qcompetence

General Terms and Conditions qcompetence GmbH

1. Applicability

1.1

The following General Terms and Conditions (hereinafter referred to as T&C) shall apply to all services of qcompetence GmbH (hereinafter referred to as “qcompetence”) that are provided to companies as well as legal persons governed by public law and special funds governed by public law (hereinafter referred to as “client”).

1.2

qcompetence is authorized to employ auxiliary persons and sub-contractors in order to fulfill the order.

1.3

These T&C are exclusively applicable: General terms and conditions of the client or of any third party shall only be valid if qcompetence explicitly agrees to them in writing. If the client does not agree with qcompentence’s T&C, he will have to inform qcompetence immediately in writing of such disagreement. In the event of such disagreement, qcompetence reserves the right to withdraw its offer without liability. qcompetence herewith rejects any standard terms and conditions of the client and/or any third party that are also declared applicable.

2. Scope of services

The scope of services (duties and responsibilities, course of action) is to be agreed upon in written form in line with the order. Additions, Amendments or extensions of the scope of services rendered require a written agreement. The requirement for written form is complied with via e-mail.

3. Responsibilities of qcompetence

3.1

qcompetence is obliged to keep all trade secrets and company secrets of the client confidential up to a period of 5 years after termination of consultancy agreement.

3.2

qcompetence is to ensure that its employees, suppliers and sub-contractors are likewise pledged to secrecy.

3.3

All company and business records supplied to qcompetence will be properly stored by qcompetence. The documents shall be returned to the client upon request during the contract period and without further request after termination of contract.

4. Client’s duty to co-operate

4.1

In order to fulfill orders qcompetence requires close collaboration with the client which should be viewed as material contractual obligation. In particular, the client should ensure that qcompetence is provided with the necessary documents in a timely manner and without further request as well as providing qcompetence with the knowledge about all incidents and circumstances that are of relevance for carrying out the order.

4.2

At qcompetence’s request the client is asked to confirm the completeness and accuracy of the submitted documents, information provided and statements given in a separate declaration.

4.3

Should the client not render his obligation of collaboration as agreed upon, consequences shall result thereof and apply, as for example additional services and delays at the expense of the client. qcompetence may invoice the client for the additional expenses.

5. Qualitative disruption of performance

5.1

As far as legal warranty claims exist the following terms of items 5.2- including 5.12 apply.

5.2

qcompetence warrants that shipments and services are not flawed with legal or material defects so that the use agreed upon can be executed. qcompetence will only be under the obligation to assume liability for defects which considerably impair the contractually presumed utilization of the product.

5.3

Should third parties claim infringements on proprietary rights as, for example, patent or copyrights towards clients through the use of qcompetence’s products or works the client must undertake to inform qcompetence within 14 days thereof.

5.4

The guarantee of properties as well as declaration for the undertaking of guarantees by qcompetence must be expressly agreed upon in writing.

5.5

In cases of faulty delivery and/or service, qcompetence commits itself to supplementary delivery or service, which consists, at the option of qcompetence, of the delivery of a fault-free product and/or the production of a new work or the removal of the defect.

5.6

The client undertakes to notify qcompetence of any obvious defects within a period of two weeks. qcompetence should be notified of any hidden defects upon their discovery.

5.7

If the supplementary delivery or service fail or if they are rejected by qcompetence due to relatively high costs or if the supplementary delivery or service are not reasonable for qcomptetence, the client is entitled, at his discretion, to withdraw from the contract or to demand a reduction.

5.8

Unless failure of the obligation to supplementary delivery or services occurs, the client is not entitled to remove defects himself or to demand from qcompetence reimbursement for any expenses incurred.

5.9

Any warranty by qcompetence is excluded in the following cases:

a) Errors which are caused by the influence of force majeure or other external influences,

b) Errors caused by the improper utilization of the product or work, in particular by non-observance of the warnings in the documentation or the intended use,

c) Errors caused by improper interventions by the customer (e. g. modifications, additions or deletions),

d) Errors caused by the repair of the products or work by the customer or third parties, and

e) Errors for which qcompetence is not responsible.

5.10

The warranty obligation for material defects and defective titles which exist at the time of the transfer of risk is subject to a statutory period of limitation of 12 months after the passing of risk.

5.11

In the case of deceitful concealment of a defect by qcompetence, qcompetence will be liable without limitation. The statutory periods of limitation will apply.

5.12

In the case of further claims, in particular for compensations, the limitations of item 14 will apply accordingly.

6. Terms and Conditions of Payment

6.1

The compensation amount as well as the terms and conditions of payment are generally agreed upon on an individual contract basis in the order.

6.2

Prices and other invoiced amounts are stated not including Value Added Tax.

6.3

Travel expenses including accommodation costs are billed on presentation of the original invoices/receipts.

6.4

The total invoice amount is payable without deductions subsequent to receipt of invoice.

6.5

If the client is in default of payment, qcompetence will be entitled to charge default interest at the rate of 8% above the basic interest rate. In cases of repeated default of payment, qcompetence reserves the right to carry out orders partly only against cash in advance. All other rights remain unaffected by this.

6.6

The client may only offset such amount which have been undisputedly determined by qcompetence or established as legally binding.

7. Existing intellectual property of client

7.1

The existing intellectual property of the client as well as its editing, amendments and developments by qcompetence occur for the exclusive use and utilization by the client, whom qcompetence surrenders all rights to.

7.2

The client herewith grants qcompetence a non-exclusive, non-transferable right for the duration of the respective order, to use the intellectual property of the client for the duration of the respective order, insofar as it is necessary in order to fulfill the contractual performance. qcompetence is entitled to make copies of the intellectual property of the client as well as entitled to edit or amend insofar as it is necessary in order to fulfill the contractual performance. The grant of a sub-license or the use by a third party is – subject to a case by case decision to be made – excluded.

8. Existing intellectual property of qcompetence

8.1

The existing intellectual property of qcompetence as well as its editing, amendments and developments remain property of qcompetence.

8.2

qcompetence grants the client a non-exclusive, non-transferrable right to use intellectual property of qcompetence for an unlimited period of time insofar as it is part of the contractual performance. Making copies as well as editing or amending is permissible insofar as it is necessary to use the contractual services.

8.3

Insofar as qcompetence utilizes products of third parties qcompetence ensures that all rights that are required in order to use the contractual services are granted to the client.

9. Rights to the work product

9.1

The data, documents and work results (hereinafter referred to as "work results") created by qcompetence shall become property of the client when being transmitted to same.

9.2

qcompetence is entitled to use the know-how used or acquired by them when rendering contractual services in its own interest, at its own discretion or for the benefit of third parties insofar as commercial or financially confidential information of the client is not revealed.

10. Terms and Conditions of Delivery

10.1

Time periods for delivery and performance which are stated by qcompetence are without obligation, unless their binding force has expressly been agreed upon.

10.2

qcompetence is authorized to carry out partial deliveries to an extent reasonable for the client.

10.3

Should a commitment with regard to delivery and service deadlines be expressly agreed upon contractually between qcompetence and the client and should qcompetence fall behind with the deadlines the following shall apply: should a period of grace not be adhered to by qcompetence, the client is entitled to withdraw from the contract. The client is entitled to further claims for damages only if qcompetence, their legal representatives or auxiliary persons have brought about the delay intentionally or grossly negligent. However, this liability is limited to predictable, typical damages.

11. Termination

The consultancy agreement ends after expiration of the stipulated time. Any termination agreements contrary thereof are to be agreed upon in written form. The right to extraordinary termination for cause shall remain unaffected.

12. Non-solicitation clause

The client is to refrain from measures to entice away employees of qcompetence. This obligation remains for up to one year after termination of contract. Should the client breach this obligation, he is obligated to pay liquidated damages to the amount of 50.000 EUR. The client is allowed proof that the loss occurred to qcompetence through poaching is none or very little.

13. Reservation of the right to rescind

Should qcompetence’s right to compensation be endangered due to impairment of the client’s financial circumstances or should the client have given false information with regard to his credit rating before signing the contract, qcompetence is entitled to rescind the contract provided that qcompetence has not fulfilled the contract yet.

14. Liability

14.1

qcompetence, their legal representatives or auxiliary persons are only liable for damage in cases of willful and grossly negligent breaches of duty.

14.2

The liability for damages from the negligent breach of an essential contractual duty is excluded from item 14.1. Essential contractual duties are obligations whose fulfillment are the basis for the due implementation of the contract and whose fullfilment the client trusts in a particular manner. This liability, however, is restricted to the predictable, typical damage.

14.3

qcompetence’s liability is unlimited for the loss of life, injuries and damage to health. The same applies for the liability according to product liability law, absence of a confirmed feature, deceitful concealment of a defect and acceptance of a guarantee by qcompetence.

14.4

Liability in cases of damage caused by force majeure is excluded.

14.5

Any liability for further damages or any claims for reimbursement of expenses is excluded.

15. Force Majeure

Should qcompetence’s services be considerably hindered or made impossible due to force majeure, qcompetence is entitled to set back the fulfillment of the contract for the duration of the hindrance as well as for an appropriate start-up time. As force majeure will be considered strike, lockout or like circumstances, insofar as they are unpredictable, profound and unintentional. Should such circumstance occur qcompetence will immediately inform client thereof.

16. Final provisions

16.1

The place of performance is qcompetence’s place of business.

16.2

Exclusive legal venue is Munich.

16.3

German law is applicable under exclusion of its law of conflict and the convention of the United Nations on contracts for the international sale of goods (CISG).

16.4

Amendments, supplements, as well as subsidiary agreements for these General Terms and Conditions must be made in writing. Any agreement cancelling the requirement of written form must also be completed in writing.

16.5

Should one or several provisions of these General Terms and Conditions become fully or partially legally invalid, this will not affect the validity of the other provisions.

16.6

The German language version of these T&C’s shall prevail and is agreed to be the definitive version of these T&C’s.