The German original version of these Terms and Conditions shall be the only legally binding version. 
The English translation is provided solely for reference purposes and shall have no legal effect.

A. General Terms and Conditions for the Provision of IT Services - as of April 2023 

§ 1 Scope of Application; Deviating Terms of the Customer 

(1.1) These General Terms and Conditions for the Provision of IT Services (“IT Services GTC”) apply to rising systems AG (hereinafter “rising systems”) and apply in particular to the consulting, training, assistance/support, installation, implementation, maintenance, support and/or customization and development services for software products offered by it (hereinafter referred to as “IT Services”).

(1.2) These IT Services GTC apply exclusively vis-à-vis entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e., natural or legal persons who, when concluding a legal transaction, act in the exercise of their commercial or self-employed professional activity. Any company that concludes a contract with rising systems for the provision of IT Services incorporating these GTC is hereinafter referred to as the “Customer” (the “IT Service Contract”).

(1.3) The business relationship between rising systems and its customers regarding IT Services is governed exclusively by the GTC of rising systems and any individual contractual agreements entered into with the customer. Deviating general terms and conditions of the customer—particularly general purchasing terms—shall apply only if and to the extent that rising systems expressly acknowledges them in writing. Silence on the part of rising systems in response to such deviating terms shall not constitute acknowledgment or consent, even for future contracts. If the GTC of rising systems have been incorporated into the business relationship with the customer, they shall also apply to all further business relationships of the same kind between the customer and rising systems, unless expressly agreed otherwise in writing.

(1.4) These IT Services GTC shall apply in lieu of any general terms and conditions of the customer even if, according to the customer’s terms, acceptance of an order is deemed unconditional acceptance of the customer’s general terms and conditions, or if rising systems performs after the customer has pointed out the applicability of its terms, unless rising systems has expressly waived the applicability of these IT Services GTC in writing

(1.5) The documents referenced in these IT Services GTC, in particular the service description and/or the offer of rising systems for the performance of the specific IT Services, are integral components of the IT Service Contract concluded between the parties. References to documents relate, unless expressly provided otherwise, to the respective version of the documents as in force from time to time.

(1.6) Absent an express provision in the IT Service Contract, rising systems provides the IT Services for the customer as support services on a service-contract basis within the meaning of Sections 611 et seq. BGB, without owing a specific result.

(1.7) If and insofar as rising systems has agreed in the IT Service Contract to achieve a specific result in providing the IT Services, e.g., for the development of customer-specific software and/or in the context of a software implementation, the “Supplementary Conditions for IT Services under a contract for work and services” printed below under Section B shall apply in addition.

§ 2 Conclusion of Contract; Subject Matter and Scope of Services

(2.1) Offers made by rising systems are subject to change and non-binding unless designated as binding. If the customer places an order on the basis of such non-binding offers, a contract—also in ongoing business relations—shall only be concluded upon written order confirmation by rising systems (email or fax sufficient) if the customer requests such confirmation. In all other cases, the contract is concluded by performance of the delivery/service. If rising systems issues an order confirmation, it alone shall be authoritative for the content of the contract, in particular for the scope of the IT Services and the delivery time.​

(2.2) The subject matter of the IT Service Contract is the IT Services specified in the offer or in a separate service description or service level agreement, 

not a specific (economic) success. rising systems shall provide the IT Services applying the generally recognized rules of technology prevailing at the time of performance and in compliance with the agreed requirements.

(2.3) If the factual or legal situation changes after submission of the final work result, rising systems is not obliged to inform the customer of such changes or the consequences arising therefrom.

(2.4) Where rising systems is required to present results in writing within the scope of performance, only such written presentation shall be decisive. Drafts of written presentations are non-binding. Oral statements and information provided by rising systems shall be binding only if confirmed in writing by rising systems. Statements and information provided outside the scope of the assignment are always non-binding.

(2.5) A guarantee shall be deemed assumed by rising systems only if rising systems has designated a property and/or a performance result as “legally guaranteed” in writing.

(2.6) Data supplied by third parties at the request or instigation of the customer, or supplied by the customer itself, shall be the sole responsibility of the customer and, absent an express assignment, shall be checked only for plausibility and not validated by rising systems. The conclusions and recommendations to be derived from rising systems’ IT Services are provided to the best of knowledge and in accordance with recognized rules of technology.

(2.7) Unless otherwise agreed in writing or in text form, rising systems may, at its own discretion, engage qualified subcontractors to perform the order.

2.8) Any change requests by the customer regarding the contractually agreed IT Services shall be examined by rising systems and accommodated at its own discretion, provided this is possible within capacity and within effort and time planning. If such changes affect the contractual terms, the parties shall agree on an adjustment of the contract, in particular with respect to remuneration and performance times/deadlines. If no agreement is reached, rising systems is not obliged to perform the customer’s change request with respect to the agreed IT Services.

(2.9) Insofar as, within the scope of the IT Services, rising systems owes maintenance and/or support for software and no deviating provisions have been agreed in the IT Service Contract, the following shall apply: 

rising systems is not obliged to continuously adapt the software to changing legal framework conditions (i.e., mandatory laws, statutory instruments, regulatory requirements) or due to changing requirements within the customer’s sphere.

Any patches/updates/upgrades/releases to be provided by rising systems within the scope of maintenance and/or support shall be made available to the customer in object code form at rising systems’ equitable discretion (i) as an electronic download via the internet or (ii) on a customary data carrier, once released by rising systems or the relevant manufacturer. Proper and compliant installation of the patches/updates/upgrades/releases is the customer’s responsibility. For installation, the installation instructions described in the manufacturer’s product description and/or user documentation—especially the required hardware and software environment at the customer—must be observed.​

§ 3 Performance Periods, Service Hours, Delay, Response and Resolution Times

(3.1) Binding performance dates and deadlines must be expressly agreed in writing. A fixed-date transaction shall exist only if rising systems has expressly confirmed such fixed-date character in writing or if the legal requirements for a fixed-date transaction are met.

(3.2) Unless otherwise agreed, rising systems is obliged to perform the commissioned IT Services only during service hours (Monday–Thursday 9:00 a.m.–5:00 p.m., Friday 9:00 a.m.–2:30 p.m., excluding public holidays at the registered office of rising systems and the period from and including December 24 to and including December 31) (the “Service Hours”). IT Services performed outside the Service Hours shall be remunerated with appropriate surcharges for overtime, night work, weekend work and public holiday work per commenced hour per employee. Such surcharges shall be deemed appropriate in particular if they result from collective bargaining agreements or other applicable internal company regulations, which rising systems shall demonstrate to the customer upon request.

(3.3) If no specific dates but a deadline is agreed for the performance of the IT Services, such deadline shall not commence until all details of the execution of the order have been clarified and all prerequisites to be fulfilled by the customer have been met, in particular agreed advance payments have been made and necessary information has been provided. The same applies to performance dates. If the customer requests changes after the order has been placed, a new reasonable performance period shall commence upon confirmation of the change by rising systems.

(3.4) If rising systems is in default of performance, the customer must first grant rising systems a reasonable grace period of at least fourteen (14) working days, unless such grace period is unreasonable in the individual case. Working days are Monday through Friday, excluding public holidays at the registered office of rising systems. If this grace period expires without success, claims for damages due to breach of duty—irrespective of the legal basis—shall exist only in accordance with this Section 3 and Section 9. rising systems shall not be in default as long as the customer is in default with the fulfillment of obligations vis-à-vis rising systems, including obligations arising from other contracts.

(3.5) Close cooperation between the customer and rising systems is required for performance. Both parties shall inform each other of all circumstances within their respective spheres that may affect performance. Responsibility for project management and project success remains with the customer. Irrespective thereof, rising systems remains responsible for the contractual performance of the IT Services owed by it.

(3.6) If binding response and/or recovery times are agreed in the IT Service Contract, the following supplementary provisions shall apply:

Response time is the period within which the performance of the IT services is commenced (e.g. the remediation of a disruption). The period shall commence upon receipt of the relevant notification by rising systems or upon the occurrence of an agreed event within the Service Hours and shall run exclusively during the agreed Service Hours. If a notification is received or an agreed event occurs outside the agreed Service Hours, the response time shall commence at the beginning of the next Service Hours.

Resolution time is the period within which rising systems endeavors to finally resolve a disruption or another work order, if necessary also by means of reasonable workaround solutions, within the scope of the technical and operational capabilities of rising systems. Resolution times shall run exclusively during the agreed Service Hours. For resolution times, periods that lead to delays in the performance of services despite reasonable efforts by rising systems shall not be taken into account, such as: outstanding cooperation actions by the customer, delivery times for required spare parts (unless inventory stocking has been expressly agreed), and, where manufacturer bug fixes for hardware/software are required, the periods until such fixes are provided by the manufacturer. Even in the aforementioned cases, rising systems shall, to the best of its ability, propose interim measures aimed at minimizing any adverse impact on the customer.

§ 4 Customer’s Obligations to Cooperate

(4.1) The customer shall designate to rising systems a contact person as the central point of contact for all project-related matters for the agreed performance period, who is authorized to make binding decisions on behalf of the customer during contract performance and is available for the exchange of necessary information. Required decisions by the customer shall be brought about without delay by the contact person and should be jointly documented in writing by the parties as promptly as possible.

(4.2) The customer shall ensure that all cooperation required for the performance of the IT Services is provided in a timely and complete manner and free of charge for rising systems.

(4.3) The customer shall ensure that its employees who support rising systems in performing the services are available at the agreed times. The customer is responsible for ensuring that its employees possess the necessary knowledge, skills and experience to perform the tasks assigned to them.

(4.4) The customer is obliged to provide appropriate support to rising systems in the course of service performance and, in particular, to create all prerequisites within its operational sphere that are necessary for rising systems to properly perform the IT Services.

a) to provide rising systems in a timely manner with all documents and further information necessary for the performance of the IT Services;

b) to inform rising systems of all processes and circumstances that may be relevant to the performance of the IT Services; this also applies to circumstances that become known only during rising systems’ activities;

c) upon request by rising systems, to confirm in writing the completeness of the documents and information provided as well as the information and declarations given;

d) to make decisions incumbent upon the customer regarding the performance and content of IT Services without delay and notify rising systems thereof, and to promptly review change proposals made by rising systems;

e) to inform rising systems without delay of legal framework conditions originating from the customer’s sphere insofar as these give rise to specific requirements for the IT Services;

f) to provide rising systems, if necessary and to the required extent, with rooms and workplaces;

g) to grant employees of rising systems remote access to the customer’s computers for service performance during the customer’s normal business hours;

h) Any further obligations to cooperate or provide resources may be set out in the offer or a separate service description.​

(4.5) As long as the customer’s cooperation is not provided in accordance with the contract, rising systems shall be wholly or partially released from its own performance obligations to the extent that it depends on such cooperation. rising systems shall not be responsible for performance disruptions resulting from the customer’s failure to provide cooperation in accordance with the contract. Any additional effort incurred by rising systems as a result may be invoiced separately on a time-and-materials basis. Further claims remain unaffected.

(4.6) The cooperation obligations to be performed by the customer constitute a genuine contractual obligation toward rising systems and not merely an obligation of conduct. If the customer fails to perform the required cooperation obligations or fails to perform them in accordance with the contract, and this affects the IT services to be provided by rising systems, rising systems shall be released from the obligation to perform the affected IT services. The corresponding performance deadlines shall be extended by a reasonable period of time. Any additional expenses incurred by rising systems as a result shall be remunerated separately on the basis of the agreed terms and conditions, without prejudice to further rights. Any further claims shall remain unaffected.

§ 5 Completion and Finalization of the IT Services, Performance Defects and Exclusion of Warranty 

(5.1) Unless otherwise agreed, rising systems shall notify the customer of the completion of the IT Services. Such notification shall also be deemed to exist upon transmission of any agreed work result, report, statement, messages via a ticket system, etc. The IT Services shall thereby be deemed rendered and performed.

(5.2) The customer shall inform rising systems immediately in writing or in text form if it becomes aware that a service provided by rising systems has not been rendered in accordance with the contract. The customer shall specify the non-contractual performance as precisely as possible.

(5.3) Insofar as the non-contractual performance is attributable to rising systems and the customer has complied with its notification obligation pursuant to Section 5.2, rising systems shall initially be entitled and obliged to subsequently render the affected service in accordance with the contract within a reasonable period and at no additional cost to the customer, provided this is possible and does not involve disproportionate expense for rising systems.

(5.4) To the extent that subsequent performance of the non-contractual performance is not possible, is rejected by rising systems due to disproportionate costs, or fails in material respects within a reasonable grace period set by the customer for reasons attributable to rising systems, the customer shall be entitled to terminate the IT Service Agreement without notice for good cause. In such case, rising systems shall be entitled to remuneration for the IT services performed up to the effective date of termination. However, the claim to remuneration shall not apply to such IT services that, as a result of the termination, are of no interest to the customer. The customer shall, within two (2) weeks after receipt of the termination notice, provide rising systems with a substantiated written explanation specifying which IT services are affected.  

(5.5) Any further claims due to qualitative performance defects are excluded. This shall not apply in cases of intent or gross negligence on the part of rising systems or in the event of injury to life, body or health.

(5.6) Claims arising from performance disruptions shall become time-barred one (1) year from the statutory commencement of the limitation period. The above limitation period shall not apply to performance disruptions caused by intentional or grossly negligent conduct of rising systems, nor in cases of injury to life, body, or health. In such cases, the statutory limitation period shall apply.

(5.7) If rising systems performs services to investigate or remedy alleged performance defects without being obliged to do so, rising systems shall be entitled to demand reasonable remuneration on a time-and-materials basis if the customer has at least grossly negligently failed to recognize that no performance defect existed.

(5.8) If the performance defect constitutes an infringement of third-party intellectual property rights, Section 10 shall apply.

(5.9) Any acknowledgment of breaches of duty must always be made in writing.

(5.10) To the extent that the customer is granted its own administrative access to the software subject to the contract, rising systems shall assume no warranty and no liability for any malfunctions of the software caused by the use of such administrative access. The above exclusion of warranty and liability shall not apply, however, if the customer proves that the malfunction of the software that occurred is not causally related to the customer’s use of the administrative access.

§ 6 Remuneration; Payment Terms

(6.1) The remuneration for the IT Services rendered shall be determined by the IT Service Contract. Unless otherwise agreed therein, the customer shall owe remuneration on a time-and-materials basis in the form of daily rates in accordance with the generally applicable price list of rising systems valid at the time the contract is concluded. In the case of time-and-materials remuneration, rising systems shall be entitled to invoice the remuneration after performance, including partial performances, at least on a monthly basis in arrears. If no remuneration has been agreed, rising systems shall be entitled to the customary market remuneration, unless specific IT Services have expressly been agreed to be provided free of charge.

(6.2) If remuneration on a time-and-materials basis has been agreed and no deviating provisions are set out in the IT Service Contract, the following shall additionally apply:

• Travel expenses, material costs, expenses, and/or other ancillary costs are not included in the daily rates and shall be charged additionally. Waiting times of rising systems’ employees attributable to the customer shall be remunerated as working time. However, rising systems shall allow to be offset what rising systems has saved as a result of not performing the IT services or has earned, or maliciously failed to earn, through other use of the IT services.
• The daily rates cover a working time of eight (8) hours, and billing shall be carried out in half-hour increments. Any work in excess thereof per day shall be invoiced on a pro rata basis. In the case of weekend and public holiday work, as well as services performed outside the Service Hours, the agreed surcharges shall be added. Travel time of rising systems’ employees to and from the customer’s place of business, as well as IT services performed by rising systems at other locations at the customer’s request, shall be charged by rising systems for the respective employees’ travel time at the agreed daily rate.
• To the extent that rising systems submits effort/time records to the customer, the customer shall review them without undue delay and, as a sign of its consent, sign and thereby approve them no later than within fourteen (14) calendar days after receipt. If the customer does not agree with the submitted records, it shall set out any objections to the records in detail and in writing within this period. The parties shall then promptly seek to reach a clarification. If the customer does not raise any objections to the records within the aforementioned period, the effort/time records shall be deemed approved, provided and to the extent that rising systems has indicated the deemed-approval effect in the records.

(6.3) All prices of rising systems are generally stated in euros (EUR) plus value added tax (VAT) to be borne by the customer at the statutory rate applicable from time to time. VAT shall be shown separately on the invoice. Prices and price surcharges shall be determined in accordance with the generally applicable price list of rising systems valid at the time of conclusion of the contract, unless otherwise agreed.

(6.4) rising systems shall be entitled, at its reasonable discretion (§ 315 German Civil Code (BGB), subject to judicial review pursuant to § 315 (3) BGB), to unilaterally increase the prices for the IT services in the event of increases in manufacturing, material and/or procurement costs, wage and ancillary wage costs, social security contributions, as well as energy costs and costs resulting from statutory requirements, environmental regulations, currency regulations, customs changes, and/or other public charges, provided that such increases directly or indirectly affect the costs of the contractually agreed IT services and increase such costs by more than 5%, and provided further that more than two (2) months elapse between conclusion of the contract and delivery/performance. An increase within the meaning set out above shall be excluded to the extent that a cost increase in one or more of the aforementioned factors is offset, with respect to the overall cost burden for delivery/performance, by a cost reduction in other of the aforementioned factors (cost netting). If the aforementioned cost factors are reduced without such reduction being offset by an increase in other of the aforementioned cost factors, the cost reduction shall be passed on to the customer by way of a price reduction. If, as a result of the aforementioned price adjustment right of rising systems, the new price is 25% or more above the original price, the customer shall be entitled to withdraw from contracts that have not yet been fully performed, with respect to the part of the contract not yet performed. However, the customer may exercise this right only without undue delay after notification of the increased remuneration.

(6.5) Unless otherwise agreed, in the event that the anticipated execution period exceeds ninety (90) days, rising systems shall be entitled to require an advance payment in the amount of one third (1/3) of the agreed net total remuneration upon conclusion of the contract, plus value added tax (VAT).

(6.6) Invoices issued by rising systems shall be payable within fourteen (14) days after receipt of the invoice, without any deductions (e.g. cash discounts), unless otherwise agreed in writing. The date of payment shall be deemed to be the date on which the funds are received by rising systems or credited to the account of rising systems.

(6.7) The customer shall have a right of retention or set-off only with respect to counterclaims that are undisputed or have been finally adjudicated. A right of retention may be exercised by the customer only to the extent that the counterclaim is based on the same contractual relationship.

§ 7 Rights of Use, Disclosure of Work Results, Source Code

(7.1) All IT Services and work results contractually agreed and provided by rising systems are intended exclusively for the customer and for use solely for the purposes specified in the IT Service Contract.

(7.2) rising systems shall remain the owner of all work results that are protected or capable of being protected by industrial property rights or similar rights of any kind (e.g. patent rights, trademark rights, utility model rights, design rights, copyrights), whether registered or not, and to which rising systems is entitled at the time of conclusion of the IT Service Contract or which are created after conclusion of the contract by rising systems or by third parties on behalf of rising systems (hereinafter “Work Results”). The same shall apply to adaptations, modifications and further developments of the Work Results.

(7.3) Upon full payment of the agreed remuneration, rising systems grants the customer a non-exclusive, perpetual, non-transferable right to use those Work Results created specifically for the customer under the IT Service Contract and designated as such in the offer or a separate service description, to the extent required by the purpose of the IT Service Contract. The right of use is limited to use within the Federal Republic of Germany and any additional destination country agreed between the parties. Insofar as the Work Results constitute software, the right of use shall relate to the object code and the user documentation. Unless otherwise agreed in the IT Service Contract, no rights to the source code shall be granted and delivery of the source code shall not be owed.

(7.4) The disclosure of work results (or excerpts of work results—whether in draft or final form) or the disclosure of information regarding the activities of rising systems for the customer to a third party shall require the prior written consent of rising systems, unless (i) consent to such disclosure or information already arises from the purpose of the IT Service Agreement, or (ii) the customer is obliged to make such disclosure or provide such information pursuant to a law or an official order.

(7.5) To the extent that the work results include standard software of a third party (hereinafter referred to as “Third-Party Software”), the relevant license terms and conditions of the respective software manufacturer shall apply with priority to the use of such Third-Party Software. The customer undertakes to comply fully and at all times with the respective license terms and conditions. The offer of rising systems shall either include the license terms and conditions applicable to the respective Third-Party Software, or rising systems shall refer in the offer to the software manufacturer’s website where the customer may review and download the license terms and conditions. In order to use Third-Party Software, it may additionally be necessary for the customer to declare its consent to the applicability of the respective software manufacturer’s license terms and conditions during the installation process. To the extent that the customer has separately commissioned rising systems to install the Third-Party Software, rising systems is authorized by the customer to submit such declaration of consent in the name of the customer and thereby to bind the customer vis-à-vis the software manufacturer to comply with the license terms and conditions.

(7.6) To the extent that the work results constitute software, the following shall apply: The customer shall not be granted any rights to modify the software and may carry out modifications only to the extent expressly permitted by mandatory statutory provisions or expressly agreed by contract. rising systems points out that even minor modifications may lead to significant and unforeseeable disruptions in the operation of the software. The customer shall be entitled to decompile the software only within the limits of § 69e of the German Copyright Act (UrhG), and only if rising systems, after written request and expiration of a reasonable deadline, has failed to provide the necessary data and/or information required to establish interoperability with other hardware and software.

(7.7) Copyright notices, serial numbers, version numbers, trademarks, or other identifying features of the software may not be altered or removed under any circumstances. The same shall apply to the suppression of the on-screen display of such features.

§ 8 Export Control Regulations

The parties are aware that software may be subject to export restrictions that must be observed by the customer. In particular, the customer shall not be entitled to export such software to countries that are listed on an embargo list under German law, EU law, or other applicable national law.

§ 9 Liability, Exclusion and Limitation of Liability

(9.1) rising systems shall be liable without limitation for damages caused intentionally or by gross negligence, for damages resulting from injury to life, body or health, and for damages giving rise to liability under Section 1 of the German Product Liability Act (ProdHaftG).

(9.2) In cases of simple negligence, rising systems shall be liable only in the event of a breach of essential contractual obligations, the fulfillment of which is a prerequisite for the proper performance of the IT Service Contract and on whose compliance the customer may rely. Otherwise, liability for damages caused by simple negligence is excluded. Section 9.1 remains unaffected.

(9.3) In the event of a simply negligent breach of essential contractual obligations, the liability of rising systems shall be limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract. The typical, foreseeable damage is the damage that rising systems foresaw as a possible consequence of a breach of contract at the time the contract was concluded or should have foreseen exercising due commercial care. Indirect damages and consequential damages shall be compensable only insofar as such damages are typically to be expected when the IT Services are used as intended. Section 9.1 remains unaffected.

(9.4) The liability of rising systems shall be limited to EUR 5,000.00 per damaging event in the cases referred to in § 893. If, in the customer’s view, the foreseeable contractual risk exceeds this maximum liability amount by more than an insignificant degree, rising systems shall be prepared, against appropriate remuneration for the assumption of such risk, to agree on an appropriately higher liability amount, provided that insurance coverage can be arranged for this purpose.

(9.5) In the event of data loss or data destruction, rising systems shall be liable only to the extent that rising systems has caused such destruction intentionally, by gross negligence, or as a result of a breach of a material contractual obligation. In the aforementioned case, the liability of rising systems for the simple negligent breach of a material contractual obligation shall be limited in amount to the damage that would have occurred even if the customer had performed proper data backup.

(9.6) If several claimants derive claims against rising systems under the IT Service Agreement from a breach of material contractual obligations (§ 9.3) by rising systems caused by simple negligence, the maximum liability amount specified in § 9.4 shall apply in total to the claims of all such claimants. The maximum liability amount shall be available to the customer and the other claimants only jointly and on a one-time basis (joint and several creditors pursuant to § 428 German Civil Code (BGB)). § 334 German Civil Code (BGB) shall apply mutatis mutandis.

(9.7) The above limitations of liability shall also apply to the personal liability of employees, representatives and corporate bodies of rising systems.

(9.8) Claims for damages and claims for reimbursement of futile expenses of the customer shall become time-barred within one (1) year; with regard to the commencement of the limitation period, § 199 (1) of the German Civil Code (BGB) shall apply. This shall not apply to claims for damages and claims for reimbursement of futile expenses arising from injury to life, body, or health, to claims under the Product Liability Act, or to breaches of a quality guarantee. This shall further not apply to claims based on an intentional or grossly negligent breach of duty by rising systems or by a legal representative or vicarious agent of rising systems.

§ 10 Third-Party Intellectual Property Rights

(10.1) rising systems shall ensure that no third-party rights exist that impede, restrict, or exclude the customer’s contractual use of the work results created by rising systems under the IT Service Agreement. Should third parties nevertheless assert justified claims due to the infringement of their rights and the customer be legally prohibited, in whole or in part, from using the work results by a final and binding decision, rising systems shall be liable to the customer as follows, provided and to the extent that fault can be attributed to rising systems in this respect:

(10.2) rising systems shall only be obliged to provide the IT services and the work results achieved free from third-party rights or claims which (i) impede, restrict, or exclude the contractual use of the IT services and/or the work results, (ii) are based on industrial property rights or other intellectual property, and (iii) were known to rising systems at the time of conclusion of the contract or were not known due to gross negligence, provided that such right or claim is based on industrial property rights or other intellectual property

a) of the law of the Federal Republic of Germany, if the customer has its registered office or establishment there; or

b) of the law of a third country only if rising systems and the customer have expressly agreed in writing on the use of the IT Services and work results in that third country.

(10.3) If a third party asserts justified claims against the customer of rising systems with respect to the work results that are the subject matter of the contract pursuant to § 10.1 above, rising systems shall be liable to the customer as follows within the period specified in § 8.8:

a) At the discretion of rising systems, rising systems shall initially attempt, at its own expense, either to obtain a right of use for the relevant work results or to modify the work results in such a way that the intellectual property right is not infringed.  If this is not possible for rising systems on reasonable terms, the customer shall be entitled to its statutory rights, which shall, however, be governed by these IT Services General Terms and Conditions. Visuelle Elemente: Keine.

b) The customer shall be obliged to inform rising systems in writing without undue delay of any claims asserted by a third party, not to acknowledge any infringement, and to reserve to rising systems all defensive measures and settlement negotiations. If the customer discontinues the use of the IT services and/or the work results for reasons of damage mitigation or other material reasons, the customer shall be obliged to inform the third party that such discontinuation of use does not constitute an acknowledgment of an infringement of intellectual property rights. If, as a result of the use of the IT services and/or the work results, the customer is pursued by third parties for alleged infringements of intellectual property rights, the customer undertakes to inform rising systems thereof without undue delay and to give rising systems as well as, where applicable, affected upstream suppliers of rising systems (e.g. a software manufacturer from whom rising systems has obtained Third-Party Software) the opportunity to participate in any potential legal proceedings. The customer shall support rising systems and, where applicable, the upstream suppliers of rising systems in every respect in the conduct of such legal proceedings. The customer shall refrain from any actions that could impair the legal position of rising systems or of the upstream suppliers of rising systems.

(10.4) The obligations of rising systems pursuant to § 10.2 and § 10.3 shall not extend to cases in which

a) in which the infringement of intellectual property rights results from the fact that rising systems has aligned the work results with information or other specifications provided or prescribed by the customer to rising systems; or

b) in which the infringement of intellectual property rights is caused by an application by the customer that was not foreseeable by rising systems, or by the fact that the work results are modified by the customer or combined with or used together with products not supplied or IT services not provided by rising systems; or

c) in which the infringement of intellectual property rights is caused by use of the deliveries or IT services in an application or usage environment that has not been contractually agreed.

(10.5) Liability under Section 11 remains unaffected.

§ 11 Confidentiality, Data Protection

11.1) The customer undertakes to keep confidential all facts, documents and knowledge that become known to it in the course of the business relationship with rising systems and that contain technical, financial, business or market-related information about rising systems, provided that rising systems designates such information as confidential or has an obvious interest in its confidentiality (hereinafter collectively referred to as “Confidential Information”). The customer shall use the Confidential Information exclusively for the purpose of the contractual implementation and performance of the contractual relationship and the individual contracts based thereon.

(11.2) The disclosure of confidential information by the customer to third parties shall require the express prior written consent of rising systems.

(11.3) The confidentiality obligation pursuant to § 11.1 above shall not apply to the extent that the respective confidential information demonstrably:

a) is or becomes generally known without fault of the customer;

b) was already known to the customer or is disclosed by a third party authorized to do so;

c) is developed by the customer without any involvement of rising systems and without using other information or knowledge obtained through the contractual relationship; or

d) must be disclosed due to mandatory statutory provisions or pursuant to judicial or administrative orders.

Section 5 of the German Trade Secrets Act (GeschGehG) remains unaffected.

(11.4) The customer shall be responsible for compliance with all applicable statutory data protection provisions, in particular for the lawfulness of the disclosure and processing of personal data of its employees and other data subjects in connection with the provision of services by rising systems. rising systems shall process the customer’s personal data solely within the scope of the contractually owed performance of services and in accordance with applicable data protection laws.

(11.5) The parties shall process personal data in compliance with the applicable data protection provisions, in particular Regulation (EU) 2016/679 (General Data Protection Regulation – GDPR).

(11.6) With regard to the customer’s personal data, rising systems shall comply with the applicable statutory data protection provisions. Personal data of the customer shall be collected, stored, processed, and used by rising systems if, to the extent, and for as long as this is necessary for the initiation, performance, or termination of the IT Service Agreement with the customer. Any further collection, storage, processing, and use of the customer’s personal data shall take place only to the extent required or permitted by law or where the customer has given its consent. The customer is aware that, for the implementation of pre-contractual measures and the performance of the contract with the customer, the collection, processing, and use of the contact details of the customer’s contact persons (name, email addresses, etc.) is necessary on the basis of Article 6(1)(b) GDPR. In particular, rising systems shall be entitled to transfer such data to third parties if and insofar as this is necessary for the implementation of pre-contractual measures and the performance of the contract (e.g. for delivery, invoicing, or customer support) pursuant to Article 6(1)(b) GDPR or for compliance with a legal obligation within the meaning of Article 6(1)(c) GDPR. rising systems may further transfer such data to third parties (e.g. debt collection agencies) for the purpose of enforcing claims, in accordance with Article 6(1)(b) and/or (f) GDPR.

(11.7) The data protection notices of rising systems are available at https://www.rising-systems.de/imprint-rising-systems-ag.. 

(11.8) To the extent that rising systems processes personal data on behalf of the customer in the course of performing the IT Service Agreement, rising systems shall process such personal data solely within the scope of the contractually owed performance of services or in accordance with other written instructions of the customer, and in compliance with applicable data protection laws. The parties shall set out the details of the processing on behalf in a separate “Agreement on the Processing of Personal Data on Behalf.” Within its scope of application, such agreement shall take precedence over the provisions of these IT Services General Terms and Conditions.

§ 12 Reservation of Self-Supply, Force Majeure and Other Impediments 

(12.1) If, for reasons for which rising systems is not responsible, rising systems does not receive the IT services required for the performance of its obligations from its subcontractors, despite proper and sufficient procurement prior to contract conclusion, or does not receive them correctly or on time, or if events of force majeure occur, rising systems shall inform the customer thereof in writing or in text form without undue delay. In such case, rising systems shall be entitled to postpone the performance of the IT Services by the duration of the impediment or to withdraw in whole or in part from the contract with respect to the unperformed portion, provided that rising systems has complied with its duty to inform. Events of force majeure include, in particular, strikes, lockouts, war, governmental interventions, epidemics and pandemics including their unforeseeable effects, shortages of energy and raw materials, cyberattacks, non-culpable transport bottlenecks, non-culpable operational disruptions (e.g. caused by fire, water or machine damage), and all other events which, from an objective perspective, were not caused by fault on the part of rising systems.

(12.2) If a binding performance date has been agreed and is exceeded due to an event pursuant to Section 12.1, the customer shall be entitled to withdraw from the contract with respect to the unperformed part only after the unsuccessful expiry of a reasonable grace period, provided that continued adherence to the contract is objectively unreasonable for the customer and the event lasts longer than two (2) months. In such case, any further claims of the customer, in particular claims for damages, are excluded. The customer shall be obliged to remunerate the IT Services rendered up to that point in accordance with the contractual agreements.

§ 13 Term and Termination, Written Form, Place of Performance, Jurisdiction, Governing Law

(13.1) If the term of the IT Service Contract is neither agreed nor can be inferred from the nature or purpose of the IT Services, either party may terminate the contract in whole or in part by giving three (3) months’ notice to the end of a calendar month, but not earlier than the expiry of any minimum contract term agreed in the IT Service Contract. A different notice period may be agreed in the IT Service Contract. In addition, either party may terminate the IT Service Contract for good cause without observing a notice period within a reasonable time after becoming aware of the reason for termination. Good cause exists if, taking into account all circumstances of the individual case and weighing the interests of both parties, continuation of the contract can no longer reasonably be expected of the terminating party. If the good cause consists of a breach of contractual duty, termination shall only be permissible after the unsuccessful expiry of a grace period set for remedy or after an unsuccessful warning, unless the setting of a deadline is dispensable pursuant to Section 314 in conjunction with Section 323 (2) BGB. In the event of termination for good cause, rising systems shall be entitled to remuneration for the IT Services rendered up to the effective date of termination. However, remuneration shall not be owed for those IT Services for which the customer demonstrates that, as a result of the termination, they are of no interest to the customer.

(13.2) The place of performance for all contractual obligations shall be the registered office of rising systems.

(13.3) rising systems shall be entitled at any time to transfer the rights and obligations arising from this contract to affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG).

(13.4) All agreements, ancillary agreements, assurances and amendments to the contract must be made in writing. This also applies to any waiver of the written form requirement itself. The written form requirement shall also be satisfied by transmission via fax, email, or digital/electronic signatures (e.g. DocuSign). The precedence of individual contractual agreements pursuant to Section 305b BGB remains unaffected.

(13.5) To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising out of or in connection with the IT Service Contract shall be Düsseldorf, Germany. However, rising systems shall also be entitled to sue the customer at the customer’s general place of jurisdiction. This jurisdiction agreement shall not apply where mandatory statutory jurisdiction applies.

(13.6) All legal relationships between the customer and rising systems shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

B. Supplementary Terms for Work-Contract IT Services – as of April 2023  

§ 1 Scope of Application

These Supplementary Conditions for IT Services under a contract for work and services (hereinafter the “Supplementary Conditions”) apply in addition to the foregoing IT Services GTC if, under the IT Service Contract, rising systems owes a specific result in the provision of the IT Services and the law governing contracts for work and services applies, e.g. in the case of software development or customer-specific software adaptations within the scope of a software implementation. In the event of any conflict between the IT Services GTC and these Supplementary Conditions, the Supplementary Conditions shall prevail.

§ 2 Scope of Services 

(2.1) The IT Services to be provided by rising systems and the work results to be achieved shall be defined in the IT Service Contract.

(2.2) To the extent that IT services are performed on the customer’s premises, the customer shall not be entitled to issue instructions to the consultants deployed by rising systems. The consultants shall not be integrated into the customer’s business organization. The customer may issue instructions only to the contact person of rising systems designated for project coordination in the IT Service Agreement, and not directly to the individual consultants.

(2.3) The customer shall bear the risk that the IT services agreed under the IT Service Agreement, as well as the work results to be achieved, meet the customer’s requirements. In case of any doubts, the customer shall obtain timely advice from consultants of rising systems or from other qualified third parties.  

(2.4) If rising systems provides IT services beyond the scope of the IT Service Agreement by mutual consent with the customer (text form being sufficient), the provisions and conditions of the IT Service Agreement shall apply accordingly to such IT services.

(2.5) Unless expressly agreed otherwise in the IT Service Agreement, the project language shall be German; the project documentation may be prepared in German and/or English. To the extent that the services include the development or modification of software, any documentation of the code that may be owed may also be provided “inline,” i.e. directly in the form of comments within the code.

§ 3 Customer’s Obligations to Cooperate (Supplementary)

In addition to § 4 of the IT Services General Terms and Conditions, the following additional cooperation obligations shall apply to the customer:

(3.1) To the extent required for the performance of the services, the customer shall grant the consultants engaged by rising systems, directly or indirectly, access to software and IT systems as well as a non-exclusive right of use, limited in time to the term of the IT Service Agreement, for the contractual and intended use of the customer’s systems and applications. It shall be the responsibility of the customer to ensure the proper operation of the necessary software and IT systems. To the extent that the customer provides rising systems with content, materials, data, and information for the performance of the services, the customer shall ensure that such items are free from third-party rights that could impede the performance of the services by rising systems.

(3.2) The customer shall take appropriate precautions in the event that the IT services and/or the work results are affected by disruptions (e.g. by means of data backups, fault diagnosis, and regular inspections). Unless the customer provides an explicit written notice in an individual case, the consultants engaged by rising systems may at any time assume that all data with which they may come into contact has been backed up.

§ 4 Acceptance

(4.1) Acceptance shall take place after examination of the work results to be created within the scope of the IT services. For this purpose, rising systems may require a written declaration of acceptance and/or an acceptance protocol signed by the customer.

(4.2) If (partial) work results are defined in an IT Service Agreement, rising systems may submit each (partial) work result for acceptance.

(4.3) The customer shall examine the (partial) work results submitted for acceptance immediately after notification of completion, but no later than within ten (10) business days (hereinafter referred to as the “Acceptance Period”), and shall declare acceptance in writing and/or notify any defects in writing with a precise description. If the customer does not respond within the Acceptance Period or uses the work results without raising objections, the (partial) work result shall be deemed accepted. Insignificant defects shall not entitle the customer to refuse acceptance. In any event, the productive use, commissioning, or use of (partial) work results by the customer shall constitute acceptance of the respective (partial) work results.

(4.4) If the customer notifies defects identified within the Acceptance Period, rising systems shall classify such defects into one of the following defect categories:

Defect Category 1: The (partial) work result is affected by a defect that renders its usability impossible or unreasonably impairs it.

Defect Category 2: The (partial) work result is affected by a defect that restricts its usability to more than a merely insignificant extent, although no defect within Defect Category 1 exists.

Defect Category 3: The (partial) work result is affected by a defect that restricts its usability only to an insignificant extent.

(4.5) The customer may refuse acceptance if defects of Defect Category 1 exist or if several defects of Defect Category 2 together result in effects equivalent to Defect Category 1.

(4.6) rising systems shall remedy the defects notified pursuant to § 4.3 of these Supplementary Terms within a period appropriate to the respective defect category and shall—if acceptance has been refused—resubmit the work result to the customer for acceptance. Sections 4.3 to 4.5 of these Supplementary Terms shall apply mutatis mutandis to such acceptance and any subsequent acceptances.  

§ 5 Warranty for Work Services

(5.1) rising systems warrants that the work results created within the scope of the IT services possess the expressly agreed characteristics and that no third-party rights conflict with the granting of the rights of use agreed with the customer pursuant to § 7.3 of the IT Services General Terms and Conditions. To the extent that no express characteristics have been agreed, the warranty shall relate to the work results being suitable for the contractually intended use or, otherwise, for customary use and to having a quality that is customary for work results of this type and that the customer may reasonably expect for work results of this kind.

(5.2) The customer shall notify rising systems of any defects that arise without undue delay, providing a precise description of the problem and any information useful for remedying the defect. In the event of proven defects in quality, rising systems shall provide warranty by subsequent performance, at its discretion, either by providing the customer with a new, defect-free version of the work results or by remedying the defect. In the event of proven defects in title, rising systems shall provide warranty by subsequent performance by granting the customer a legally unobjectionable right of use to the work results or, at the discretion of rising systems, to substituted or modified equivalent work results. The customer shall accept a new version of the work results (e.g. a software update) if the contractually agreed functional scope is maintained and acceptance is not unreasonable. The urgency of defect remediation shall depend on the degree of operational impairment.

(5.3) If subsequent performance definitively fails after the unsuccessful expiry of two reasonable grace periods to be set by the customer, the customer may terminate the IT Service Agreement, declare rescission, or reduce the remuneration. However, rescission of the IT Service Agreement shall be excluded in the case of insignificant defects or deviations. Claims for damages or reimbursement of futile expenses due to a defect shall be provided by rising systems only within the limits set forth in § 9 of the IT Services General Terms and Conditions.

(5.4) The warranty period for work services shall be one (1) year from acceptance. This shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk, injury to life, body, or health, or from intentional, grossly negligent, or fraudulent conduct.