Hereafter referred to as the MOD Group – The Terms and Conditions of Use are valid for all contractual partners of the MOD Group:
1. Scope
These Terms and Conditions shall apply to all offers, services and deliveries made by our company. The following Terms and Conditions of Use are also valid for standard software deliveries if not otherwise agreed with the Contractor in separate license and maintenance agreements. Any differing, conflicting or supplementary Terms and Conditions of Use of the Contractor are not binding for the MOD Group, even if the MOD Group does not expressly contradict them.
2. Objective of the Agreement
The objective of this Agreement is the agreed service that according to the principles of professional diligence shall be performed by the MOD Group within the agreed timeframe. The choice of employee shall remain the prerogative of the MOD GROUP. The MOD Group is entitled to avail itself of third parties in order to execute the contract, shall remain however always directly answerable to the client.
3. Offer, Scope of Services
Unlimited offers made by the MOD Group are subject to change and are non-binding unless otherwise expressly agreed. They are an invitation to the Contractor to make an offer on his part to conclude the agreement. Agreements are only concluded upon our written order confirmation or when the order is carried out. The MOD Group shall retain the intellectual property rights to all documents pertaining to the offer made by the MOD Group. They may not be made available to third parties or otherwise be improperly used without the approval of the MOD Group. If the contract is not awarded then any individually prepared documents must be returned immediately without special request and in all other cases upon request. The assignment of tasks, the modus operandi and the nature of the work documents to be provided shall be set out in the written agreements (e.g. offer, order confirmation) of the contractual parties. Any amendments, supplements or extensions to the assignment of tasks, the modus operandi and the nature of the work documents require a special written agreement.
4. Confidentiality, Data Protection
The contractual parties shall undertake to treat as confidential all information made available to them for the purpose of this Agreement by the other party, as well as any knowledge acquired in the course of this collaboration on matters – of a technical, commercial or organizational nature – and for the duration of this Agreement and upon its termination not to make use of or to disclose this information to third parties without the prior written approval of the party concerned. This information may only be used in connection with the execution of this Agreement. This undertaking is binding for both contractual parties even after the Agreement is completed. The MOD Group is entitled for the purpose of this Agreement to process the personal data entrusted to it or have it processed by third parties in accordance with the data protection act. The MOD Group shall process the personal data of the client as instructed in writing according to the legal provisions of § 11 of the Federal Data Processing Act (BDSG). The MOD Group is willing, if requested by the Contractor, to sign additional undertakings.
5. Duty to Cooperate
The Contractor undertakes to support the activities of the MOD Group. In particular he shall provide free of charge all the pre-conditions at his business premises necessary for the proper performance of the Agreement. These pre-conditions shall include amongst other things that the Contractor:
The Contractor vouches that all reports, organization charts, drafts, drawings, tables and calculations prepared by the MOD Group for the purpose of the Agreement shall only be used for his purposes. If the Contractor does not comply with the duty to co-operate or not on a timely basis or not in the agreed manner, then the resulting consequences (e.g. delays, increased costs) shall be borne by the Contractor.
6. Force Majeure
Force majeure in the form of strikes, lockouts, war, raw material and power supply shortages, interruption of operations not caused by the MOD Group and obstructive mandatory regulations shall suspend the contractual obligations of the parties for the length of the disruption and in the scale of its impact, and in so far as it renders the business concerned unprofitable for the foreseeable future. This also applies if force majeure occurs at one of the MOD Group’s suppliers and another supplier option is not available or only at unacceptable conditions.
If the resulting delays exceed six weeks then both contractual parties are entitled to withdraw from the Agreement in respect of the scope of the service affected. In cases of force majeure the Contractor is not entitled to claim for damages.
7. Warranty Claims / Liability
The MOD Group undertakes to carefully perform the contractually agreed services in compliance with the principles of professional diligence.
The Contractor undertakes to inspect the services of the MOD Group for any defects and to reprehend any faults in writing to the MOD Group. Reprehension of obvious defects is timely if the MOD Group s is notified within 7 calendar days after delivery or acceptance ex works; reprehension of non-obvious defects is timely if the MOD Group is also notified within 7 calendar days of discovery. If a defect in the article of sale or work does exist the MOD Group shall decide whether to remedy the defect or supply a new item or produce a new work. The Contractor shall grant the MOD Group an appropriate period to rectify the defect. He must especially ensure that the reprehended article of sale or the reprehended work is made available to the MOD Group or their agent for inspection and rectification. If it is not possible to rectify the defect or if rectification fails or is unreasonably delayed the Contractor may demand diminution of the purchase price. The Contractor may rescind the contract if the contractual parties are unable to agree on the diminution of the purchase price. Rescission presumes an appropriate period of notice with penalty of denial of service.
Warranty claims for material defects fall under the statute of limitations after 1 year from delivery and 1 year after acceptance for services performed. The Contractor may only claim for damages as the result of a defect according to the following terms and conditions if a potential rectification has failed or if the MOD Group refuses to rectify the defect. The Contractor does not forfeit the right to further claims for damages according to the following terms and conditions. The MOD Group is liable, without prejudice to the preceding provisions in Section 7 and the following limitation of liabilities, unrestrictedly for damages to life, body and health that result from the negligent or deliberate breach of duty on the part of the MOD Group, its legal representatives or its vicarious agents, and for damages covered by the liability of the Product Liability Act, and for damages arising from the deliberate and grossly negligent breach of duty or fraudulent intent or acceptance of an independent warranty from the MOD Group. The MOD Group is also liable for damages caused by simple negligence as far as this negligence concerns the breach of basic contractual obligations (cardinal obligation). The MOD Group however is only liable for damages that are typically adherent to the Agreement and that are predictable and limited to the amount covered by the existing company insurance, liability or product liability insurance with current coverage of €100,000.00 or in total €200,000.00 per annum.
The MOD Group is not liable for the simple negligence of duties that are non-critical for the Agreement. The liability limitations set out in the preceding sentences shall also apply to the legal representative, managerial staff and other vicarious agents if claims are directly brought against them. Additional liability is excluded regardless of the legal nature of the claim brought. As far as the liability of the MOD Group is excluded and limited its employees, legal representatives and vicarious agents are not personally liable.
8. Dates
Performance dates and deadlines are binding if these are specified or recognized in the offer or order confirmation from the MOD Group.
Performance deadlines only commence if the parties agree on all the details of the Agreement. Extension of time shall be agreed in writing by mutual agreement.
9. Acceptance Default
In the event that the Contractor is in default with acceptance of the service or neglects or delays any of the cooperation incumbent on him according to §5, MOD Group may withdraw from the contract after setting a period of grace and claim damages. The MOD Group’s rights to claim compensation for any additional expenditure and any other claims for damages remain unaffected.
10. Utilization of Work Results
Intellectual Property Rights
The Contractor may only use the results of all services (works) performed by the MOD Group for his own professional purposes. In paying the fee the Contractor acquires the non-transferable right to use the works of the MOD Group. Copying, distributing, displaying, publicly reproducing and processing works from the MOD Group is not permitted without prior written approval from the MOD Group.
Retention of Title
The MOD Group shall retain title to all items delivered by the MOD Group until payment has been fully made or claims fulfilled arising from the business relationship with the previously named companies of the MOD Group. Reservation of title shall persist until all including future and contingent claims arising from the business relationship between the MOD Group and the Contractor are fulfilled. The MOD Group is entitled to exercise its right to reservation of title without having to simultaneously withdraw from the contract.
11. Duration and Termination of Agreement
The Agreement ends upon expiry of the agreed period or when the agreed services have been performed. The Contractor or the MOD Group can terminate the Agreement prior to expiry without previous notice only for good cause. If the contractual relationship ends prematurely the MOD Group can claim remuneration for work performed up until then. If the Contractor terminates the contractual relationship prematurely the MOD Group shall receive, in addition to the remuneration for work performed, 50% of the agreed remuneration for services not yet performed, if the Contractor is unable to demonstrate lesser damages. Entitlement to claim higher damages shall remain unaffected.
12. Remuneration, Ancillary Expenses, Payment Dates
Remuneration for services invoiced on a time basis is based on an eight hour day with five working days per week. Travel time is calculated as 50% of working time. If not otherwise expressly stated in the offer or the order confirmation from the MOD Group the Contractor shall bear:
• The expenses for accommodation and food for the MOD Group employees deployed at the project location according to the fee table enclosed with the offer
• The Costs for MOD Group employees travelling to and from the project location in compliance with the fee table enclosed with the offer. For longer assignments at a location the employee is entitled to travel home once a week, the cost of which shall be invoiced to the Contractor.
For services that are invoiced on a time basis the MOD Group shall issue a monthly interim invoice, if not otherwise agreed for a particular case.
For fixed price orders the MOD Group shall issue an invoice to the amount of 50% of the order value upon concluding the Agreement. Upon completion of the project the remaining 50% shall be invoiced. For lengthy projects structured into stages invoicing upon completion of each stage can be agreed. Out-of pocket expenses and travel expenses shall be invoiced upon completion of the project if the order is transacted within three months. If transaction takes longer the MOD Group can invoice travel expenses and out-of-pocket expenses at three-monthly intervals. The invoices are payable immediately upon receipt, net. Remuneration and other amounts invoiced (e.g. travel expenses, out-of-pocket expenses, ancillary costs, etc) are exclusive of VAT. The Contractor is only entitled to set-off rights if the Contractor’s claims are undisputed or legally established. The Contractor can only exercise his right of retention if his counterclaim is based on the same contractual relationship. Once 30 days have elapsed after receipt of the invoice the Contractor is automatically in default of payment. From this date interest at 8 percentage points above the base interest rate is payable. The MOD Group reserves the right to claim for higher damages over and above this.
13. Duty of Loyalty
The Contractor and the MOD Group undertake to maintain mutual loyalty. This especially involves refraining from hiring or otherwise employing e for a period of at least 12 months after the project has been completed employees or former employees who have worked on the project
14. Governing Law, Jurisdiction, Place of Fulfilment
This Agreement shall be governed exclusively by the laws of the Federal Republic of Germany. For all disputes arising from the contractual relationship – including cheques or bills of exchange -if the Contractor is a trader, legal person under public law or special fund under public law the suit must be filed at the court of law having jurisdiction for the MOD Group’s place of business. The MOD Group also has the right to take legal action against the Contractor before the courts having general jurisdiction for them. Unless otherwise agreed the MOD Group’s place of business is the place of fulfillment.
January 2008
MOD Group
MOD GmbH & Co.KG | MOD IT GmbH | |
| Grimsehlstrasse 23 | Grimsehlstrasse 23 | |
| 37574 Einbeck | 37574 Einbeck | |
| Tel. +49 55 61 922 0 | Tel. +49 55 61 922 0 | |
| Fax +49 55 61 922 500 | Fax +49 55 61 922 500 |
You are here:
