General Terms and Conditions of Factorial GmbH (“Factorial”)
§ 1 Scope
- Factorial provides its services and deliveries (collectively ‚Services‘), including future business with the Customer under ongoing business relationship, exclusively on the basis of these General Terms and Conditions (‚GTC‘). Deviations or changes must be agreed in writing. The Customer’s General Terms and Conditions shall not apply, even if reference is made to such in individual documents of the Customer used in connection with the conclusion of the Contract, unless Factorial agrees to their validity in writing. In this respect, the execution of a service shall not be considered as consent.
- These GTC shall only apply to entrepreneurs as defined by § 14 German Civil Code (BGB).
- Factorial is entitled to change these GTC at any time. Factorial will inform the Customer about such changes in textual form. The change is considered to be approved by the Customer if the Customer does not object in textual form within six weeks after receipt of the change notification. Factorial will inform the Customer about this consequence in the change notification.
§ 2 Conclusion of Contracts; General Information on Service Provision
- Contracts are usually concluded via a corresponding offer from Factorial, in which the relevant Service details and conditions are specified, and a corresponding order from the Customer. Factorial’s offer is decisive for the scope of the Services to be provided.
- Factorial owes the performance of the contractual Services with the care customary in the industry. Factorial may use third parties (e. g. suppliers, freelancers, subcontractors) for the provision of Services.
- Working Days within the sense of the contract are Monday to Friday, excluding public holidays in Hamburg. Factorial’s regular Working Hours are weekdays from 10:00 am to 6:00 pm.
- Factorial shall owe user documentation or any other documentation only if and insofar as this is agreed in individual cases.
- As far as Factorial’s Services refer to the Customer’s projects or are carried out within the scope of such projects, the overall responsibility for project planning, implementation and control, including scheduling and resource deployment, lies with the Customer.
- Factorial does not owe any obligation to verify compliance with applicable laws or regulations with respect to Customer’s business transactions to which the Services to be provided by Factorial relate, nor does Factorial owe any obligation to ensure the accuracy, completeness, integrity or authenticity of any data provided by Customer for the purpose of providing the Services or to be processed by means of the Services provided by Factorial.
§ 3 Provisions Specific to Agile Development
- In the case that Factorial has agreed to use an agile development process for the development of software, this development process will be actively co-directed by a Product Owner appointed by the Customer. The Customer shall specify the requirements for the software. The parties will map these requirements into Stories, which the Customer’s Product Owner will formulate in coordination with Factorial and post to a Product Backlog accessible to both parties where the Customer can prioritize tasks. Factorial develops the software according to the Product Backlog in iterations.
- The Customer shall test Factorial’s deliverables continuously, including during ongoing iterations. The Customer shall, at the latest upon completion of an iteration, which Factorial notifies the Customer of, immediately test and release the outcome of such iteration or notify Factorial of the reasons for any rejection. If a deliverable is rejected, the parties agree on whether further processing should take place in the next iteration.
§ 4 Support Services
- Factorial shall provide Support Services within the scope of a continuing obligation for troubleshooting or error elimination in direct connection with the software and its scope of functions, if separately commissioned by the Customer.
- The Customer reports support requests and malfunctions via the ticket system provided by Factorial. Factorial shall respond to incoming support requests within reasonable time, at the latest by the end of the regular Working Hours (§ 2.3) of the Working Day following the notification. If the functionality of the software is impaired, the Customer flags the support request as an emergency. Factorial will respond to such emergency requests during the course of the same Working Day, if possible, provided the request is received by not later than 12:00 am; otherwise, Factorial will respond during the course of the following Working Day, if possible.
- If the malfunction reported by the Customer is caused by system components other than the software covered by the support or by improper operation of the software in the Customer’s area of responsibility, all (additional) expenses incurred in this connection shall be remunerated separately by the Customer at the Factorial prices valid at the time.
- The Contract for Support Services shall have a minimum term of 12 months and may be terminated at the earliest with a notice period of 6 months to the end of the minimum term. The contract term shall be extended by a further 12 months in each case if the Customer does not terminate the contract, and may then be terminated with a notice period of 6 months to the end of the respective contract term.
§ 5 General Cooperation Duties of the Customer
- The Customer shall provide Factorial with all documents and information required for the performance of the service as well as any agreed materials (e. g. hardware or software components to be procured by the Customer and/or image and text material for integration into websites, webshops, online platforms, apps, etc.) in a timely manner, in a complete, up-to-date version, in the agreed format, free of malware and free of third-party rights. As far as Factorial is free to determine the design of the Service (especially in the case of design services), the Customer shall specify its ideas and requirements for the Service prior to the commencement of the Service (e. g. within the scope of an initial briefing). If the Customer recognizes that the material or information provided or the Customer’s own information or requirements are incorrect, incomplete or not up to date, the Customer shall immediately inform Factorial of any such errors or incompleteness as well as of the consequences recognizable to the Customer and shall take all necessary corrective measures.
- With respect to materials and system components provided or made available by the Customer, the Customer warrants that it is entitled to make such materials and system components available to Factorial and that it has the necessary rights of use and, if applicable, the necessary modification rights. The Customer grants Factorial the non-exclusive rights of use and modification required for the performance of the Services under the Contract. The Customer shall ensure that all applicable legal provisions (in particular data and consumer protection law) as well as industrial property rights, copyrights and other third-party rights are duly observed when using the work results created by Factorial (e. g. websites, webshops, online platforms, apps, etc.).
The Customer shall indemnify Factorial against all actual and alleged claims, including the costs of legal prosecution, brought against Factorial by a third party in connection with the circumstances set forth in this § 5.2 alleging an infringement of property rights, copyrights or other rights. If the Customer recognizes or must recognize that such an infringement is imminent, the Customer shall inform Factorial without delay.
- With respect to the materials provided by the Customer, the Customer shall be responsible for ensuring that such materials are up-to-date, error-free, stable as well as compatible with the other IT components used in the course of the performance of the Contract as well as with the Customer’s existing IT environment. The Customer shall inform Factorial without delay of all special features of the materials provided that are relevant to the performance of the Contract, in particular of any defects that have occurred, maintenance measures that have been carried out, or additional or proprietary developments. The Customer shall inform Factorial in a documented form of any particular provisions, e. g. licensing terms of provided systems or components, which are to be observed by Factorial during the provision of Services.
- The Customer shall ensure that sufficient and state-of-the-art measures in the interest of data and information security are taken in its organizational area and sphere of responsibility (including data center service providers commissioned by the Customer), in particular regular data backups (usually updated on a daily basis). This also applies to the backup of the Customer’s data against damage or loss during the performance of contractual services during which Factorial accesses the Customer’s systems; for this purpose, the Customer shall provide a complete backup of its current data stock on a suitable storage medium prior to the first use of any service procured from Factorial, including any use for test purposes.
- The Customer acknowledges that the success of IT projects depends crucially on close cooperation between the parties, mutual cooperation obligations as well as constant planning and mutual coordination. The Customer shall support Factorial adequately and at its own expense with regard to the execution of the Contract, including the provision of necessary personnel resources. The Customer shall designate a responsible, competent contact person along with a deputy, who shall be authorized to make all decisions and take all actions related to the execution of the contract. The Client shall inform Factorial immediately of any changes in these persons.
- If the Customer uses third parties (e. g. other service providers such as agencies) to fulfill its cooperation duties, the Customer shall inform Factorial of this fact without delay.
- The Customer shall bear any additional costs caused by a failure to perform any cooperation duties or the failure to perform such duties in a timely, complete or proper manner.
§ 6 Change Requests
Unless the procedure for the adjustment of service specifications already results from the relevant service model (e. g., in the case of agile development), and unless otherwise agreed in the individual case (e. g., procedures on the part of an agency with back-to-back coordination with an end customer), the following shall apply to Change Requests:
- If the Customer wishes to change agreed Services, including changes to the agreed schedule, the Customer shall submit such Change Request via the ticket system used by Factorial or by email, stating the exact Service specifications and reasons for the desired change. Factorial will review the effects of the requested change on the performance of the Contract within a reasonable period of time, in particular with regard to costs/additional expenses, time schedules and the Customer’s obligations to cooperate. If Factorial recognizes that Services to be provided cannot be performed or can only be performed with delay due to the review of the Change Request, Factorial will inform the Customer thereof. If the Customer declares its consent to the delay, Factorial shall carry out the further review of the Change Request. The Customer is entitled to withdraw its Change Request at any time; the initiated change procedure shall then end.
- The implementation of Change Requests is carried out against a separate remuneration according to Factorial’s respective prices valid at the time. The Customer shall bear any expenses incurred by the Change Request, including the examination of the Change Request, the preparation of a change proposal and any downtimes.
- After reviewing the Change Request, Factorial shall inform the Customer about the effects on the execution of the Contract. Factorial shall either submit a detailed proposal for the implementation of the Change Request, stating whether and to what extent separate remuneration is due for such implementation, or shall state why the Change Request cannot be implemented.
- The Parties shall agree in good faith on the terms of a proposal for the implementation of a Change Request, including costs; the agreement shall be documented by email communication or via the ticket system.
- If an agreement is not reached within a reasonable period of time, or if the Change Request procedure ends for any other reason, the originally agreed scope of services shall remain in effect. The same shall apply if the Customer does not agree to a postponement of the Services for the purpose of further examination of the Change Request pursuant to § 6.1.
- Any dates affected by the Change Request procedure shall be postponed taking into account the duration of the review, the coordination of the implementation proposal and the Change Requests to be executed together with a reasonable ramp-up period, if necessary. The Parties shall agree on the new schedule in good faith.
- Notwithstanding the foregoing, Factorial may modify or deviate from the agreed Services if the modification or deviation is not unreasonable for the Customer, taking into reasonable consideration the legitimate interests of both Parties. This includes in particular minor technical deviations that do not affect the functionality of the agreed Services.
§ 7 Rights to Work Results
- Factorial grants the Customer exclusive, transferable and sublicensable, temporally and geographically unrestricted rights of use to work results developed individually for the Customer, in particular those created by processing the Customer’s information, data and materials. Factorial reserves the right to perform similar or identical development work for other customers and/or to develop its own software accordingly and to exploit it as its own product.
Factorial grants the Customer non-exclusive, temporally and geographically unrestricted rights of use to all other work results, limited to the purposes of the contract, and transferable and sublicensable only for these purposes.
If Factorial uses open-source software (“OSS”), both Factorial and the Customer shall be bound to comply with the applicable license terms, including any obligations to adopt OSS/copyright notices. Factorial is precluded from granting exclusive rights of use to OSS components to the Customer. Factorial shall inform the Customer about the use of OSS components and the applicable license terms upon request.
- When granting simple rights of use, the Customer shall not be entitled to commercially exploit work results, in particular software or modified versions thereof, like a (software) provider, e. g. to distribute copies or to offer the software as a download, to make it available to third parties as multiclient software for offering an online platform of these third parties, to use it or have it used for such purposes. The Customer may not remove any copyright notices contained in the work results. Any further use of the work results other than that described in this § 7 or otherwise agreed by contract shall be inadmissible. This shall not affect the right to transfer a legal position acquired through the purchase of software in its entirety. Statutory minimum rights with respect to software pursuant to Sections 69d and 69e of the German Copyright Act (UrhG) remain unaffected.
- If, in individual cases, Factorial permits the use of work results by third parties, i. e. other users included in the Contract other than the Customer (e. g. business partners or Customer’s external IT service providers), the Customer shall specifically impose a written obligation on these users to comply with the conditions and restrictions of use applicable to the Customer and to fulfill the corresponding cooperation obligations (in particular data backup).
- The granting of rights of use is always subject to a condition precedent and shall only become effective upon full payment of the remuneration for the Services concerned. Factorial may provisionally allow the Customer to use the work results prior to this point in time. Factorial retains ownership of all physically provided objects (e. g. data carriers) on which work results are stored until full payment of the remuneration payable for such objects.
§ 8 Remuneration
- In the absence of any specific provision in the contract documents, the Customer shall pay Factorial a fee based on Factorial’s current prices at the time of the order. All prices are subject to statutory value added tax, if applicable.
- In case of an agreement on daily rates, a daily rate covers 8 hours. For each additional commenced hour, ⅛ of the daily rate shall be charged; however, the Customer shall not be entitled to overtime. For work performed outside the regular working hours, an additional charge of 100 % applies.
- Invoices are payable within 14 days of the invoice date; recurring fees are payable in advance on the third working day of each month.
- Where the Contract relates to a contingent of Services which the customer successively retrieves within an agreed period of time, the contingents set out in the contract documents shall be deemed as fixed. Factorial will inform the Customer in due time before the expiry of the agreed period for the retrieval of Services, if and to what extent services have not been retrieved, and will offer the Customer these Services for retrieval. Should the Customer however not retrieve the Services within the agreed period of time, Factorial may demand full payment for the ordered contingents. Factorial will deduct from the invoice any resources that have been scheduled for the Customer’s benefit to the extent that Factorial is able to utilize such resources in other ways. However, Factorial is under no obligation to generate any substitute deployment opportunities for its resources.
- Any expenses incurred in excess of the agreed Services will be invoiced in accordance with Factorial’s prices in effect at the time of performance of the Services.
- The Customer shall reimburse Factorial for reasonable expenses, including travel time.
- Factorial is entitled to adjust the remuneration for recurring services (continuing obligations) once a year at its reasonable discretion, taking into account the Customer’s interests, to the development of those costs which are relevant for the calculation of the respective remuneration, in particular price changes of suppliers or subcontractors as well as increased personnel costs. Factorial will inform the Customer of such changes to a remuneration in text form with reasonable advance notice. The change shall be deemed accepted by the Customer if the Customer does not object in text form within six weeks after receipt of the change notification; Factorial will inform the Customer of this consequence in the change notification. If the Customer objects to the adjustment of remuneration, both parties shall have a right of termination with effect from the announced date of the new prices coming into force, which may be exercised within one month after receipt of the Customer’s objection by Factorial.
- The Customer is only entitled to offset against Factorial’s claims for remuneration if its counterclaim is undisputed or has been judicially determined. The same shall apply to the assertion of rights of retention, whereby the counterclaim must additionally be based on the same contractual relationship.
- In case of default of payment of the Customer in more than insignificant amount, Factorial shall be entitled to withhold further Services, whereby Factorial shall only exercise this right after prior warning with a reasonable deadline of at least 14 days and fruitless expiration of the deadline. The Customer shall remain obligated to pay any due remuneration in this case. Factorial reserves the right to assert further claims due to default of payment by the Customer.
§ 9 Delivery Dates; Performance Disruptions
- Delivery dates are always non-binding targeted dates, unless expressly agreed upon as binding in writing. Agreed performance periods shall commence upon conclusion of the Contract unless otherwise agreed. If information or documents from the Customer are required for the performance, the performance period shall commence with their receipt by Factorial at the earliest.
- Factorial is released from its obligation to perform if the non-performance is due to events of force majeure or other unforeseen, extraordinary events beyond Factorial’s control and unavoidable for Factorial (e. g. war, strike, lockout, riots, expropriation, changes in the law, official orders, storm, floods, natural disasters, epidemics, pandemics, water intrusion). The following shall also be deemed to be other unforeseeable, extraordinary and unavoidable events: power failures, system failures on the Internet, interruption or destruction of data-carrying or telecommunications connections, unlawful activities of third parties on the Internet or sabotage by malware, unless and insofar as Factorial has expressly assumed an obligation to safeguard against the occurrence of such circumstances within the scope of contractual performance obligations or such safeguarding is required in accordance with the respective established rules of technology.
- The release from the obligation to perform shall also apply in the event of delays due to circumstances within the Customer’s sphere of responsibility (e. g. failure to provide cooperative acts in a timely manner, lack of availability of Customer-supplied facilities, delays caused by third parties attributable to the Customer).
- The release from the obligation to perform shall apply for the duration of the impediment plus a reasonable ramp-up period. Claims for damages against Factorial shall be excluded in such cases.
Factorial will inform the Customer about any occurrence of a case of force majeure or other circumstances mentioned in paragraphs 2 and 3 without undue delay after becoming aware of it.
§ 10 Test and Release Procedure/Acceptance
If a test and release procedure has been agreed for the contractual Services or individual partial Services, or in the case of (partial) Services that are typically tested and/or released before subsequent Services are performed (e. g. design and conceptual work), a test and release procedure shall be carried out for documentation purposes. Where agile development is involved, § 3.2 shall apply with priority. In all other respects, the following shall apply:
- After completion of the services, if agreed upon after completion of individual partial steps (e. g. agreed upon milestones), Factorial shall notify the Customer of the completion.
- The Customer shall subsequently examine the relevant Services or partial Services for compliance with the Contract, whereby Factorial will provide the Customer with appropriate assistance. The Customer is obliged to carry out the inspection within 10 working days after notification of completion and to inform Factorial with reasonable notice about the place and time of the inspection.
- The Customer shall immediately notify Factorial via the ticket system used by Factorial of any recognizable adverse deviations of the Services from the contractually agreed specifications. If the deliverables to be examined are in compliance with the contractual provisions, the Customer shall declare the release of the deliverables or partial deliverables to Factorial via the ticket system. Insignificant deviations from the contractually agreed specifications do not entitle the Customer to refuse release.
- If there are no or only insignificant deviations from the contractually agreed specifications and should the Customer yet refuse the release, Factorial may withhold the rectification of these insignificant deviations and the further execution of the Contract until the release has been declared in writing, without Factorial being in default.
- If the Customer has reported deviations that justify the Customer’s refusal of release, Factorial shall notify the Customer of completion after the deviations have been rectified; the testing and release procedure shall then recommence.
- If the Customer does not notify Factorial of any recognizable adverse deviations of the Services from the contractually agreed specifications within the scope of the examination, the services of Factorial shall be deemed to have been rendered in accordance with the Contract. If the Customer does not fulfill its obligation to perform the examination in due time and if no notification of adverse deviations from the contractually agreed specifications is made within the specified period, the services shall be deemed to have been released upon expiration of the period relevant for the examination. This shall not apply unless the failure to conduct the examination in a timely manner was demonstrably caused by Factorial’s culpable conduct. Regardless of the execution of the test and release procedure, the productive use of any deliverable by the Customer shall in all cases be deemed as release.
- Factorial may request for partial examinations and releases if agreed upon, or in case of completed deliverables within the scope of Service provision, or if the partial deliverable is completed in itself and/or separately usable and/or functional; this also includes completed documents and parts of documents. The same applies if the relevant part of the performance can no longer be examined with sufficient technical certainty as part of an overall examination.
- If test data and/or a test system are required for the execution of the test and release procedure, these shall be provided by the Customer, unless otherwise agreed in the individual case.
- Should the Services to be provided by Factorial be legally classified as the production of works (‘Werkvertrag’) according to their legal character (in distinction to the provision of services; ‘Dienstvertrag’), the procedure described in this § 10 shall apply as the formal acceptance procedure.
§ 11 Claims for Defects
If and to the extent that the type of Services to be provided by Factorial imposes warranty obligations on Factorial (in particular, not in the case of Service contracts; ‘Dienstvertrag’), the following shall apply:
- The Customer shall notify Factorial immediately of any defects that occur, together with detailed information relevant to error analysis and defect rectification, via the ticket system used by Factorial.
- The Customer shall provide Factorial with reasonable assistance in analyzing errors and rectifying defects. The Customer shall immediately grant access to documents from which more detailed circumstances regarding the occurrence of a defect can be derived. Upon Factorial’s request, the Customer shall provide the necessary personnel capacities and machine times and enable remote access to its systems for the purpose of remote maintenance, if technically possible.
- Factorial will remedy defects within a reasonable period of time and at its own discretion by either rectification of the defect or subsequent delivery (together: Subsequent Performance; ‘Nacherfüllung’). Subsequent Performance may include Factorial providing the Customer with a workaround to eliminate the malfunction temporarily or, if reasonable for the Customer, permanently.
- Factorial reserves the right to carry out three attempts at Subsequent Performance in total, unless this would be unreasonable for the Customer in the individual case. If the Subsequent Performance fails, the Customer shall be entitled to the statutory warranty claims. The following § 12 shall apply to claims for damages and reimbursement of expenses.
- If the Customer wrongfully notifies Factorial of the existence of a defect due to circumstances outside of Factorial’s sphere of responsibility, or if the Customer provides incorrect, incomplete or delayed information regarding the defect, Factorial shall be entitled to charge the Customer for any reasonable (additional) expenses incurred by Factorial for the analysis and rectification of the defect.
- In the event of an infringement of third-party property rights for which Factorial is responsible (defect of title), Factorial may, at its own discretion, either acquire from the third party at its own expense a right of use sufficient for the agreed use and grant it to the Customer, or modify the service in question while retaining the agreed possibilities of use or provide the Service anew in such a way that no third-party property rights are infringed any longer. Should such action be impossible or unreasonable for Factorial, the Customer shall be entitled to the statutory claims. The following § 12 shall apply to claims for damages and reimbursement of expenses.
- Claims for defects (including defect-related claims for damages due to failure to perform, Subsequent Performance or secondary obligations) shall become statute-barred 12 months after the statutory commencement of the limitation period. This does not apply if a defect was fraudulently concealed. In the case of defect-related claims for damages, the 12-month limitation period shall not apply to damages arising from injury to life, limb or health, or if Factorial can be held responsible for intent or gross negligence.
§ 12 Liability for Damages and Reimbursement of Expenses
- Factorial is liable, regardless of the legal grounds, including breach of contract and tort, only for intent, gross negligence and negligent breach of essential contractual obligations or obligations, the fulfillment of which makes the execution of the Contract possible in the first place and on the compliance of which the Customer may regularly rely (so-called cardinal duties; ‘Kardinalpflichten’).
- In the event of simple negligence, Factorial’s liability shall be limited to compensation of foreseeable, contract-typical damage, but not more than:
- 50% of the net contractual remuneration for each claim in the case of non-recurring Services (e. g. software projects) and the total net contractual remuneration for the Contract in question;
- 25% of the net annual remuneration in case of recurring Services (continuing obligation, e. g. service contract) for each claim and the total of the net annual remuneration for the Service in question for each contract year.
- In the event of simple negligence, Factorial shall not be liable for lost profits, lost savings and other indirect and subsequent damages in the form of pure financial losses incurred by the Customer; any indirect or subsequent damages in the form of third-party claims directed against the Customer shall remain unaffected, whereby the limitation in terms of amount pursuant to § 12.2 shall apply to any resulting recourse claims against Factorial.
- Unless the 12-month limitation period pursuant to § 11.7 applies to claims for damages, claims for damages or reimbursement of expenses shall become statute-barred within two years from the statutory commencement of the limitation period.
- The limitations of liability according to § 12.1 to 12.3 as well as the statute of limitations according to § 12.4 shall not apply in case of intent, gross negligence, damages resulting from injury to life, limb or health, claims under the Product Liability Act, in cases of fraudulent intent as well as in cases where Factorial has guaranteed the quality of the Services.
- If the subject matter of the Contract is the temporary use of IT components or systems (e. g. hosting), Factorial’s strict liability for damages for defects already existing at the time of the conclusion of the Contract (Section 536a (1) of the German Civil Code) is excluded.
- Insofar as Factorial’s liability is excluded or limited, this shall also apply to the personal liability of its legal representatives, employees and vicarious agents.
§ 13 Confidentiality
- Both parties undertake to treat all Confidential Information, in particular Business Secrets, as well as corresponding documents and material containing Confidential Information or from which such information can be derived, disclosed to them or becoming known to them in the course of the execution of the Contract as strictly confidential, to use it only for the purposes provided for in the Contract, to protect it from unauthorized use and disclosure and not to make it accessible to third parties, with the exception of their Affiliated Companies (§§ 15 et seqq. AktG – German Stock Corporation Act) as well as with the exception of third parties who may have been engaged for the performance of the Contract and on whom the parties impose corresponding duties of confidentiality.
- “Business Secrets” shall mean all information within the meaning of Section 2 No. 1 of the German Business Secrets Act (GeschGehG). For the purposes of the Contract, the Parties consider the following types of information to be Business Secrets in particular: Know-how, computer programs and design material including underlying ideas and algorithms, data, database models, analyses, concepts, specifications, prototypes, plans, flow charts, process and product descriptions, developments, technical procedures, drafts, formulas, models, user and supplier data, prices, cost estimates, offers, price calculations, business strategies, company data, market analyses and similar items and materials, whether in embodied or electronic or other form, including analog and electronic data and files, physical and virtual data carriers, in addition, all information and materials marked “confidential” (or equivalent), as well as all other non-disclosed technical, commercial and managerial information relating to the business operations of the respective Party or its Affiliates, where by its nature and type there is typically a confidentiality interest.
- The Parties are expressly prohibited from procuring or obtaining any Business Secrets by Reverse Engineering. “Reverse Engineering” within the meaning of the confidentiality clause refers to the decoding of business secrets from products, information or objects which the disclosing Party has provided to the receiving Party or which have otherwise become known or accessible to the receiving Party in the course of the performance of the Contract, by observing, examining, deconstructing, analyzing, testing or similar activities. Statutory minimum rights with regard to software pursuant to Sections 69d, 69e of the German Copyright Act (UrhG) shall remain unaffected.
- The confidentiality obligation shall not apply to information which (a) was already known or generally accessible to the receiving Party prior to the conclusion of the Contract or disclosure by the disclosing Party (the earlier point in time shall be decisive), or (b) later becomes known or generally accessible without breach of a confidentiality obligation on the part of the receiving Party, or (c) which was demonstrably developed by the receiving Party independently of the knowledge of the information disclosed to it or which came to its knowledge under the Contract, or (d) for which a statutory or regulatory disclosure obligation exists.
- The confidentiality obligation expires of 5 (five) years from the effective termination of the Contract. For Business Secrets whose acquisition and use by, or disclosure to, unauthorized third parties would recognizably endanger the existence of the disclosing Party (e. g. secret know-how), the confidentiality obligation shall apply for an unlimited period of time. The prohibition of Reverse Engineering pursuant to § 13.3 applies for an unlimited period of time.
§ 14 Data Protection
Both Parties shall observe all applicable data protection laws. The Customer warrants that the processing of personal data by means of the Services provided by Factorial is permissible under applicable data protection law. If Factorial processes personal data on behalf of the Customer or has access to data in the Customer’s area of responsibility, the Parties will enter into a Data Protection Agreement (“DPA”) for this purpose, if necessary.
§ 15 Customer Reference
Factorial is entitled to name the Customer as a reference customer on its website and in other media or marketing documents and to also use the Customer’s company logo or company trademark for this purpose within the scope of a revocable, simple right of use. When disseminating, publishing and/or making publicly available the services created by Factorial for the Customer (e. g. websites, apps or similar), the Customer agrees to refer to the fact that Factorial acted as the service provider for the Customer at a suitable place and to set a corresponding link to Factorial’s website, unless this would be unreasonable for the Customer in the individual case.
§ 16 Non-solicitation
Due to the close cooperation of the Parties within the scope of Service provision, the Customer obtains special knowledge about Factorial’s key personnel and specialists trained on a long-term basis. The Customer acknowledges Factorial’s legitimate interest in protecting its professional and technical know-how from being siphoned off, in particular to maintain its competitiveness. In order to safeguard these interests, the Customer undertakes not to take any action to solicit any of Factorial’s employees or freelancers assigned to the Customer’s projects, either directly or indirectly through third parties such as headhunters or personnel consultants, during the term of the cooperation and for a period of one year thereafter. For each case of culpable infringement, the Customer undertakes to pay Factorial a contractual penalty to be determined by Factorial in its reasonable discretion and, in the event of a dispute, to be subject to judicial consideration as to its appropriateness by the competent court.
§ 17 Final Provisions
- Unless otherwise agreed for individual rights or obligations, the Contract or individual rights or obligations hereunder may only be transferred to a third party with the consent of the respective other Party. The provision of § 354a of the German Commercial Code (HGB) shall remain unaffected. Factorial’s right to use subcontractors or other vicarious agents shall also remain unaffected.
- All attachments referred to in the contract documents are material parts of the Contract. This also includes such documents which are deposited online for retrieval by Factorial or (if relevant) its suppliers or subcontractors and to which reference is made in the contractual documents by link or by naming a URL. Such documents can be retrieved by the Customer under the relevant URL and, usually, can also be saved and printed out.
- Changes or additions to the Contract will be agreed in writing for documentation purposes.
- Place of performance is Hamburg, provided that the Customer is a businessperson.
- The performance and legal relationship between the Parties shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- If the Customer is a businessperson, the exclusive place of jurisdiction for all disputes arising from and in connection with the Contract shall be Hamburg; in the event of competence of the local courts, the local court Hamburg-Mitte shall have jurisdiction.
- Should any provision of the Contract between the Parties or of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
[As of December 2022]