection shall be borne by 123onsite, unless the inspection reveals that the customer has not complied with a provision of a 123onsite contract. In this case, the costs shall be borne by the customer.

 

19. liability

19.1 If 123onsite intentionally or grossly negligently breaches an obligation, irrespective of its nature and legal basis, in particular arising from the contractual relationship or in the event of the intentional or grossly negligent commission of a tortious act, 123onsite shall be liable for the resulting damage suffered by the customer in accordance with the law.

 

19.2 If 123onsite merely breaches an obligation through simple negligence, irrespective of the type and legal basis, in particular arising from the contractual relationship or in the case of simple negligence in the commission of a tortious act, claims for damages by the customer against 123onsite shall be excluded, unless there is a simple negligent breach of an essential contractual obligation (cardinal obligation) In this case, the liability of 123onsite shall be limited to the foreseeable damage typical of the contract. An essential contractual obligation in this sense is one whose fulfillment is essential for the proper execution of the contract, whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the customer regularly relies and may rely.

 

19.3 The above exclusions and limitations of liability shall not apply in the event of liability for culpable injury to life, limb or health, nor in the event of liability for fraudulent concealment of a defect, nor in the event of liability for non-fulfillment of a guarantee of quality (Section 444 BGB), nor in the event of liability under the Product Liability Act.

 

19.4 If it is necessary to restore data or components (such as hardware, software, etc.), 123onsite shall only be liable for the expenditure required for the restoration in the event of proper data backup and failure precautions by the customer. In the event of slight negligence on the part of 123onsite, this liability shall only apply if the customer has carried out data backups and failure precautions appropriate to the type of data and components prior to the incident. This shall not apply if this has been contractually agreed as a service on the part of 123onsite.

 

19.5 123onsite assumes no liability for sample/demo data provided with software, in particular not for work results obtained on the basis of the data.

 

19.6 The above provisions shall also apply in favor of the legal representatives, employees or vicarious agents of 123onsite.

 

20 Artificial intelligence

 

20.1 123onsite is free to use and deploy AI tools (machine learning or artificial intelligence tools) in the provision of services. 123onsite makes no warranty, express or implied, as to the sources on which any AI tool used or deployed has been trained, including their ethical and lawful nature. In addition, 123onsite makes no warranty as to the results produced by any AI tool, including the quality, appearance and content of the results, ease of use, compliance with applicable regulations, compliance with industry standards (e.g. structural integrity) and non-infringement of copyrights. Despite careful development and implementation, errors may occur in the use of AI tools and 123onsite does not guarantee any specific results from the use or provision of the AI tool.

 

20.2 123onsite is not liable for decisions made by users based on the information provided by AI tools. It is the user’s responsibility to evaluate the context and reliability of the information provided by AI tools and to use it accordingly.

 

20.3 123onsite uses AI technologies in its products and services, in some cases also from third-party providers, to improve functionality, user-friendliness and performance. This includes, among other things, the analysis of user behavior, the optimization of processes and the provision of AI-supported auxiliary functions. By using the software or services, the customer agrees that 123onsite may use the data generated and entered in the process to improve its products and services, to further develop and train the AI systems and for other business purposes. 123onsite undertakes to anonymize all personal data before use. In addition, all business-sensitive information is removed by special filter mechanisms to ensure that no business secrets are passed on or used The anonymized and filtered data can be used free of charge and even after termination of the contractual relationship.

 

21 Force majeure

21.1 “Force Majeure” means the occurrence of an event or circumstance which prevents a party from fulfilling one or more of its contractual obligations under the Contract if and to the extent that such party proves that

{a} such an obstacle is beyond its reasonable control; and

{b} it was not reasonably foreseeable at the time the contract was concluded; and

{c} the effects of the obstacle could not reasonably have been avoided or overcome by the party concerned.

 

21.2 In the absence of proof to the contrary, the following events shall be deemed to fulfill conditions (a) and (b) of paragraph 1 , part A : (i) war (declared or undeclared), hostilities, invasions, acts of foreign enemies, extensive military mobilizations; (ii) civil war, riot, rebellion and revolution, usurpation, insurrection, terrorist acts, sabotage or piracy; (iii) currency and trade restrictions, embargo, sanctions; (iv) lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalization; (v) plague, epidemic, pandemic, natural disasters or extreme natural events; (vi) explosion, fire, destruction of equipment or facilities, prolonged breakdown of transportation, telecommunications, information systems or energy; (vii) general labor unrest such as boycott, strike and lockout, slowdown, occupation of factories and buildings.

 

21.3 A party who successfully invokes this clause shall be released from its obligation to perform its obligations under the contract and from any liability for damages or any other contractual remedy for breach of contract from the time when the impediment causes the inability to perform, provided that notice is given without delay. If notice is not given promptly, the release shall take effect from the time the notice is received by the other party. If the effect of the asserted impediment or event is temporary, the above consequences shall only apply for as long as the asserted impediment hinders the performance of the affected party.

 

21.4 If the duration of the impediment invoked has the effect of substantially depriving the parties of what they could reasonably expect under the contract, either party shall have the right to terminate the contract by giving notice to the other party within a reasonable period of time.

 

21.5 If the impediment lasts longer than three months, both parties shall be entitled to terminate the contract in whole or in part within a reasonable period of time without being obliged to pay damages, whereby 123onsite shall be entitled to claim pro rata remuneration if it has fulfilled part of its obligations before or after the start of the event.

 

21.6 123onsite may also invoke force majeure if this begins after 123onsite is in default with the fulfillment of its obligations.

 

22. secrecy

 

22.1 Neither party shall disclose Confidential Information received from the other party to any third party without authorization or use it for any purpose other than (a) the purpose for which the Confidential Information was provided and/or (b) the performance of its obligations or exercise of its rights under the Contract. Third parties shall not include affiliates of 123onsite and its and their directors, employees, agents, subcontractors and professional advisors if they need to know them for the performance of the contract.

 

22.2 Both parties shall take all reasonable measures to ensure that they fulfill their confidentiality obligations and to ensure that their employees and the third parties commissioned by them comply with these obligations.

 

22.3 A duty of confidentiality does not apply to information or data that (a) was already in the lawful possession of or known to the receiving party; (b) was independently developed by the receiving party without using information or data from the disclosing party; (c) is or becomes publicly known or available; (d) is disclosed to the receiving party by a third party without, to the knowledge of the receiving party, a breach of confidentiality; or (e) if and to the extent a party is required by law or the decision of a court or administrative authority to disclose and/or inform about the Confidential Information.

 

22.4 The receiving party shall refrain from commercially exploiting or imitating the Confidential Information itself in any way outside the Purpose (in particular by means of “reverse engineering”) or having it exploited or imitated by third parties and in particular from applying for industrial property rights – in particular trademarks, designs, patents or utility models – to the Confidential Information.

 

23. data protection

23.1 The statutory provisions on data protection and data security must be observed by both parties.

 

23.2 In the event that 123onsite processes personal data for the Customer for the purpose of providing the contractual services by way of commissioned processing in accordance with instructions (Art. 28 GDPR), the parties shall enter into an

“Contract for commissioned processing” in accordance with Art. 28 GDPR or in accordance with the legal requirements to be imposed on this in the future.

 

23.3 The customer shall ensure that he has acquired all necessary authorizations, consents and powers of attorney required for the processing of personal data by 123onsite, whereby 123onsite shall not be responsible or liable to the customer for the acquisition of such authorizations, consents or powers of attorney. The customer warrants that it will process its personal data in accordance with applicable laws, regulations and codes of conduct.

 

23.4 The 123onsite software products may include third-party software and/or other 123onsite software products By granting third-party software and/or another 123onsite software product access to the Customer’s data, the Customer consents to the use of his data within the scope of the described functionality and the General Terms and Conditions/License Conditions of the third party and/or the Special Terms and Conditions that apply to other 123onsite software products.

 

23.5 123onsite is entitled to create anonymized and/or aggregated data sets from the personal data collected. This is done by removing or modifying information that would make it possible to identify individual persons.

 

23.6 The software products and services and the associated personal data are hosted in data centers located exclusively within the European Economic Area (EEA) or in Switzerland. This applies to all offers provided in the SaaS license model.

 

23.7 Upon conclusion of the contract, the customer agrees that 123onsites may pass on contract-relevant data (e.g. contact data, customer data such as decision-makers, sales history, sales prices and conditions) to affiliated companies, both for the fulfillment of the contract and for offers of software products and services of the Nemetschek Group. The customer agrees that this data may also be used for marketing purposes by telephone, e-mail and post. The customer confirms that it has the necessary consent of third parties (e.g. employees) in accordance with applicable laws (e.g. data protection laws, UWG). Consent can be revoked at any time at datenschutz@nevaris.com.

 

23.8 Data protection information can be found on the 123onsite homepage at https://www.nevaris.com/datenschutz/.

 

23.9 The current affiliated companies of the Nemetschek Group can be viewed in the annual report at https://ir.nemetschek.com/bericht/.

 

24. other

24.1 The customer shall be responsible for observing any import and export regulations applicable to the services. In the case of cross-border services, the customer shall bear any customs duties, fees and other charges incurred. The customer shall handle legal or official procedures in connection with cross-border services on its own responsibility, unless expressly agreed otherwise.

 

24.2 The customer may not assign the rights and obligations incumbent upon it under this contract in whole or in part without the prior written consent of 123onsite.

 

24.3 The place of performance for all obligations arising from the contract shall be the registered office of 123onsite.

 

24.4 Should individual provisions of these General Terms and Conditions be invalid or lose their validity due to a circumstance occurring at a later date, the validity of the remaining provisions shall remain unaffected. The invalid provisions shall be replaced by provisions that come closest to what the contracting parties would have wanted if they had considered the point in question. The same applies to loopholes in the terms and conditions.

 

24.5 With regard to all legal relationships arising from this contractual relationship (including the conclusion and negotiation of contracts), the parties agree that the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and private international law.

 

24.6 The place of jurisdiction shall be the competent court at the registered office of 123onsite. However, 123onsite shall also be entitled to bring an action at the customer’s registered office.

 

Part B – License terms (purchase and rental/SaaS)

 

1. general

1.1 The following Special License Terms (purchase and rental/SaaS) apply to all software products to be supplied to customers by 123onsite and made available for use.

 

2 Subject matter of the agreement

2.1 The software is licensed according to various licensing models (e.g. license purchase or license rental, license rental in the form of SaaS), depending on the scope of the license and its chargeability. The relevant license model is specified in the license agreement.

 

2.2 The subject matter of the license agreement is the permanent (in the case of a license rental and SaaS, limited to the term of the license agreement) provision of the software specified therein, including the associated user manual/online help and the granting of the rights of use described in Section 5 Part B . In the case of SaaS, the software is provided in its current Tier via an Internet connection. The transfer point for the services is the router output of the data center used by 123onsite to the Internet. 123onsite reserves the right to update the software regularly in order to ensure that the software is up-to-date and accurate.

 

2.3 All rights to the source code of the software are vested exclusively in 123onsite. The customer has no claim to access or surrender of the source code.

 

2.4 The product description is conclusively authoritative for the quality of the functionality of the software supplied by 123onsite. In the case of SaaS , the current version of the product description shall apply. The information contained therein is to be understood as performance descriptions and quality agreements and not as

 

2.5 123onsite does not owe any further quality of the software (such as, for example, that it meets objective requirements). In particular, the customer cannot derive such an obligation from other representations of the software in public statements or in the advertising of 123onsite, unless 123onsite has expressly confirmed the additional quality in writing (written form in accordance with 126 BGB is required; Section 2.4 Part A shall not apply in this respect). Guarantees require express written confirmation (written form in accordance with Section 126 BGB is required; Section 2.4 Part A does not apply in this respect) by the management of 123onsite.

 

2.6 123onsites may provide the customer with the user manual either in writing, electronically, on a data carrier, within the respective product or online.

 

2.7 The customer has informed himself about the essential functional features of the software and bears the risk as to whether it meets his wishes and requirements. He must seek advice on any questions of doubt before concluding the contract. The technical system requirements of the software (e.g. with regard to database, operating system, hardware and data carrier) are part of the license agreement and will be communicated by 123onsites on request.

 

2.8 License purchase and license rental: The customer is ultimately responsible for the correct installation of the software in his client-server environment. At the customer’s request, 123onsite shall support the customer in the installation of the software at the prices applicable at 123onsite at that time and on the basis of licenses to be ordered separately.

 

2.9 Availability for SaaS: 123onsite shall provide the contractual services with an availability of 99%. This availability is calculated on the basis of the time allotted to the respective calendar year in the contractual period minus the following

defined maintenance work.

 

2.10 123onsite is entitled to temporarily suspend or restrict the availability of the contractual service outside the operating hours (hereinafter referred to as “down times”) in order to carry out maintenance work or improvements to the software. Operating hours are all working days Monday to Friday – with the exception of public holidays at the headquarters of 123onsite – from 9.00 a.m. to 5.00 p.m. CET.

 

2.11 However, the down times within the maintenance window may not exceed ten hours per month. Every quarter of an hour or part thereof is counted as a whole hour.

The period from the occurrence of the unavailability of the services within the agreed operating time until the end of the unavailability is defined as unplanned downtime.

When determining availability, such downtimes are not taken into account that

2. (a) 123onsite is not responsible, in particular impairments caused by failures and/or malfunctions of technical systems and/or network components outside the area of responsibility of 123onsite; in particular failures caused by improper use of software or hardware by the customer;
4. (b) maintenance work agreed with the customer or unforeseen maintenance work for which 123onsite is not responsible
6. 2.12 If 123onsite uses a third-party provider/third-party software (see definition in Section 1 Part A) to provide the contractual services, the license or usage provisions agreed with this third-party provider (or for this third-party software) shall apply. In the event of contradictions, these provisions of the third-party provider/third-party provider software shall take precedence over these GTC.

 

3. demarcation

 

3.1 The following services are not part of the license agreement and must be agreed separately:

• Consulting (processes, analysis of connections or existing processes, etc.)
• Support with the installation of the software
• Training in the software
• Support with data migration or conversion
• Support with the parameterization of the software
• Project coordination, project documentation

 

3.2 Maintenance and support of the software

 

(a) License Purchase Software maintenance and support is not part of the service in a license agreement of the License Purchase model and must be agreed separately via a maintenance and support agreement. In this respect, the Special Provisions Maintenance and Support of these GTC apply (see Part D).

 

3.3 Termination of the Maintenance and Support Agreement shall not affect the License Agreement in the License Purchase model.

 

(b) License rental and SaaS: In the case of a license agreement of the license rental model, software maintenance and support is part of the service offer. In this respect, the Special Provisions Maintenance and Support of these GTC apply (see Part D). The agreement on software maintenance and support can only be terminated at the same time as the termination of the license agreement. Upon termination of the license agreement, the agreement for software maintenance and support also ends automatically.

 

4. provisions for work services

4.1 The provision of standard software for use and the rendering of services shall not be deemed to be a contract for work and services. Insofar as 123onsite provides work services in accordance with the contract of a separate written agreement, if applicable, or the parties expressly agree on work services for other services, the provisions of Part E “Provisions for Customer-Specific Software Customization” shall apply to these services with priority and/or in addition.

 

5. right of use

 

5.1 Rights of use

 

(a) License Purchase: 123onsite grants the customer, subject to the condition precedent of final and full payment of the purchase price, the non-exclusive, non-transferable and non-sublicensable right to use the software and documentation in accordance with the terms of the license agreement.

 

(b) License rental and SaaS: 123onsite grants the customer the non-exclusive, non-transferable, non-sublicensable right to use the software and documentation in accordance with the terms of the license agreement for the term of the license agreement in return for payment of the license (rental) fees.

 

5.2 The customer warrants that it will use the software for its own business purposes and exclusively in the exercise of its commercial activity.

 

5.3 The customer acknowledges the copyrightability of the software and the user manual. Furthermore, the customer recognizes the software as a trade secret of 123onsite.

 

5.4 Machine license: The customer is only entitled to use the software on the number of clients agreed in the license agreement (single-user application). Simultaneous storage, keeping in stock or use of a license on more than one client is not permitted. Use of the software within a network or other client-server environment is only permitted if this does not create the possibility of simultaneous multiple use of the software.

 

5.5 Concurrent User (pay-per-use): Concurrent user licenses grant the customer the right to use the software for a group of users. The maximum number of users who may access the software at the same time is specified in the license agreement (license quantity).

 

5.6 The agreed license quantity must be complied with. Use of the software within a network or via remote data transmission is permitted if this does not exceed the agreed license quantity. Installation of the software is also permitted on a number of clients that exceeds the agreed license quantity as long as care is taken to ensure that the agreed license quantity is not exceeded.

 

5.7 It may first be necessary to log out an active user so that another employee can gain access. In principle, any number of users can be created in the software, but simultaneous use of the software is limited by the license quantity.

 

5.8 Named User (pay-per-license): A named user license gives the customer the right to use the software for an exact number of registered users. The number of defined users who may access the software is specified in the license agreement. Defined users receive their own access data that allows them to access the software. Passing on the access data to non-defined users is not permitted.

 

5.9 The customer shall owe a license fee for each component of the software for which a right of use is granted in accordance with the license agreement. The license fee is due regardless of whether the customer uses the component of the software.

 

6. revocation of the right of use

6.1 123onsite may revoke the customer’s right of use and/or terminate the contract if the customer significantly exceeds his rights of use or significantly violates the right of use (in accordance with Section 5 Part B) or instructions for use (in accordance with Section 7 Part B) or decompilation (in accordance with Section 12 Part B). 123onsite shall grant the customer a grace period in writing to remedy the situation. In the event of recurrence and in special circumstances which justify immediate revocation after weighing up the interests of both parties, 123onsite may declare revocation without setting a deadline.

 

6.2 The sole revocation of the right of use shall not simultaneously constitute termination of the license rental agreement.

 

6.3 The customer shall confirm the cessation of use to 123onsite in writing after revocation. The claim of 123onsite to remuneration for use exceeding the agreed use shall remain unaffected. 123onsite shall grant the customer the right of use again after the customer has demonstrated and assured 123onsite in writing that there are no longer any infringements of the right of use or obligations and that previous infringements and their consequences have been eliminated.

 

7. instructions for use

7.1 The customer is obliged to use the software properly in compliance with the provisions of the license agreement and the user manual. Notwithstanding the provisions of these GTC, the customer is prohibited from copying, reproducing, translating, adapting, analyzing, decompiling, recreating, modifying, reconstructing, duplicating or otherwise modifying the software and/or the user manual in any way, in whole or in part, without the express prior written consent of 123onsite.

 

7.2 The customer may make a copy for backup purposes (backup for recovery) and, in the case of a licensed test environment, to create this test environment. In principle, only one single backup copy may be made and stored. If several backup copies are created on the basis of a multi-generation backup, the entirety of these backup copies shall be deemed one copy. This backup copy must be labeled as such for the software provided. The backup copies may only be used for purely archival purposes and only as a replacement for the original software that can no longer be used.

 

7.3 Editing (extension, modification etc.) of the content is only permitted within the scope and extent of the license agreement. All results arising from such editing, extensions or adaptations, including any new content resulting therefrom, shall remain the intellectual property of 123onsite. The customer is granted a right of use to these results within the scope of the original license agreement.

 

7.4 If the customer violates the right of use (in accordance with Section 5 Part B) and/or the instructions for use (in accordance with Section 7 Part B), the parties agree that the customer shall pay 123onsite a contractual penalty of an appropriate amount, irrespective of fault, whereby 123onsite shall determine the amount at its reasonable discretion within the meaning of Section 315 BGB and the appropriateness of the contractual penalty may be reviewed by the competent court in the event of a dispute. The right to claim further damages remains reserved. 123onsite shall set the customer a reasonable grace period for remedial action beforehand. In the event of recurrence and in special circumstances which justify an immediate contractual penalty after weighing up the interests of both parties, 123onsite may claim the contractual penalty without setting a deadline.

 

7.5 In addition, 123onsite may revoke the customer’s right of use in accordance with the provisions of Section 6 Part B .

 

8. term and termination for license rental and SaaS

8.1 The commencement of the license agreement as well as the term and termination options are set out in the license agreement. If no commencement date has been agreed in an individual case, the license agreement shall commence on the first or fifteenth day of a month following delivery of the software. If no term and termination has been agreed in an individual case, the license agreement is concluded for an indefinite period and may be terminated by either party with a notice period of 1 (one) day to the end of each calendar month.

 

8.2 The license agreement may be terminated for good cause without observing a notice period 123onsite shall be entitled to terminate the agreement without notice for good cause, in particular in the event of copyright infringements by the customer and in the event of persistent default in payment by the customer. Termination by the customer pursuant to § 543 para. 2 sentence 1 no. 1 BGB (German Civil Code) for failure to grant use in accordance with the contract is only permissible if 123onsite has been given sufficient opportunity to remedy the defect and this has failed.

 

8.3 In the event of termination, the customer must cease using the software and remove all installed copies of the program from his client-server environment and, at 123onsite’s discretion, immediately return any backup copies made or destroy them.

 

9. remuneration for license rental and SaaS

 

9.1 The rental fee is based on the license agreement and includes the remuneration for the provision of the software and its maintenance in accordance with the contract.

 

9.2 Unless otherwise agreed, the rent is due annually in advance 14 days after invoicing.

 

9.3 If the license agreement is not concluded on the first day of a calendar month, the rent to be paid for the first month shall be calculated pro rata according to the remaining days of the month, starting on the day following the provision of the software.

 

10. price adjustment for license rental and SaaS

10.1 123onsite is entitled to adjust the amount of the remuneration to which it is entitled annually on 01. This adjustment shall be announced by e-mail and/or by other means, for example via the customer portal.

 

10.2 The customer expressly agrees to an annual adjustment if this (maximum) keeps pace with the consumer price index for Germany officially determined by the Federal Statistical Office (based on the last base year determined prior to conclusion of the contract = 100 points).

 

10.3 In addition, 123onsite shall be entitled to adjust the amount of the remuneration to which it is entitled if and insofar as the purchase price of a third-party software/service changes for 123onsite. However, only to the extent that the price change of the respective third-party software/service has a proportionate effect on the price of the software or service.

 

10.4 In the event of price increases that (i) exceed the price index or (ii) in the event of a price increase due to an increase in the subscription price for third-party software/services, the customer may terminate the corresponding agreement by written notice to 123onsite within two (2) weeks of the announcement of the price increase to the end of the calendar year. If the customer does not respond to an announced price increase within a period of two (2) weeks, the new price conditions of 123onsite shall be deemed to have been accepted by the customer.

 

11. system requirements

 

11.1 The customer must ensure that the customer’s own hardware and software and the server-client environment (in particular operating systems, network etc.) used for the use of the software products and services of 123onsite meet the technical requirements of 123onsite which are necessary for the proper use of the software. The corresponding system requirements shall be made available to the customer on request.

 

11.2 123onsite may require the customer to adapt his client-server environment to the new system requirements indicated by 123onsite in connection with additional features or higher requirements of an update. If the customer does not comply with these new system requirements and nevertheless installs an update of the software, 123onsite shall not be liable for any resulting damage.

 

12. decompilation

 

12.1 The retranslation of the software code provided into other code forms (decompilation) and other types of reverse engineering of the various production stages of the software are not permitted. The interface information required for the purpose of establishing interoperability with third-party software can be requested from 123onsite. If it is not a standard interface, the interface information shall be provided against reimbursement of a cost contribution. 123onsite reserves the right to obtain comprehensible proof of the necessity of obtaining the information from the customer.

 

12.2 The actions necessary to establish interoperability may only be entrusted to third parties who are in an actual or potential competitive relationship with 123onsite if 123onsite does not wish to carry out the desired actions in return for payment. 123onsite must be granted a sufficient period of time (which may not be less than 30 days) to examine the acceptance of the order and must be informed of the name of the third party. In the context of establishing interoperability, the permanent removal of 123onsite’s trademarks or brands from the software or any accompanying material is not permitted. If removal is nevertheless unavoidable, the original condition must be restored immediately or, if this is not possible, a condition as close as possible to the original condition must be restored.

 

13. group company licenses

13.1 A customer belonging to a group of affiliated companies is entitled to purchase or lease licenses for other companies in the group. It is permitted – subject to the procedure in Clause 2 and 13.3 Part B – to make such licenses available to Authorized Companies (as defined below in Clause 13.3 Part B ) by granting a sublicense to these Authorized Companies in deviation from Clause 5.1 Part B to the same extent as defined in Clause 5 Part B .

 

13.2 A customer who wishes to grant the use of sublicenses to an affiliated company shall demonstrate to 123onsite in advance in writing and in an appropriate manner that the affiliated company meets the requirements set out under “Definition” in Part A .

 

13.3 123onsite shall confirm in writing the affiliated company as an authorized company within the meaning of these GTC after the information in accordance with Section 2 Part B has been provided. The customer shall remain the sole contractual partner of 123onsite.

 

13.4 The Customer shall obligate the Authorized Company by appropriate contractual measures to comply with all obligations arising from these GTC as if the Authorized Company itself were the Customer.

 

13.5 The Authorized Company and the Customer shall be jointly and severally liable for obligations arising from the contract with the Customer (with regard to services to the Authorized Company).

 

13.6 This right of use of the Authorized Companies is subject to the condition subsequent that the aforementioned criteria for the Authorized Company are no longer met.

 

13.7 The licenses may only be used within other business combinations by the customer (= license holder) itself (or its employees) and within the scope of the license agreement. Transferring access to the software or otherwise passing on the license to third parties is also not permitted within these corporate groups.

 

14 Obligations of the customer to cooperate

14.1 The customer shall ensure that expert staff are available to support 123onsite and the use of the software at the latest at the time of delivery. The contact persons shall be trained in the software and have experience in using the software.

 

15. data backup with SaaS

 

15.1 123onsite regularly backs up the customer’s data on the server for which 123onsite is responsible. The customer may extract this data at any time for backup purposes (e.g. as an Excel export), insofar as this is technically possible, and is obliged to do so at regular, customary intervals.

 

15.2 The data collected, processed and generated by the software is stored on the servers of the data center. The customer remains the sole owner of the data in all cases and can export individual or all data independently at any time using an export function. After termination or termination of the contract, the data will be stored for at least 4 weeks. The customer is not entitled to receive the software suitable for using the data.

 

16. warranty

16.1 Claim for defects

 

(a) License purchase: 123onsite warrants to the customer the condition of the software as specified in the license agreement and/or as agreed in the product description.

 

(b) Rental license and SaaS: 123onsites shall provide the software to the customer in a condition suitable for contractual use in accordance with Section 535 (1) sentence 2 BGB and shall maintain it in this condition during the rental period.

 

16.2 In the event of proven material defects, 123onsite shall initially provide warranty through subsequent performance in such a way that 123onsite shall, at its discretion, either provide the customer with defect-free software (replacement delivery) or remedy the defect (rectification). As part of the replacement delivery, the customer shall, if necessary, accept a new version of the software if the contractual scope of functions is retained and this does not lead to unreasonable impairments for the customer.

 

16.3 The defect can also be remedied by naming a workaround for the defect (workaround) or sufficient instructions for remedying the defect.

 

16.4 A rectification of defects through the delivery of updates and new version deliveries shall not give rise to a new liability for defects for the entire software product. A new liability for defects shall only arise with regard to the new features of the updates or new version delivery compared to the previous one

 

16.5 The customer shall support 123onsite without restriction in the search for defects. In particular, the customer is obliged to observe the symptoms that have occurred as well as the software and hardware environment in accordance with 123onsite’s specifications and to describe the defects in the best possible way so that they can be reproduced. In addition, the customer is obliged to provide 123onsite with all documents and information in text form that 123onsite requires to assess and rectify the defect to a reasonable extent.

16.6 The defect evaluation shall take place at the headquarters of 123onsite. 123onsite shall be entitled to process the defect by means of remote maintenance (remote access) and the customer shall grant 123onsite access to its client-server environment and the installed software for this purpose, either directly or by means of remote data transmission. If this support is refused, 123onsite shall not be obliged to further investigate or rectify the defect.

 

16.7 Failure of subsequent performance

 

(a) License purchase: If 123onsite refuses subsequent performance or if subsequent performance finally fails or is unreasonable for 123onsite, the customer shall be entitled to a reduction in the purchase price or rescission of the contract and/or – within the scope of Section 19 Part A – to compensation for damages or expenses, subject to the statutory requirements.

In the event of rescission of the contract, the customer is obliged to send all copies of the software including any original data carriers, including any modified copies, to 123onsite or to destroy them at 123onsite’s request.

 

(b) License rental and SaaS: If 123onsite refuses subsequent performance or if subsequent performance finally fails or is unreasonable for 123onsite, the customer shall be entitled to a reduction in the rent or extraordinary termination of the contract under the statutory conditions and/or – within the scope of Section 19 Part A – a claim for damages or compensation.

 

16.8 The declaration of withdrawal, reduction or termination must be made in writing to 123onsite.

 

16.9 Claims of the customer that go beyond subsequent performance, the right of withdrawal, termination and reduction, in particular compensation for damages or expenses, including loss of profit or due to other financial losses of the customer, shall only exist to the extent of the liability provisions (see Section 19 Part A) in these GTC.

 

16.10 Defects of title

In the event of defects of title, 123onsite may, at its own discretion and expense: (a) procure for the customer the right to continue using the software in accordance with these GTC; (b) replace or adapt the software in such a way that there is no longer any infringement, provided that its functionalities remain essentially unchanged; or (c) if options (a) and (b) cannot be reasonably implemented in the opinion of 123onsite, terminate the contract with the customer, including the rights granted therein in respect of the infringing software products.

 

17. exclusion of liability for defects

 

17.1 Rental license and SaaS: Strict liability for defects already existing at the time of conclusion of the contract pursuant to Section 536a (1) BGB is excluded. The customer shall not be entitled to rectify defects himself at his own expense (Section 536a (2) BGB).

 

17.2 Insofar as the software supplied by 123onsite contains data collections, in particular prices, measured values and information on sizes and quantities, this data is non-binding sample data for which there is no claim to correctness and/or completeness. Incorrect data therefore does not constitute a defect and does not entitle the customer to rectification of defects.

 

17.3 The customer’s claim to rectification of defects is excluded if the defect is not reproducible or cannot be demonstrated on the basis of machine-generated output.

 

17.4 If the defects that have occurred are due to circumstances for which 123onsite is not responsible, the liability for defects shall lapse. This shall apply, for example, in the event of faults resulting from the use of unsuitable operating material (e.g. hardware, operating system, etc.) or if the customer has not complied with the system requirements. 123onsite is not obliged to convert software to other operating systems, another hardware system or another programming language. The risk of incompatibility of the software with the software or hardware used by the customer shall not be borne by 123onsite.

 

17.5 Liability for defects shall not apply if a defect is attributable to conduct or intervention by the customer, unless the conduct or intervention is not the cause of the defect, i.e. the defect would have occurred even without this conduct or intervention.

This includes in particular (a) improper use, maintenance, repair or modification of the software which was not carried out by 123onsite but by the customer or a third party, or (b) the use of the software supplied by 123onsite on hardware for which the software is not suitable in accordance with the product description and the user manual and/or system requirements, or (c) improper installation by the customer or a third party, unauthorized, operating system components as well as interfaces and parameters, use of unsuitable operating material and data carriers, or (d) interventions by the customer or a third party which override the technical test mechanisms and rules defined in the software or which create, change or delete data stored in the database via direct database access (“manipulation”) (e) changes to the parameterization by the customer or a third party outside the intended use of the software (i.e. which affect the system behavior in an undesirable way).i.e. which undesirably influence the system behavior).

 

17.6 Any contributory negligence on the part of the customer shall be attributed to the customer.

 

17.7 The customer shall bear the burden of proof that the defect is not attributable to any conduct or intervention by the customer and that it would have occurred even without such conduct or intervention.

 

17.8 Any liability for defects shall be excluded if the customer has not fulfilled its obligations to inspect and give notice of defects in accordance with Section 11 Part A

 

17.9 The customer is not entitled to withhold full payment due to a defect. Despite a defect, the customer shall be obliged to make payment in an amount appropriate to the value of the defective service. Until this reasonable payment has been made, 123onsites may withhold subsequent performance.

 

17.10 If 123onsite provides services in the search for or processing of defects without being obliged to do so, 123onsite may demand remuneration in accordance with the prices of 123onsite applicable at the time of the services. This shall apply in particular if a reported defect cannot be proven, cannot be attributed to 123onsite or the liability for defects ceases to apply for any other reason.

 

17.11 In particular, the additional expenditure incurred by 123onsite in the processing of defects due to the fact that the customer does not properly fulfill his obligations to cooperate, makes the search for defects more difficult or operates the software improperly shall also be remunerated.

 

18. statute of limitations

18.1 The limitation period for claims for defects is 12 months calculated from the start of the statutory limitation period.

 

18.2 The shortening of the limitation period shall not apply in the event of intent or gross negligence on the part of 123onsite, fraudulent concealment of the defect, personal injury (injury to life, limb and health) or in the event of the assumption of a guarantee or liability under the Product Liability Act.

 

18.3 The processing of a notice of defect by the customer by 123onsites shall only lead to the suspension of the limitation period insofar as the statutory requirements for this are met. This shall not result in a recommencement of the limitation period.

 

18.4 Subsequent performance (replacement delivery or rectification) can only affect the limitation period of the defect triggering the subsequent performance.

 

In addition to these Special Provisions “Part B License Terms (Purchase and Rental/SaaS)”, the General Provisions “Part A – General Provisions” apply.

 

Part C – Provisions for consulting services

 

1. general

1.1 The following Special Terms and Conditions for Consulting Services shall apply to all services provided by 123onsite for customers.

 

2 Subject matter of the agreement

2.1 In these Special Terms and Conditions, “Consulting Services” means consulting services that relate, among other things, to project management, installation, parameterization, integration of the customer’s processes, workshops and training of the customer in the operation of the software.

 

2.2 123onsites shall provide the consulting services in accordance with the terms and conditions agreed in the consulting services agreement and subsequently in return for the contractually agreed remuneration. The customer bears the responsibility for the project and its success and 123onsite assumes no production risk.

 

2.3 The subject matter of the contract may consist of a one-off service, which may also be provided in parts, or may be of a permanent nature

 

3. implementation of the consultation

 

3.1 123onsites shall determine the manner in which the service is provided at its own discretion, unless otherwise agreed.

 

3.2 123onsite shall provide the service through suitable employees. Even if the customer has concluded the agreement with a view to performance by a specific person, 123onsite shall always be entitled to replace this person with one or more other persons with comparable qualifications.

 

3.3 The customer is not authorized to issue instructions to the employees of 123onsite involved in the provision of services.

 

3.4 If it has been agreed that the consultancy services will be provided in phases, 123onsite shall be entitled to postpone the start of the services forming part of a next phase until the customer has approved the results of the previous phase in writing.

 

3.5 If the customer wishes to make use of consulting services, he must contact 123onsite for this purpose at least 14 days before the desired service date. 123onsite shall then take the customer’s desired schedule into account as far as possible in its planning for the consulting services. 123onsite neither owes nor guarantees compliance with the schedule requested by the customer.

 

4. remuneration

4.1 The calculation of a consulting service is based on the service rates of a placed order or the order confirmation.

 

4.2 Invoicing shall be based on actual expenditure and plus travel expenses as set out in Section 6 Part C .

 

4.3 On-site billing appointment:

The minimum charge for on-site appointments is six (6) hours plus the travel costs agreed in the offer or order confirmation. Each additional hour or part thereof shall be invoiced at the extended hourly rate. Invoicing shall be based on hours commenced.

 

4.4 Billing for remote services:

Remote services are charged per hour or part thereof, plus a lump sum for set-up time, in accordance with the quotation or order confirmation

 

4.5 Set-up time for remote services:

A flat-rate set-up time is generally charged for services provided remotely. The set-up time includes the technical preparation/post-processing, e.g:

• Set up remote maintenance session

• Collect access codes
• Compile documents/ tools/ downloads
• Arrange appointments, coordinate requirements
• License organization and verification

 

4.6 Travel expenses:

Travel expenses are made up of travel time, travel costs and accommodation costs. Travel time is the time required by the 123onsite employee to travel from his place of residence / place of work to the place of performance. Travel time shall be remunerated at the agreed hourly rate. Travel costs for all means of transportation as well as accommodation costs shall be charged according to expenditure and receipts or according to travel expense flat rates.

 

4.7 Allowances:

Outside the 123onsite service times (in accordance with “Definitions” Part A) and on Saturdays, a surcharge of 50% shall be added to the service rates of an order placed or order confirmation, and 100% on Sundays and public holidays.

 

4.8 Participants:

In the case of a service which is an event with participants, the daily rate/hourly rate applies for a maximum number of five participants on the part of the customer. From the sixth participant onwards, a separate charge will be made in accordance with the respective service agreement.

 

5. price adjustment for continuing obligations

5.1 123onsite shall be entitled to adjust the amount of the remuneration to which it is entitled annually on January 1. This adjustment shall be announced by e-mail and/or by other means, for example via the customer portal.

 

5.2 The customer expressly agrees to an annual adjustment if this (at most) keeps pace with the consumer price index for Germany officially determined by the Federal Statistical Office (based on the last base year determined before the contract was concluded = 100 points).

 

5.3 In addition, 123onsite shall be entitled to adjust the amount of the remuneration to which it is entitled if and insofar as the purchase price of a third-party software/service changes for 123onsite. However, only to the extent that the price change of the respective third-party software/service has a proportionate effect on the price of the software or service.

 

5.4 In the event of price increases that (i) exceed the price index or (ii) in the event of a price increase due to an increase in the subscription price for third-party software/services, the customer may terminate the corresponding agreement by notifying 123onsite in writing within two (2) weeks of notification of the price increase with effect from the end of the calendar year. If the customer does not respond to an announced price increase within a period of two (2) weeks, the new price conditions of 123onsite shall be deemed to have been accepted by the customer.

 

6. appointments

6.1 Appointments for the service are generally made when the customer accepts the offer. In exceptional cases, appointments can also be made verbally in advance. In this case, the customer shall receive a written confirmation of the appointment. If the customer does not object to this within one working day, the appointment shall be deemed to have been accepted and bindingly commissioned.

 

7. cost estimates

7.1 In the event that 123onsite provides the customer with a cost estimate of the consulting services expected to be required in the service agreement, the following provisions shall apply.

 

7.2 The estimates are based on 123onsite’s experience and depend on various factors (e.g. qualifications and IT experience of the employees to be trained, complexity of the existing IT infrastructure, level of detail of the processes to be mapped, etc.). The cost estimate is non-binding and 123onsite does not guarantee the accuracy of the estimate.

 

7.3 This is neither a fixed price nor a maximum price agreement, but a cost estimate within the meaning of Section 649 BGB.

 

7.4 If it becomes apparent that the cost estimate will be significantly exceeded, 123onsites shall inform the customer in good time.

 

7.5 An extension of the scope of services at the request of the customer or a cost increase due to official, legal requirements are irrelevant for the assessment of whether a significant overrun has occurred.

 

7.6 Insignificant overruns shall be remunerated by the customer to 123onsite in accordance with the contract.

 

8 Obligation of the customer to cooperate

8.1 The customer warrants that the client-server environment and the software used for the services meet the system requirements. If it transpires at the start of the consulting services that this is not the case, 123onsite shall be entitled to charge for the consulting days or hours on which the consulting services could not be adequately provided because the customer’s client-server environment did not meet the system requirements, or (at 123onsite’s discretion) to charge for the costs incurred by 123onsite in order to make the client-server environment operational in accordance with the system requirements.

 

8.2 The same shall apply if 123onsite was unable to provide the consulting services adequately due to the use of an outdated software version.

 

9. loss of services

 

9.1 123onsite may postpone or cancel a consulting service if it has to be canceled for organizational and technical reasons (e.g. due to illness of the planned employee, failure of the infrastructure, cancellation of training courses if the minimum number of participants is not reached).

 

9.2 In this respect, 123onsites shall only be liable for prompt information to the customer. Further claims are excluded.

 

9.3 If a consulting service is postponed by 123onsite, the customer shall be notified immediately and an alternative date shall be specified.

 

9.4 If the service is canceled by the customer, this is free of charge up to 14 calendar days before the start of the appointment. If the customer cancels up to seven (7) calendar days before the start of the appointment, 50% of the expected costs according to the offer/contract will be charged, plus any costs already incurred or costs that can no longer be canceled. Cancellations at short notice (less than seven (7) days) will be charged in the full amount of the expected costs according to the offer.

 

10. rights of use

 

10. 1 Unless otherwise agreed, 123onsite shall grant the customer the non-exclusive, non-transferable and non-sublicensable right to use the service results which 123onsite has provided under the contract and handed over to the customer for its own internal purposes within the scope of the contractually stipulated purpose in perpetuity.

 

10.2 In all other respects, all rights shall remain with 123onsite.

 

11. revocation of the right of use

11.1 123onsite may revoke the customer’s right of use and/or terminate the contract if the customer significantly exceeds its rights of use or significantly infringes its right of use (in accordance with Section 10 Part C) is violated. 123onsite must first set the customer a grace period in writing to remedy the situation. In the event of recurrence and in special circumstances which justify immediate revocation after weighing up the interests of both parties, 123onsite may declare revocation without setting a deadline.

11.2 The sole revocation of the right of use shall not simultaneously be deemed to be a termination of the service agreement.

11.3 The customer shall confirm the cessation of use to 123onsite in writing after revocation. The claim of 123onsite to remuneration for use exceeding the agreed use shall remain unaffected. 123onsite shall grant the customer the right of use again after the customer has demonstrated and assured 123onsite in writing that there are no longer any infringements of the right of use or obligations and that previous infringements and their consequences have been eliminated.

 

12. complaints

12.1 Complaints regarding the provision of services by 123onsite must be made by the customer in writing and without delay, but at the latest within 14 calendar days of becoming aware of the complaint, and the complaint must be described in as much detail as possible. Thereafter, the service provision shall be deemed to be in accordance with the contract.

 

13. provisions for work services

13.1 The provision of consulting services shall not constitute a contract for work and services. Insofar as 123onsite provides work services in accordance with the service agreement or any separately concluded agreement or the parties expressly agree on work services, the provisions of Part E “Customer-specific software customization” shall apply to these services with priority and in addition.

 

14. termination

 

14.1 All consulting services provided by 123onsite are temporary services. These are limited in time either by calendar or by their type, purpose or nature, unless otherwise expressly agreed in writing in individual cases.

 

14.2 Ordinary termination of the consulting service agreements is excluded before and after commencement of the service.

 

14.3 If the contract is concluded for an indefinite period, it can be terminated with a notice period of three (3) months to the end of a calendar year. This termination is possible for the first time at the end of the calendar year following the conclusion of the contract. An agreed minimum term remains unaffected by this right of termination.

 

14.4 The right to extraordinary termination for good cause remains unaffected.

 

14.5 Notice of termination must be given in writing.

 

14.6 If the customer terminates the contract or individual parts of the contract, 123onsites shall invoice all consulting services on a pro rata basis until the termination takes effect.

 

14.7 In addition, the customer shall reimburse 123onsite for those costs which 123onsite can prove to have incurred on the occasion and for the direct purpose of performing the terminated scope of services with due commercial care and which were or are no longer avoidable within the bounds of what is reasonable.

 

In addition to these Special Provisions “Part C – Provisions for Consulting Services”, the General Provisions “Part A – General Provisions” shall apply.

 

Part D – Provisions for maintenance and support

 

1. general

1.1 The customer has acquired rights of use for the 123onsite software. At the same time, he has concluded a maintenance agreement with 123onsite for the maintenance and support of this software under the conditions set out here. If the customer has concluded a license agreement in the license rental or SaaS model, the following Special Provisions shall also apply accordingly.

 

1.2TheseSpecial Terms and Conditions shall also apply to subsequent maintenance and support orders placed by the customer with 123onsite, without these having to be agreed again.

 

2 Subject matter of the agreement

2.1 Unless otherwise expressly agreed between the parties, 123onsite undertakes to provide the following consulting and support services exclusively during the term of this maintenance agreement:

• • Updates
  • Processing of the defect
  • support

 

3. updates

3.1 123onsite shall provide the customer with updated versions of the software (updates), as well as new or revised versions of the user manual belonging to the software, insofar as necessary in individual cases (e.g. if there is a significant change in the scope of functions or operation of the software). 123onsite shall determine the time and content of the updates and the updating of the user manual at its own discretion.

 

3.2 123onsite shall send the updates to the customer on a suitable data carrier or by remote data transmission (download). The customer shall install the updates on his own responsibility and at his own expense. This means that any expenses incurred by the customer in installing the updates shall be borne by the customer and shall not be reimbursed by 123onsite.

3.3 License purchase and license rental: The installation of these updates is mandatory to ensure that all customers are using the same Tier and that 123onsites can provide efficient support.

3.4 SaaS: 123onsite will make updated versions available to customers accordingly.

 

3.5 The intervals at which updates are developed are at the discretion of 123onsite. It is also at the discretion of 123onsite whether functionalities and modules of the software are retained, modified, reduced or extended.

 

4. processing of the defect

 

4.1 123onsites shall assist the customer with regard to the handling of defects in the software (defect handling). The consulting services are limited to instructions for the elimination and avoidance of defects. Defect handling comprises the localization of the cause of the defect, the diagnosis of the defect and services aimed at remedying the defect (in particular by means of bug fixes, for example).

 

4.2 Defect handling services can also be provided at 123onsite’s discretion by means of a workaround, bug fixes, updates or major updates (new Tier).

 

4.3 The processing of defects is primarily carried out by e-mail, otherwise via telephone support from 123onsite. 123onsite’s telephone support can be reached during 123onsite’s service hours (see “Definition” Part A). E-mails will only be answered within the service hours of 123onsite.

 

4.4 Within the scope of maintenance, 123onsite shall not provide an on-site service for processing defects reported by the customer. 123onsite is entitled to provide the services by means of remote maintenance or remote diagnosis.

 

4.5 The processing of defects by 123onsite shall be limited to the current release (Tier) of the software; earlier software versions shall not be taken into account with regard to the processing of defects After the development and provision of a new release, consulting services for the previous release shall still be provided in the last update version until the provision of the next release.

 

5. categories of defects

5.1 Defects occurring in the software must be classified into the following categories and then dealt with within the response period and processing period.

• • Critical defect (priority 1): Fault that causes the entire software or significant parts of it to fail, making it completely or almost completely impossible to use The operational process is impaired to such an extent that immediate processing is unavoidable.
  • Significant defect (priority 2): Fault that impairs the use of the software to such an extent that reasonable work with the software is no longer possible or only possible with disproportionate effort. The simultaneous occurrence of several significant performance defects can lead to a critical performance defect.
  • Other defect (priority 3): Other defect that does not or only insignificantly impairs the use of the software. The simultaneous occurrence of several such defects can lead to a significant or critical performance defect.

 

5.2 123onsite shall classify the defects into the various categories at its reasonable discretion, taking due account of (a) the impact that the defect in question has on the customer’s business operations and (b) the customer’s interests.

 

6. notification of the defect

6.1 If the customer discovers a defect, he must notify 123onsite of this immediately and, in the case of notification by telephone, subsequently in writing within two working days at the latest, stating all relevant information regarding the system environments as well as the other relevant information regarding the defect, so that 123onsite can localize, trace and process the defect.

 

6.2 The customer shall also provide 123onsite with all necessary documents and information required by 123onsite for the diagnosis and processing of defects and, if necessary, grant 123onsite access to the premises, machines and software during normal office hours.

 

7. reaction period

7.1 123onsite shall respond to the notification of a defect by the customer within the following periods (“response period”):

• • In the case of critical defects, within one hour of receipt of the report.
  • In the case of significant defects, within two hours of receipt of the report.
  • In the event of other defects, within one working day of receipt of the report.

 

7.2 The applicable response periods do not run outside service hours.

 

8. processing deadline

8.1 123onsite shall process defects within the following periods (“processing period”). The defect shall be processed within this processing period; the defect shall not be remedied within this period.

• Critical defects within 24 hours of receipt of the report
• Significant defects within two days of receipt of the notification.
• Other defects within ten days of receipt of the

 

8.2 If several defects are present at the same time, 123onsite shall be entitled to set priorities for processing.

 

8.3 The applicable processing periods do not run outside service hours.

 

9. support

 

9.1 123onsite shall provide advice and support to the customer in the event of technical inquiries regarding the use of the software. Support is available to the customer during general service hours. The customer shall describe the software problems as precisely as possible and preferably in writing by e-mail. Feedback from 123onsite shall be provided by telephone or in writing by e-mail or via the support tool integrated in the software. No training (general explanations of how the software works) will be provided as part of the support. Support is provided either by 123onsite itself or by one of its partners, which may also be the manufacturer of the software.

 

9.2 If the customer or one of his employees requests support, 123onsite must have access to the customer’s server-client environment on which the software is installed. The customer must also ensure that a communication link can be established immediately between the customer and 123onsite in order to carry out support services.

 

9.3 If it transpires that the customer was not entitled to make use of the support or that the specific action does not fall within the scope of the support, 123onsite may invoice the costs of the support provided at the 123onsite prices applicable at that time.

 

10. exclusions

 

10.1 The following services in particular are not included in the maintenance and support services:

• • Maintenance and support of customer-specific software adaptations
  • Installation, setup (parameterization) of the update software and support for the customer in the process
  • Services related to setting up the customer’s server-client environment, hardware and networks
  • Training courses
  • Dealing with questions from the customer that are not due to faults or defects in the software, but to operating errors, lack of training and other external influences on the part of the customer
  • other services not expressly described in these special conditions such as structural work like definition of layouts, overviews, annual reports, preparation of charts of accounts, accounting issues, import definitions,
  • On-site support
  • Analysis of new requirements and customer-specific software customization (expansion of software functionality) at the customer’s request
  • Converting/migrating files
  • services relating to software from third parties or from manufacturers other than 123onsite (“third-party software”) and/or relating to its cooperation with 123onsite software that is not the subject of the license agreement (i.e. was incorporated into the software by the customer himself)

• • Maintenance or support for hardware
  • Recovery of damaged or lost data
  • Services following an intervention by the customer in the program code of the software
  • Services outside service hours
  • Services that become necessary because the customer does not fulfill his obligations to cooperate

 

10.2 123onsite shall not be obliged to perform these services. If 123onsite nevertheless decides, at its sole discretion, to carry out these services at the customer’s request, the customer shall owe 123onsite, in addition to the maintenance fee, payment of a fee in the amount of the

 

10.3 The maintenance obligation also does not include the analysis and elimination of faults resulting from:

• • a change to the software of any kind that was not made by 123er-fasst or on its behalf;
  • other circumstances for which 123onsite is not responsible (such as non-compliance with the assumed system requirements, improper operation of the software by the customer, hardware errors, incompatibility of hardware or software used in parallel, etc.);

• • Use of the Software by or on behalf of the Customer in conjunction with other software or hardware or in any other manner not described in the User Manual or otherwise not permitted under the License Agreement;
  • vulnerabilities, latencies (such as viruses, worms, Trojans, logic bombs, etc.) or defects in software, hardware, communication devices, peripherals or other equipment of the customer or of third parties not originating from 123onsite or the customer’s failure to regularly maintain such equipment and/or software;
  • input errors or defects in relation to the data used by the customer; unless the customer proves that these aforementioned changes or other actions are not the cause of the defect.

 

10.4 If 123onsite nevertheless decides, at its sole discretion, to carry out these services at the customer’s request, the customer shall owe 123onsite, in addition to the maintenance fee already owed, payment of a further remuneration in the amount of the service prices applicable at that time.

 

10.5 123onsite shall not provide any maintenance and support services for software that has been installed at the customer’s or a third party’s premises in violation of the license rights or that has been tampered with.

 

11. provisions for work services

 

11.1 The provision of maintenance and support services shall not constitute the provision of services under a contract for work and services. Insofar as 123onsite provides work services in accordance with the maintenance agreement or any separately concluded agreement or the parties expressly agree on work services, the provisions of Part E “Customer-specific software customization” shall apply to these services with priority and in addition.

 

12. warranty

12.1 Insofar as updates, new program versions or other software products are delivered to the customer within the scope of this maintenance agreement, the claims for defects with regard to the innovations contained therein, which do not constitute a mere rectification of defects, shall be determined in accordance with Sections 16 and 17 Part B of these GTC accordingly.

 

12.2 Withdrawal or termination of the license agreement shall be replaced by extraordinary termination of the maintenance agreement. The subject of any right of reduction is the remuneration owed under the maintenance agreement.

 

12.3 The delivery of new updates or, if applicable, the separate conclusion of a maintenance agreement shall not result in an extension of the statutory warranty claims or an extension, suspension or interruption of the statutory warranty periods with regard to the originally delivered software on the basis of the license agreement.

 

12.4 The following shall apply to complaints regarding services: Complaints regarding the provision of services by 123onsite must be made by the customer in writing and without delay, but at the latest within 14 calendar days of becoming aware of the complaint, and the complaint must be described in as much detail as possible. Thereafter, the service provision shall be deemed to be in accordance with the contract.

 

13 Obligations of the customer to cooperate

13.1 The customer shall support 123onsite in every respect in the fulfillment of the contractual maintenance and support obligations comprehensively and free of charge. In particular, the customer shall support 123onsite to the best of its ability in the search for causes of faults, which may also include the suspension of the use of the corresponding software at the request of 123onsite, so that 123onsite can analyze and remedy the defect. If this cooperation is refused, 123onsite shall not be obliged to further investigate or process the defect.

 

13.2 Maintenance and support services shall be carried out remotely as far as possible. The customer shall provide 123onsite with remote access to the required systems at any time on request. The choice of the tool used for remote maintenance is the responsibility of 123onsite, which shall also provide the necessary licensing The customer shall provide the necessary (high-performance) Internet and network connections to the necessary extent, in good time and free of charge. 123onsite reserves the right to discontinue the maintenance and support services if it is reasonably determined that the customer’s data connection does not meet the technical and security requirements specified by 123onsite for this purpose.

 

13.3 The customer shall grant 123onsite access to the necessary records, documentation and information, in particular about the hardware and third-party software used, and shall provide any necessary test plans, test data and test environments, insofar as this is necessary for the performance of the maintenance and support services.

 

13.4 Thecustomer shall immediately take the measures provided by 123onsite to remedy the defect.

 

14. right of use

 

14.1 Insofar as 123onsite provides the customer with software or other copyrighted works for use on the basis of maintenance services, the provisions of the respective license agreement and the statements in Section 5 and Section 7 Part B shall apply accordingly to these protected objects and the rights of use granted to the customer.

 

15. maintenance fees

 

15.1 The amount of the maintenance and support fees is set out in the maintenance agreement concluded between the parties.

 

15.2 Insofar as the customer obliges 123onsite by separate order to provide services which are not covered by the maintenance agreement, a separate contractual relationship shall arise with the proviso that the services provided by 123onsite in this connection shall be remunerated separately plus all ancillary costs incurred. In case of doubt, the amount of remuneration shall be based on the 123onsite prices applicable at the time the order is placed.

 

15.3 License purchase: The maintenance fees are charged in the first year from the first of the month following the start of the contract until the end of the calendar year. Thereafter, the maintenance fees are charged for 12 months in advance.

 

15.4 The fees are due in advance upon invoicing.

 

15.5 License rental and SaaS: The maintenance fees are already included in the license rental price.

 

15.6 If the customer is in default of payment, 123onsite shall be entitled to suspend its maintenance services until all payments due have been settled. This shall not affect 123onsite’s other rights arising from the default – in particular compensation for damages, withdrawal, termination.

 

16. price adjustment

16.1 123onsite shall be entitled to adjust the amount of the remuneration to which it is entitled annually on January 1. This adjustment shall be announced by e-mail and/or by other means, for example via the customer portal.

 

16.2 The customer expressly agrees to an annual adjustment if this (at most) keeps pace with the consumer price index for Germany as officially determined by the Federal Statistical Office (based on the last base year determined prior to conclusion of the contract = 100 points).

 

16.3 In addition, 123onsite shall be entitled to adjust the amount of the remuneration to which it is entitled if and insofar as the purchase price of a third-party software/service changes for 123onsite. However, only to the extent that the price change for the respective third-party software/service has a proportionate effect on the price of the software or service.

 

16.4 In the event of price increases that (i) exceed the price index or (ii) in the event of a price increase due to an increase in the subscription price for third-party software/services, the customer may terminate the corresponding agreement by written notification to 123onsite within two (2) weeks of notification of the price increase to the end of the calendar year. If the customer does not respond to an announced price increase within a period of two (2) weeks, the new price conditions of 123onsite shall be deemed to have been accepted by the customer.

 

17 Contract duration and termination

 

17.1 License purchase: The maintenance agreement shall commence on the first day of the calendar month following the delivery of the software. The maintenance agreement is concluded for an indefinite period and may be terminated by either party with three (3) months’ notice to the end of each calendar year.

 

17.2 License rental and SaaS: The maintenance period is based on the term of the license agreement. The maintenance agreement shall therefore be extended in accordance with the term of the license agreement if it is not terminated in due time in accordance with the provisions of Section 8 Part B . The maintenance agreement can only be terminated in conjunction with the termination of the license agreement.

 

17.3 Termination of the Maintenance Agreement in respect of a part of the Software (such as termination of a particular module) shall result in the right to use the part of the Software for which Maintenance has been terminated being discontinued.

 

17.4 The maintenance agreement may be terminated for good cause without observing a notice period 123onsite is entitled to terminate the agreement without notice for good cause, in particular in the event of copyright infringements by the customer and in the event of persistent default in payment by the customer.

 

17.5 Any termination by a party must be in writing.

 

In addition to these Special Provisions “Part D – Provisions for Maintenance and Support”, the General Provisions “Part A – General Provisions” and the Special Provisions “Part B – License Provisions (Purchase and Rental/SaaS)”apply.

In the event of contradictory provisions, the provisions of the Special Provisions “Part D- Provisions for Maintenance and Support” shall take precedence over the provisions of the Special Provisions “Part B – License Terms (Purchase and Rental/SaaS)”.

 

Part E – Provisions for customized software adaptations

 

1. general

123onsite customizes the software, software components or interfaces for the customer in accordance with the requirements description on which the contract is based (customer-specific software customization).

 

2 Subject matter of the agreement

2.1 The subject matter of the agreement is the creation and delivery of customer-specific software adaptations. Customer-specific software adaptations are not part of 123onsite’s standard software and therefore require a separate description of requirements agreed with the customer (see Section 1. Definitions , Part A). This is to be distinguished from the customizing of the standard software to the customer’s operational requirements.

 

2.2 123onsite shall only be responsible for the success of the creation of the customer-specific software customization insofar as

 

{a} the relevant criteria for this were specifically and conclusively defined in terms of scope and effect in the requirements specification when the contract was concluded and have become the subject of the agreement (agreed performance criteria) and

 

{b} the customer fulfills its obligations to cooperate (see Clause 17 Part A and Clause 14 Part B) in a timely and proper manner, unless these have no effect on the provision of the service.

 

2.3 The description of requirements is based on the technical and functional requirements of the customer for the software customization communicated by the customer. The requirements description conclusively reflects the agreed performance criteria. Changes to the requirements specification shall only be made in accordance with Section 4 Part E.

 

2.4 Any analysis, planning and consulting services for the preparation of the requirements specification shall only be provided by 123onsites on the basis of a separate agreement.

 

2.5 The following services are not part of this agreement and must be agreed separately via a consulting services agreement (Part C) must be agreed separately:

• Analysis, planning and consulting services B. for the creation of the requirements concept, project management
• Creation of the requirements description
• Installation of the customer-specific software customization in the customer’s client-server environment
• Test support
• Training in customer-specific software customization
• Data migration or conversion
• Comprehensive review of the customer’s change proposals (see sections 3 and 4.4 Part E).

 

2.6 123onsite is also not obliged to provide the source code on which the customer-specific software adaptation is based, including the associated development documentation.

 

2.7 123onsite shall not be responsible for the maintenance and support of the customer-specific software customization.

 

3. use of customer-specific software customization

3.1 The customer may only use the customer-specific software customization in the compilation and for the underlying standard software for which the customer-specific software customization was developed by 123onsite.

 

3.2 The customer shall be granted the rights of use to the customer-specific software adaptation in accordance with the license agreement for the underlying standard software. Reference is made in particular to Sections 5, 6 and 7 Part B .

 

3.3 123onsite shall be entitled to use the customer-specific software adaptation and any know-how arising in connection with its development for other purposes and to discard it without restriction.

 

4. procedure for service changes

4.1 Subsequent requests for changes by the customer with regard to the scope of functions, the software structure, the screen design or other features after conclusion of the contract shall only become part of the order if 123onsite expressly agrees to them in writing.

 

4.2 Both contracting parties may propose changes to the agreed performance criteria (Section 2 Part E) and service provision. The following procedure is agreed for this purpose:

 

4.3 123onsite will review a change proposal from the customer and inform the customer whether or not a comprehensive review of this change proposal is required.

 

4.4 If a comprehensive examination of the proposed change is required, 123onsites shall inform the customer within a reasonable period of time of the time and remuneration likely to be required for this. The customer shall issue or reject the review order within a reasonable period of time.

 

4.5 If an extensive examination of the change proposal is not necessary or the commissioned examination has been completed, 123onsite shall either (a) submit a written offer to the customer to implement the changes (change offer). The change offer shall contain in particular the changes to the service description and their effects on the service period, the planned dates, the test resources and the remuneration; or (b) inform the customer that the change proposal is not feasible for 123onsite within the scope of the agreed services.

 

4.6 The customer shall either reject a change offer within the acceptance period specified therein (binding period) or accept it in writing or in another agreed form. The customer shall notify 123onsite immediately of any rejection.

 

4.7 123onsite and the customer may agree that services affected by a proposed change shall be interrupted until the end of the review or – if a change offer is submitted – until the expiry of the binding period.

 

4.8 Until the change proposal is accepted, the work shall continue on the basis of the previous contractual agreements. The performance periods shall be extended by the number of calendar days on which the work was interrupted in connection with the change proposal or its examination. 123onsite may demand appropriate remuneration for the duration of the interruption (Clause 7 Part E), unless 123onsite has otherwise deployed its employees affected by the interruption or has maliciously failed to deploy them.

 

4.9 The amendment procedure shall be documented in writing on a 123onsite form at the request of 123onsite, unless otherwise agreed. Any amendment to the contractual agreement, in particular the service description, must be agreed in writing.

 

4.10 Clauses 2 to 4.7 Part E apply accordingly to 123onsite amendment proposals.

 

4.11 Proposals for changes must be addressed to the contact person (see Section 1 Part A) of the contractual partner.

 

4.12 Depending on the scope and impact of the change offer and the associated additional costs and delays, 123onsite reserves the right to charge for (partial) services already provided prior to delivery.

 

5. acceptance

 

5.1 123onsites shall notify the customer of the readiness for acceptance of the respective service or partial service. The customer shall carry out an acceptance test immediately, but at the latest within a period of 14 days from receipt of the notification, to determine that the services are in accordance with the contract.

 

5.2 Unless otherwise agreed, a notified defect shall be assigned to one of the following categories:

 

a) Category 1: The defect means that the software customization as a whole or the part of the software customization to be accepted cannot be used.

 

b) Category 2: The defect causes significant restrictions in the use of important features that cannot be circumvented by suitable measures for a reasonable period of time that is reasonable for the customer.

 

c) Category 3: All other defects. The service has a defect that only insignificantly restricts its use.

 

5.3 The customer may only refuse acceptance if a category 1 defect is notified at the same time or several category 2 defects which together are equivalent to the effects of a category 1 defect (together “defects preventing acceptance”). The refusal of acceptance and the notification of defects must be made in writing.

 

5.4 123onsite shall remedy duly reported defects with category 1 effects within a reasonable period of time in such a way that there are no longer any category 1 effects and shall make the services available again for acceptance by notification in accordance with Section 1 Part E .

 

5.5 As long as the inspection cannot be properly continued due to such a defect, its effects or its elimination, the acceptance period for the affected services shall be extended appropriately. Claims for defects after acceptance remain unaffected.

 

5.6 If no acceptance takes place within the acceptance period in accordance with Section 5.1 Part E and if no refusal of acceptance is made stating a defect preventing acceptance as definedin Section 5.3 Part E , the performance of 123onsite shall be deemed to have been accepted upon expiry of the period.

 

5.7 Partial acceptances already declared shall remain unaffected by subsequent acceptance tests for other services. The same shall apply to tests already carried out, unless they are affected by a defect or its rectification.

 

5.8 The services shall also be deemed to have been accepted – even without an express declaration and without a request for acceptance by 123onsite,

 

a) if the customer uses the service for purposes other than testing (e.g. productive operation) without being obliged to do so in accordance with

5.3 Part E defects have been reported, or

 

b) upon payment, unless the customer has justifiably refused acceptance

 

5.9 Unless otherwise agreed, definable partial services shall also be accepted individually in accordance with these aforementioned provisions.

 

6. claims for defects

6.1 The customer shall be granted claims for defects in the customer-specific software adaptation in accordance with the license agreement for the underlying standard software. Reference is made in particular to Sections 16 and 17 Part B

 

6.2 The customer shall not be entitled to a chargeable self-remedy (§ 637 BGB).

 

7. provisions for services

Insofar as 123onsite provides services under a service contract or the parties expressly agree on services, the Special Provisions for Consulting Services(Part C) shall apply to these services with priority and in addition.

 

8. remuneration

 

8.1 The calculation of the service for software customization is based on the service rates of a placed order or the order confirmation.

 

8.2 Invoicing shall be based on actual expenditure and plus travel expenses as regulated in Section 6 Part E .

 

8.3 On-site billing appointment:

The minimum charge for on-site appointments is six (6) hours plus the travel costs agreed in the offer or order confirmation. Each additional hour or part thereof shall be invoiced at the extended hourly rate. Invoicing shall be based on hours commenced.

 

8.4 Billing for remote services:

Remote services are charged per hour or part thereof, plus a lump sum for set-up time, in accordance with the quotation or order confirmation

 

8.5 Set-up time for remote services:

A flat-rate set-up time is generally charged for services provided remotely. The set-up time includes the technical preparation/post-processing, e.g:

• Set up remote maintenance session
• Collect access codes
• Compile documents/ tools/ downloads
• Arrange appointments, coordinate requirements
• License organization and verification

 

8.6 Travel expenses:

Travel expenses are made up of travel time, travel costs and accommodation costs. Travel time is the time required by the 123onsite employee to travel from his place of residence / place of work to the place of performance. Travel time shall be remunerated at the agreed hourly rate. Travel costs for all means of transportation as well as accommodation costs shall be charged according to expenditure and receipts or according to travel expense flat rates.

 

8.7 Allowances:

Outside the 123onsite service times (in accordance with “Definitions” Part A) and on Saturdays, a surcharge of 50% shall be applied to the service rates of an order placed or the order confirmation, and 100% on Sundays and public holidays.

 

9. cost estimates

 

9.1 In the event that 123onsite provides the customer with a cost estimate of the expected services required in the software customization agreement, the following shall apply:

{a} The estimates are based on 123onsite’s experience and depend on a wide variety of factors (e.g. complexity of the existing IT infrastructure, level of detail of the processes to be mapped, etc.). The cost estimate is non-binding and 123onsite provides no guarantee for the accuracy of the estimate.

 

{b} This is neither a fixed price nor a maximum price agreement, but a cost estimate within the meaning of Section 649 BGB.

 

{c} 123onsites shall inform the customer in good time if it becomes apparent that the cost estimate will be significantly exceeded.

 

{d} An extension of the scope of services at the request of the customer or a cost increase due to official, statutory requirements are irrelevant for the assessment of whether there is a significant overrun.

 

{e} Insignificant overruns shall be remunerated by the customer to 123onsite in accordance with the contract.

 

In addition to these Special Provisions “Part E-Customized Software Adaptations”, the General Provisions “Part A – General Provisions” and the Special Provisions “Part B- License Provisions (Purchase and Rental/SaaS)” shall apply.

 

In the event of contradictory provisions, the provisions of the Special Terms and Conditions “Part E: Customer-Specific Software Customization” shall take precedence over the provisions of the Special Terms and Conditions “Part B: License Terms (Purchase and Rental/SaaS)”.

 

Status April 2025